Case: Myrvang v Australian Turf Club Limited [2023] NSWPIC 426

Date of Decision: 22 August 2023

Jurisdiction: Personal Injury Commission, John Isaken

Background

The Applicant was a track rider for the Respondent.

She suffered an injury to her lower back and neck on 28 August 2018 in the course of employment. The Respondent had accepted liability for this injury.

The Applicant was incapacitated for work as a result of the injury until November 2019, but returned to work around that time. She claimed that she continued to have back pain and had used a back brace at work.

The Applicant’s whole person impairment was assessed in December 2020, resulting in an impairment of 12%.

The Applicant then sustained a further injury to her lower back on 5 January 2021. The Respondent accepted liability for this injury and the Applicant continued to receive weekly payments of compensation until 28 July 2021 when the Respondent issued a disputed Notice dated 8 July 2021. Ongoing liability was disputed on the grounds that the effects of the 5 January 2021 injury had ceased.

The Applicant claimed that she continued to suffer the effects of the work injury and that she continued to be incapacitated for work. She claimed weekly payments from 29 July 2021 until the end of the second entitlement period.

The Applicant also returned to live in Norway on 2 November 2022.

Issues

The Commission was asked to determine the following issues:

1. Whether the Applicant continued to suffer the effects of the work injury sustained in the course of her employment with the Respondent (s 4 of the 1987 Act)
2. The extent of any incapacity suffered by the applicant as a result of the injury to her lower back (ss 32A, 33 and 37 of the 1987 Act)
3. Whether the applicant is entitled to receive weekly payments of compensation having ceased to reside in Australia (s 53 of the 1987 Act)

Decision

As to the first issue, the Commission found in the Applicant’s favour and said that she continued to suffer the effects of the work injury. Crucially, the medical evidence of the Applicant (a report from the treating specialist) was preferred over that of the Respondent’s (being a report from an independent expert). The Commission’s reasoning was that the treating specialist had the benefit of reviewing the Applicant over several occasions, as opposed to the Respondent’s expert who only reviewed the applicant on one occasion. The Respondent’s expert also did not consider the opinion of the Applicant’s treating specialist, which suggested some deficiency in that expert’s opinion. Additionally, the Respondent’s expert did not make any record of the Applicant’s symptoms, only recording complaints of pain during examination. These factors ultimately led the Commission to prefer other medical evidence.

As to the second issue, the Commission determined that the Certificates of Capacity issued from at least the middle of 2022 until October 2023, which certified the Applicant has having no capacity for work, was not consistent with what the Applicant was doing during that period. The Applicant was then able to participate in tertiary education, and had the ability to read, take notes, use a computer and prepare written material for assessment. Accordingly, the Commission determined that the Applicant had at least some capacity to do work of a clerical or administrative nature during that period. It was determined that Applicant had no capacity from 29 July 2021 to 19 September 2021, but she had partial incapacity between 1 October 2021 and 30 June 2022.  The Applicant’s awards for weekly payments of compensation were adjusted to reflect her retained earning capacity.

As to the third issue, the Respondent argued that the Applicant could not receive the benefit of s 53 because she had not made her application before she left Australia. The Commission however, determined that s 53 sought to address whether a worker would continue to receive the weekly payment once the worker has left Australia and is able to establish permanent incapacity. In the circumstances, s 53 had no effect on the workers award of weekly payments.

Key Lessons for Employers & Insurers

1. According to ‘Procedural Direction PIC- Expert Witness Evidence’, an expert’s written report should include (among others), “the facts, matters and assumptions on which the opinions in the report are based”. Extra care should be taken to ensure that an expert has had consideration of all available medical evidence, so that the expert’s evidence is neither lacking in factual foundations, nor based on incorrect information or assumptions. Where an expert has not properly considered all available evidence, supplementary opinions should be sought. Additionally, one should not underestimate the utility in having a worker examined by the same expert over multiple occasions.
2. Case managers and rehabilitation providers should be involved in case management and question treaters, especially when a worker’s certified capacity has changed for the worse in the absence of any intervening events or degenerative conditions. It is imperative that treaters explain the rationale for any change in certification or treatment recommendations so that a full appreciation of a worker’s condition can be had, which will assist in tailoring medical treatment and vocational rehabilitation to fit the circumstances of the worker.
3. There is no procedural requirement under s 53 of the Act for workers to prove their permanent incapacity prior to their departure from Australia. If a worker’s incapacity is of a permanent nature and they have left Australia, they remain entitled to receive weekly payments of compensation.

Contributor: Justin Heng

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.