Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56

Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56

The Deputy President erred in point of law. The spinal injuries sustained in later incidents were materially contributed to by the spinal injuries suffered in the 14 November 2011 incident and therefore resulted from and arose out of that first incident. Because the right shoulder injury also arose out of the first incident, s 65(2) of the Workers Compensation Act 1987 (NSW) and s 322(3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) required all relevant injuries and resulting impairments to be treated as one injury and assessed together. The 3% WPI for the right shoulder injury should therefore have been aggregated with the 12% WPI for the spinal injuries,...

Jurisdiction
Australia
Judgment Date
12 April 2021
Procedural Posture
Workers Compensation Appeal Concerning Permanent Impairment Compensation / Application for Leave to Appeal and Appeal From a Decision of a Presidential Member of the Workers Compensation Commission
Outcome
Leave to appeal granted and appeal allowed.
Legal Topics
['permanent Impairment Compensation' 'aggregation of Whole Person Impairment' 'injuries Arising Out of the Same Incident' 'appeal on a Point of Law' 'presumption From Amendment']
['workers Compensation' 'statutory Interpretation'] ['permanent Impairment Compensation' 'aggregation of Whole Person Impairment' 'injuries Arising Out of the Same Incident' 'appeal on a Point of Law' 'presumption From Amendment']

Case Brief

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Procedural Posture

Workers Compensation Appeal Concerning Permanent Impairment Compensation / Application for Leave to Appeal and Appeal From a Decision of a Presidential Member of the Workers Compensation Commission

Legal Issues

  1. 1 ['Whether leave to appeal should be granted under s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).' 'Whether the Deputy President erred in point of law by construing s 322(2) and (3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) so as not to assess together the impairment from the right shoulder injury and the impairment from spinal injuries.' 'Whether injuries suffered in later incidents that were materially contributed to by injuries from the first incident arose out of or resulted from the first incident for the purposes of s 65(2) of the Workers Compensation Act 1987 (NSW) and s 322(3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).' 'Whether Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; (2008) 7 DDCR 288 or the presumption from amendment required s 322(3) to be read down.']

Ratio Decidendi

The Deputy President erred in point of law. The spinal injuries sustained in later incidents were materially contributed to by the spinal injuries suffered in the 14 November 2011 incident and therefore resulted from and arose out of that first incident. Because the right shoulder injury also arose out of the first incident, s 65(2) of the Workers Compensation Act 1987 (NSW) and s 322(3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) required all relevant injuries and resulting impairments to be treated as one injury and assessed together. The 3% WPI for the right shoulder injury should therefore have been aggregated with the 12% WPI for the spinal injuries,...

Court Disposition

Leave to appeal granted and appeal allowed.

Orders

  • ['Grant leave to appeal.' 'Direct that within 14 days Ms Ozcan file and serve a notice of appeal in the form provided to the Court.' 'Set aside the orders made by Deputy President Wood in her determination of 21 April 2020.' 'In lieu thereof, order that the respondent pay compensation to Ms Ozcan pursuant to s 66 of...