Worrall v State of New South Wales (NSW Police Force)
[2024] NSWPIC 248
•4 June 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Worrall v State of New South Wales (NSW Police Force) [2024] NSWPIC 248 |
| APPLICANT: | Robert Worrall |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| MEMBER: | Anne Gracie |
| DATE OF DECISION: | 4 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation pursuant to section 66 for additional consequential injuries to the left hip and lumbar spine; the applicant had already been compensated for 8% whole person impairment of the left lower extremity (left ankle) in 2021; applicant is an exempt worker; consideration of applicant’s statement, medical reports and other treatment records, claim correspondence, and factual material; Kumar v Royal Comfort Bedding Pty Ltd, McCarthy v Patrick Stevedores No 1 Pty Limited, Grant v Dateline Imports Pty Ltd, Hancock v East Coast Timber Products Pty Ltd, Kooragang Cement Ltd v Bates, Guthrie v Spence, Strinic v Singh, Purkess v Crittenden, Mason v Demasi, Arquero v Shannons Anti Corrosion Engineers Pty Ltd, Moon v Conmah Pty Ltd, Abou-Haidar v Consolidated Wire Pty Ltd, Welsh v Dandan Management Services Pty Ltd; and Voudouris v TDV Constructions Pty Ltd; Held – the applicant has developed a consequential injury to his left hip and his lumbar spine arising out of an injury he sustained to his left ankle on 9 June 2017. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant has developed a consequential injury to his left hip and his lumbar spine arising out of an injury he sustained to his left ankle on 9 June 2017. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment of the left lower extremity (left hip) and the lumbar spine which have developed as a consequence of an injury the applicant sustained to his left ankle on 9 June 2017. 3. The Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments. The report from Dr J Bodel dated 11 June 2020 attached to the Reply at page 14 is provided to the Medical Assessor for the purpose of history only; (c) Application to Admit Late Documents and attachments filed by the respondent; (d) Certificate of Determination dated 14 May 2024 and Statement of Reasons dated 14 May 2024; (e) Amended Certificate of Determination and Further Statement of Reasons dated 4 June 2024; (f) applicant’s written submissions addressing the medical specialist referral dated 27 May 2024, and (g) respondent’s written submissions addressing the medical specialist referral dated 31 May 2024. 4. Following the Medical Assessment, the matter is to be referred back to me to address any outstanding matters, if necessary. |
FURTHER STATEMENT OF REASONS
BACKGROUND
On 14 May 2024, a Certificate of Determination and Reasons for Decision was issued in this matter. Following consideration of the evidence and oral submissions it was determined that Robert Worrall (the applicant) had developed a consequential injury to his left hip and his lumbar spine arising out of an injury he sustained to his left ankle on 9 June 2017.
The claim made by the applicant was for benefits pursuant to s 66 and s 67 of the Workers Compensation Act 1987 (the 1987 Act). The applicant had made a claim for s 66 benefits for an injury to the left ankle and consequential injuries to the left hip and the lumbar spine based on a report from Dr Giblin dated 29 August 2022, who provided assessments of 6% whole person impairment of the lumbar spine, 2% whole person impairment of the left hip and 3% whole person impairment of the left ankle providing a combined assessment of 11%.
It should be noted that the applicant had already received compensation pursuant to s 66 of the 1987 Act for 8% whole person impairment of the left ankle which had been agreed between the parties on 11 May 2021 and was the subject of a Complying Agreement (page 3 of the Reply). It should also be noted that the applicant is a police officer and therefore his further claim pursuant to s 66 of the 1987 Act is not subject to the 2012 amendments to the 1987 Act.
In the notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), issued by the insurer of the State of New South Wales (NSW Police Force) (the respondent) in response to the claim dated 1 March 2024 (page 4 of the Application to Resolve a Dispute (ARD)), the respondent disputed that the applicant was entitled to permanent impairment lump sum compensation for the injury to the left ankle on 9 June 2017 and disputed liability for the consequential injuries to the left hip, lumbar spine and thoracic spine. In relation to the left ankle, the respondent advised that it did not believe that the applicant was eligible for further permanent impairment lump sum compensation for the left ankle because the applicant’s accepted physical injury to the left ankle had not resulted in further impairment as required by s 66 (1) of the 1987 Act.
At the conciliation/arbitration on 30 April 2024, neither party addressed me on this issue in dispute.
