Welsh v Dandan Management Services Pty Ltd - [2022] NSWPIC 609

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Welsh v Dandan Management Services Pty Ltd [2022] NSWPIC 609
APPLICANT:	Shane Welsh
RESPONDENT:	Dandan Management Services Pty Limited
Member:	Gaius Whiffin
DATE OF DECISION:	3 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for injury to right lower extremity; claim for lump sum compensation for permanent impairment pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act); claim disputed by respondent and medical assessment required pursuant to section 319 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); injury to right ankle conceded by respondent but no assessment of any permanent impairment made (where assessments of permanent impairment otherwise made regarding the right hip, thigh, knee, calf, and scarring); consideration of applicant’s statement, medical reports and other treatment records and claim correspondence; consideration of whether the injury to the applicant’s right ankle forms part of the medical dispute to be referred to a Medical Assessor pursuant to section 319 of the 1998 Act; Shankar v Ceva Logistics (Australia) Pty Limited, Guzman v Trade West Pty Limited, Skates v Hills Industries Limited, Woolworths Limited v Stafford, Abou-Haidar v Consolidated Wire Pty Limited, Apps v Secretary, Department of Communities and Justice, McPherson v Mitre 10 Australia Pty Limited, Sukkar v Adonis Electrics Pty Limited and Etherton v ISS Property Services Pty Limited considered; Held – the injury to the applicant’s right ankle does not form part of the medical dispute to be referred to a Medical Assessor in accordance with section 319 of the 1998 Act as it does not form part of the applicant’s valid claim for lump sum compensation pursuant to section 66 of the 1987 Act; the medical dispute in relation to the other body systems/parts which had permanent impairment assessments made is remitted to the President for referral to a Medical Assessor in accordance with section 319 of the 1998 Act.
determinations made:	1. The injury to the applicant’s right ankle does not form part of the medical dispute to be referred to a Medical Assessor in accordance with s 319 of the Workplace Injury Management and Workers Compensation Act1998, as it does not form part of the applicant’s valid claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987.
ORDERS MADE:	2. The dispute is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment as follows: (a) date of injury: 4 May 2020, and (b) body systems/parts: right lower extremity (hip, thigh, knee, and calf), scarring (TEMSKI). 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents, and (b) respondent’s Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

Shane Welsh (the applicant) is 39 years old. He was employed by Dandan Management Services Pty Limited, trading as Quest Collision Centre (the respondent) as a quality control checker, from 4 May 2019. He no longer…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Welsh v Dandan Management Services Pty Ltd

Details

AGLC: Welsh v Dandan Management Services Pty Ltd [2022] NSWPIC 609
Case: [2022] NSWPIC 609
Decision Date: 3 November 2022

CaseChat Overview and Summary

The applicant, Mr Welsh, sought compensation from Dandan Management Services Pty Ltd for injuries sustained in the course of employment. He claimed compensation for his right lower extremity, specifically seeking a lump sum for permanent impairment under section 66 of the Workers Compensation Act 1987. The respondent contested the claim, necessitating a medical assessment under section 319 of the Workplace Injury Management and Workers Compensation Act 1998. Although the respondent conceded the injury to Mr Welsh’s right ankle, no assessment was made regarding any permanent impairment related to this injury, despite assessments being made for other body parts.

The central legal issue before the court was whether the injury to Mr Welsh's right ankle should be included in the medical dispute to be referred to a Medical Assessor. This hinged on whether the ankle injury formed part of his valid claim for lump sum compensation under section 66 of the 1987 Act. The court needed to determine if the absence of an impairment assessment for the ankle injury warranted its exclusion from the referral process, contrasting it with other body parts where such assessments had been completed.

The court concluded that the injury to Mr Welsh's right ankle did not constitute part of the medical dispute to be referred to a Medical Assessor because it did not form part of his valid claim for lump sum compensation. The court noted that the respondent had conceded the injury but had not assessed any permanent impairment, unlike the other body parts where assessments had been conducted. Therefore, the medical dispute concerning the other body systems and parts, which had permanent impairment assessments, was to be remitted to the President for referral to a Medical Assessor in accordance with section 319 of the 1998 Act. This decision was guided by relevant precedents including Shankar v Ceva Logistics (Australia) Pty Limited and others.

Orders