Workers Compensation Nominal Insurer (iCare) v Kamau (NSWPICPD 2024)

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Key Takeaways

The decision of President Judge Philips in Workers Compensation Nominal Insurer (iCare) v Kamau [2024] NSWPICPD 51 (Kamau) serves as a reminder regarding a number of guiding principles relevant to the determination of matters in the PIC.

The first is the need for decision makers to carefully balance the objectives of the Commission; being to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.

The second is the need to ensure that expert evidence meets the required standard.

In finding for the appellant insurer on all grounds in Kamau, President Judge Philips considered the Member had placed too great a focus on a timely resolution of the matter. The result was the exclusion of evidence critical to a just determination of the dispute.

Further, he considered the evidence upon which the Member had ultimately based her decision, fell well short of the required standard for expert opinion in the Commission.

This decision serves as a reminder to applicants and respondents alike, regarding the necessary standard of expert evidence in the Commission. It also shows what can happen if the balance between the (at times) competing interests of a fast and just resolution is not maintained.

The Member at first instance prioritised the avoidance of delay over a proper determination of the factual and medical issues. The ultimate result was exactly what she had sought to avoid, being an extensive delay brought about by the need for an appeal and ultimate resolution (via discontinuance) over 18 months after the ARD was filed.

Brief Facts

The worker was injured while installing a display at the Rouse Hill Mecca store. His colleague was up a ladder installing a board/panel and the worker was working below. Unfortunately the board/panel fell and hit the worker on the head.

In 2022, the worker brought a claim for lump sum compensation in respect of 36% WPI assessed by Dr Teychenné. Dr Teychenné’s assessment relied on a diagnosis of traumatic brain injury and incomplete high cervical cord lesion.

In response to the claim, the Nominal Insurer disputed both the alleged pathology and that the 11% WPI threshold had been satisfied. The Nominal Insurer relied on the opinion of Dr Granot. He diagnosed post-traumatic migraneous headaches which do not carry any rateable impairment.

In coming to their respective diagnoses, Dr Teychenné and Dr Granot recorded different histories regarding the dimensions and weight of the board/panel. Dr Teychenné was told it weighed 5-10kg and fell 10m. Dr Granot referenced the incident report and employer’s statement evidence which confirmed a 250g weight and a fall of approximately 1m.

The issues for determination by the Member at first instance were:

1. The composition, dimensions and weight of the object, and the distance over which it fell.
2. The exact pathology sustained by the worker.

After hearing arguments regarding the admissibility of late evidence, the Member excluded all statement and documentary evidence going to the weight of the object and the distance over which it fell. She then entered a decision in favour of the worker on the pathology question, preferring Dr Teychenné’s diagnosis to that of Dr Granot. The matter was referred for medical assessment on that basis.

Decision

An appeal against the Member’s decision was filed by the Nominal Insurer and determined by President Judge Philips on 20 August 2024.

The appeal was entirely successful with the President agreeing that:

• the Member’s decision to exclude the statement evidence and incident report relevant to the weight of the object was an error in the exercise of discretion;
• there was conflict in the evidence about the weight of the board which had to be resolved in a reasoned way. This was not done;
• the Member was wrong to make a finding that the incident was a “high-energy impact” in circumstances where there was no direct evidence to that effect, nor was it the subject of submissions;
• the Member was in error in construing and giving weight to Dr Teychenné’s opinion to substantiate the finding that the worker suffered a traumatic brain injury;
• the Member was in error in construing and giving weight to Dr Teychenné’s opinion to substantiate the finding that the worker suffered a high cord cervical lesion.

The President also observed, in some detail, that Dr Teychenné’s opinion did not meet the requirements for expert evidence in the Commission.

Implications

This decision serves to highlight the importance of ss 42 of the Personal Injury Commission Act 2020, which provides a guiding principle for the just, quick and cost effective resolution of disputes.

Parliament did not give precedence to any one imperative over the other, with the intention being that they collectively inform the Commission’s approach to dispute resolution.

The decision in Kamau illustrates what can happen if the balance between the (at times) competing interests of a fast and just resolution is not maintained.

It also serves as a reminder to parties regarding the need to ensure an appropriate standard of expert evidence is maintained.