As a result of my findings in favour of the applicant in respect of the left hip and the lumbar spine, in the absence of agreement between the parties, it was necessary for me to order written submissions from the parties as to whether or not the left ankle should be included in the referral to a medical specialist.
Counsel for the applicant, Mr Adhikary, filed written submissions on behalf of the applicant dated 24 May 2024. The solicitor for the respondent, Ms Malone, filed written submissions on behalf of the respondent dated 31 May 2024.
I have read those submissions.
FINDINGS AND REASONS
The applicant submits that the left ankle should not be included in the referral to the medical specialist. The applicant submits that a medical dispute in respect of whole person impairment only exists in respect of the left hip and the lumbar spine. The applicant concedes that the assessment provided by Dr Giblin did not support a claim for further lump sum compensation with respect to the left ankle.
The applicant’s concession and submissions in this respect are consistent with the reasons relied upon by the respondent in the respondent’s s 78 Notice dated 1 March 2024.
In the written submissions relied upon by the respondent, the respondent now seeks to argue that the left ankle should be included in the referral to the medical specialist. This submission is contrary to the dispute raised in the respondent’s s 78 notice. The reasons put forward by the respondent in its submissions were not included in the s 78 Notice dated 1 March 2024. In fact, the s 78 Notice specifically addressed the claim for the left ankle and maintained that the applicant was not eligible for further permanent impairment lump sum compensation because the applicant’s accepted physical injury to his left ankle had not resulted in further impairment as required by s 66(1) of the 1987 Act.
I do not accept the respondent’s written submissions that the left ankle should be included in the referral to the medical specialist. The respondent had put the issue of a further claim for whole person impairment of the left ankle in dispute in their s 78 notice. The s 78 notice correctly identified that the assessment from Dr Giblin in relation to the left ankle, upon which the applicant sought to rely, was less than the assessment of whole person impairment that the applicant had already been compensated for and did not support a further claim in respect of whole person impairment of the left ankle.
The respondent has sought to distinguish the authorities of Voudouris v T D V Constructions Pty Ltd [2023] NSWPICPD 53 and Walsh v Dandan Management Services Pty Limited W4997/22, 3 November 2022 that I had referred to in the preliminary view that I expressed to the parties in my Statement of Reasons dated 14 May 2024 on the basis that these two decisions were dealing with 0% assessments of whole person impairment.
I do not agree with the submission now put forward by the respondent. The assessment provided by Dr Giblin was less than the assessment of whole person impairment that had been agreed upon between the parties and the subject of the Complying Agreement dated 11 May 2021. I prefer the commonsense approach taken by Roche DP in the matter of Abou-Haider v ConsolidatedWire Pty Limited [2010] NSWWCCPD 128 where he stated:
“A worker must make a claim under s 282 and support that claim with a whole person impairment assessment in the proper form from a WorkCover trained assessor. If the assessment is the same as in a previous award or order of the Commission, there will be no basis for referral to an AMS. If the assessment is higher than in a previous award or order, then, assuming that there are no liability issues in dispute, the Registrar will refer the matter to an AMS for further assessment.”
I also do not agree with the respondent’s submission that the applicant was represented by the same legal practitioners in respect of the claim for 8% whole person impairment based on the report from Dr Bodel dated 11 June 2020 which resulted in the parties entering into a Complying Agreement for 8% whole person impairment of the left ankle and the claim for whole person impairment that was before me. In the reasons for decision in the s 78 Notice, the respondent confirms that the applicant was examined by Dr Bodel “at the request of” his “former solicitors.” It is clear the applicant was represented by Slater and Gordon Limited in respect of the Complying Agreement settlement and the applicant was represented in respect of the claim that was before me by Don Cameron and Associates.
Under s 3 (c) of the Personal Injury Commission Act2020 (the PIC Act) one of the objectives of the Commission is to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
With this in mind, I am of the opinion that the left ankle should not be included in the referral to the medical specialist. The applicant has already received lump sum compensation for 8% whole person impairment in respect of the left ankle. The assessment provided by Dr Giblin in respect of the left ankle was for 3% whole person impairment. The applicant has not demonstrated that there has been any further impairment as required by s 66 (1) of the 1987 Act in respect of his left ankle and in those circumstances the left ankle will not be included in the referral to the medical specialist appointed by the Personal Injury Commission.
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