Adamcic v JM Fitout Pty Ltd - [2024] NSWPIC 441

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Adamcic v JM Fitout Pty Ltd [2024] NSWPIC 441
APPLICANT:	Josip Adamcic
RESPONDENT:	JM Fitout Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	15 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of medically necessary hernia surgery; whether applicant suffered a work-related injury, and if so, whether the injury was a frank incident or an aggravation of an underlying condition; whether need for surgery was brought about by a work injury; Held – applicant suffered injury by way of aggravation to a hernia in the course of his employment with the respondent; applicant’s injury was caused by the nature and conditions of his employment; the proposed hernia reduction surgery is reasonably necessary as a result of the applicant’s injury; respondent to pay costs of, and incidental to, the proposed surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury by way of aggravation of an underlying hernia in the course of his employment with the respondent, with a deemed date of injury of 14 February 2023. 2. The surgical hernia repair proposed by Dr Mekisic is reasonably necessary as a result of the injury referred to in [1] above. 3. The respondent is to pay the costs of and incidental to the proposed surgery.

STATEMENT OF REASONS

BACKGROUND

The applicant, Josip Adamcic was an employed director of JM Fitout Pty Ltd (the respondent), which had provided commercial fit outs for buildings for private and public tenants from 1999.
In mid-1990s, the applicant underwent abdominal surgery in Germany. He subsequently developed an incisional hernia some years later. He alleges the nature and conditions of his employment with the respondent caused a symptomatic aggravation of the hernia which now requires surgical repair.
There is no issue the applicant requires the surgery sought. However, the respondent disputes liability and alleges the need for surgery does not come about as a result of any work-related aggravation, which aggravation it disputes.
Additionally, if the applicant is found to have suffered a work-related injury, there is a question as to the correct date of injury. For its part, the respondent alleges the applicant’s injury is a frank one which occurred in or about 2017, meaning the applicant is unable to recover compensation owing to the operation of ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered injury by way of aggravation of his hernia in the course of his employment with the respondent, and
(b) if so, the correct date of injury for that aggravation.
There is no issue the applicant requires the surgical repair of the hernia. The only issue in this matter is whether the requirement for that surgery is as a result of any work-related injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPIC 441
Decision Date: 15 August 2024

CaseChat Overview and Summary

The applicant, Adamcic, lodged a claim against JM Fitout Pty Ltd for the cost of medically necessary hernia surgery. The dispute arose from whether Adamcic suffered a work-related injury, and if so, whether the injury was a frank incident or an aggravation of an underlying condition. Additionally, the court had to determine whether the need for surgery was brought about by a work injury. The case was heard in the relevant Australian tribunal.

The primary legal issues involved the interpretation of the workers compensation act and the determination of whether Adamcic's hernia surgery was necessitated by his employment. The court had to decide whether the injury was caused by the nature and conditions of Adamcic's employment and whether the hernia reduction surgery was reasonably necessary as a result of the injury. The respondent contested the claim, arguing that the surgery was not necessitated by a work injury.

The tribunal found that Adamcic had suffered an injury by way of aggravation to a pre-existing hernia in the course of his employment with JM Fitout Pty Ltd. The court concluded that the nature and conditions of Adamcic's employment contributed to the aggravation of the hernia, and thus the injury was work-related. The tribunal further found that the proposed hernia reduction surgery was reasonably necessary as a result of the work-related injury. Therefore, the respondent was ordered to pay the costs of, and incidental to, the proposed surgery.

JM Fitout Pty Ltd was directed to pay the costs of the hernia reduction surgery, including incidental costs, to Adamcic. The tribunal's decision was based on the determination that Adamcic's injury was caused by the nature and conditions of his employment, and that the surgery was reasonably necessary to address the work-related injury.

Orders