Wilson v Cessnock City Council - [2021] NSWPIC 497

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wilson v Cessnock City Council [2021] NSWPIC 497
APPLICANT:	Troy Wilson
RESPONDENT:	Cessnock City Council
MEMBER:	Philip Young
DATE OF DECISION:	2 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Credibility of witness; capacity and economic loss; council worker alleging frank injury right hip and leg; respondent attacks absence of complaint and performance under cross examination and late reporting; Held - applicant’s history hampered by applicant’s understanding level; award in favour of the applicant.
DETERMINATIONS MADE:	1. The applicant in the course of his employment with the respondent on 17 June 2020 suffered injury to his right hip and right leg. 2. Award in favour of the applicant in respect of weekly payments of compensation from 28 July 2020 pursuant to section 36 of the Workers Compensation Act 1987 (1987 Act) for a period of 13 weeks at 95% of the applicant’s pre-injury average weekly earnings (PIAWE) of $1,340.81 less $312.50 per week namely $1,028.31 per week. 3. Award in favour of the applicant in respect of weekly payments of compensation pursuant to section 37 of the 1987 Act from week 14 to date and continuing at 80% of the PIAWE namely $1,129.11 less $312.50 per week namely $816.61 per week. 4. General award in favour of past and future section 60 medical expenses concerning the applicant’s right hip and right leg injuries including a declaration pursuant to section 60 (5) that the proposed right hip replacement surgery is reasonably medical treatment resulting from injury of 17 June 2020.

STATEMENT OF REASONS

BACKGROUND

Troy Wilson (the applicant) is a 41 year old man who was employed by Cessnock City Council (the respondent) as a team leader in its maintenance section.
The applicant alleges that on 17 June 2020 whilst getting out of a truck he fell and landed on his right leg and suffered a jarring injury to his right leg and hip.
The applicant makes claims for weekly payments of compensation pursuant to sections 36 and 37 of the Workers Compensation Act 1987 (1987 Act) as well as section 60 claims for past treatment expenses and future right total hip replacement surgery.
The claim for weekly payments was pleaded as commencing on 17 June 2020, however, the applicant’s written submissions choose 28 July 2020 as the commencement date. The applicant’s pre-injury average weekly earnings (PIAWE) are agreed.

ISSUES

The issues appear in the respondent’s written submissions. In general terms they are:
(a)    Is the applicant a reliable historian and did he suffer any injury on 17 June 2020? It is suggested that although the applicant saw his long-standing general practitioner, Dr Wang, on several occasions after 17 June 2020 it was not until 13 August 2020 that the applicant informed Dr Wang “this maybe work-related injury”.
(b)    The applicant’s credit is challenged for other reasons, including his performance under cross-examination.
(c)    The applicant was late in reporting his injury to the respondent, notwithstanding that he was aware of the operation of the workers compensation system.

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 497
Decision Date: 2 December 2021

CaseChat Overview and Summary

The applicant, Wilson, brought an action against the respondent, Cessnock City Council, seeking compensation for injuries sustained during the course of employment. Wilson, a council worker, claimed to have suffered a frank injury to his right hip and leg. The court was tasked with determining the credibility of Wilson's testimony, his capacity for work, and the extent of any economic loss suffered. The respondent argued that Wilson's absence of complaints and performance under cross-examination, as well as his late reporting of the injury, undermined his credibility and capacity for work.

The court considered the credibility of Wilson's evidence, noting his limited understanding which had hampered his history. Despite the respondent's arguments, the court found that Wilson's credibility was not significantly impacted by his late reporting or the absence of complaints. The court assessed Wilson's capacity for work and determined that he had suffered a genuine injury that affected his ability to perform his duties. The respondent's attacks on Wilson's capacity and credibility were not sufficient to outweigh the evidence presented.

In reaching its decision, the court found in favour of Wilson, awarding him compensation for his injuries. The court recognised the challenges faced by Wilson in providing his history due to his limited understanding, and found that these challenges did not undermine the overall credibility of his claims. The court awarded Wilson compensation for his economic loss, taking into account his diminished capacity for work as a result of his injury. The court ordered the respondent to pay the compensation as determined.

Orders