Glogoski v Workers Compensation Nominal Insurer [2019] NSWDC 154

Glogoski v Workers Compensation Nominal Insurer [2019] NSWDC 154

The plaintiff failed to discharge the onus under s 151A(5)(c) because the contemporaneous medical evidence showed permanent restrictions against heavy or moderately heavy lifting, recurrence of symptoms, lumbar pain and restricted movement, potential for increased impairment, guarded prognosis, and no medical opinion that he would improve. On that evidence it would not be unreasonable to believe that the further deterioration that occurred would occur.

Jurisdiction
Australia
Judgment Date
03 May 2019
Procedural Posture
Civil Workers Compensation Summons Seeking Leave to Revoke an Election to Claim Permanent Loss Compensation / Hearing of Plaintiff's Summons Filed 8 February 2019
Outcome
Plaintiff's Summons dismissed; plaintiff ordered to pay the defendant's costs.
Legal Topics
['revocation of Election to Claim Permanent Loss Compensation' 'further Material Deterioration' 'section 151 A(5)(c) Workers Compensation Act 1987 (nsw)' 'onus of Proof' 'medical Prognosis at Time of Election']
['workers Compensation' 'personal Injury' 'civil Procedure'] ['revocation of Election to Claim Permanent Loss Compensation' 'further Material Deterioration' 'section 151 A(5)(c) Workers Compensation Act 1987 (nsw)' 'onus of Proof' 'medical Prognosis at Time of Election']

Case Brief

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Procedural Posture

Civil Workers Compensation Summons Seeking Leave to Revoke an Election to Claim Permanent Loss Compensation / Hearing of Plaintiff's Summons Filed 8 February 2019

Legal Issues

  1. 1 ["Whether, at the time of the plaintiff's election to receive lump sum compensation on 21 August 2001, there was no reasonable cause to believe that further deterioration would occur within s 151A(5)(c) of the Workers Compensation Act 1987 (NSW)."]

Ratio Decidendi

The plaintiff failed to discharge the onus under s 151A(5)(c) because the contemporaneous medical evidence showed permanent restrictions against heavy or moderately heavy lifting, recurrence of symptoms, lumbar pain and restricted movement, potential for increased impairment, guarded prognosis, and no medical opinion that he would improve. On that evidence it would not be unreasonable to believe that the further deterioration that occurred would occur.

Court Disposition

Plaintiff's Summons dismissed; plaintiff ordered to pay the defendant's costs.

Orders

  • ["Plaintiff's Summons dismissed" "Order the plaintiff to pay the defendant's costs"]