Whelan v Stowe Australia Pty Ltd - [2021] NSWPIC 5

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Whelan v Stowe Australia Pty Ltd [2021] NSWPIC 5
APPLICANT:	Liam Whelan
RESPONDENT:	Stowe Australia Pty Ltd
MEMBER:	Kerry Haddock
DATE OF DECISION:	5 March 2021
CATCHWORDS:	WORKERS COMPENSATION- claim for weekly benefits and medical expenses as result of injury to lumbar spine on 24 May 2018; 9 September 2018 (deemed) and 23 January 2019 (deemed); dispute as to injury; and whether notice of injury had been given and claim made in accordance with requirements of section 254 and section 261 of Workplace Injury Management and Workers Compensation Act 1998; pre-existing lumbar spine injury; lack of contemporaneous report of injury and medical evidence; weight to be given to medical evidence; “Sense of actual persuasion” – Nguyen vCosmopolitan Homes [2008] NSWCA 246; Held- award for the respondent as the applicant had not discharged the onus of proving injury.
DETERMINATIONS MADE:	1. That there is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Liam Whelan, was employed by the respondent, Stowe Australia Pty Ltd, as a telecommunications technician.
Mr Whelan claims to have sustained an injury to his back on 24 May 2018; in the alternative on 9 September 2018 (deemed date); and in the second alternative on 23 January 2019 (deemed date). The injuries on 9 September 2018 and 23 January 2019 are claimed to have been due to the aggravation, acceleration, exacerbation or deterioration of a disease.
Mr Whelan claims weekly benefits from 10 September 2018 to 12 November 2018; and from 6 February 2019 to date and continuing; and medical expenses of $10,000 pursuant to section 66 of the Workers CompensationAct 1987, (the 1987 Act) being the cost of surgery performed by Dr Brian Hsu in January 2020.
The respondent’s insurer, Employers Mutual NSW Limited (EML) issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 13 March 2019. It disputed liability for CT guided lumbar epidural injection at L5/S1, on the grounds that EML did not have medical evidence to support approval for the treatment.
On 8 April 2019, EML issued a further section 78 notice, disputing liability for the applicant’s claim for compensation for injury on 24 May 2018. Liability was disputed on the grounds that the applicant had failed to give notice of the injury and make a claim within the time prescribed by sections 254 and 261 of the 1998 Act; the injury did not arise out of employment as required by section 4 of the 1987 Act; employment was not a substantial contributing factor to the injury, pursuant to section 9A of the 1987 Act; and employment was not the main contributing factor to the disease injury, pursuant to section 4(b) of the 1987 Act. EML therefore disputed that the applicant was entitled to either weekly benefits or medical expenses.
The applicant’s solicitors requested a review of the decision, which was confirmed by EML by notice…

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.

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Details

Case: [2021] NSWPIC 5
Decision Date: 5 March 2021

CaseChat Overview and Summary

In the case of Whelan v Stowe Australia Pty Ltd, the applicant sought weekly benefits and medical expenses from the respondent for injuries sustained to his lumbar spine on 24 May 2018. The respondent issued a Notice of Dispute on 9 September 2018 and a Notice of Dispute (Deemed) on 23 January 2019, both in relation to the applicant's claim. The primary dispute centred on whether the injury claimed by the applicant was the result of the incident on 24 May 2018 or a pre-existing condition, and if the notice of injury and subsequent claim were made in accordance with the requirements of section 254 and section 261 of the Workplace Injury Management and Workers Compensation Act 1998.

The court had to determine the weight to be given to the medical evidence presented and whether the applicant had discharged the onus of proving that the injury arose from the incident on 24 May 2018. The applicant argued that the "sense of actual persuasion" as outlined in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 should apply, but the court found that the applicant had failed to establish the necessary proof. The lack of a contemporaneous report of the injury and the absence of medical evidence supporting the applicant's claim were significant factors in the court's reasoning. Consequently, the court found in favour of the respondent, ruling that the applicant had not demonstrated that the injury was caused by the incident on 24 May 2018.

The final orders of the court dismissed the applicant's claim for weekly benefits and medical expenses. The court held that the applicant had not discharged the onus of proving the injury. The decision underscores the importance of contemporaneous reporting and adequate medical evidence in workers' compensation claims, as well as the court's application of the "sense of actual persuasion" in evaluating such claims.

Orders