Bennell v Willoughby City Council - [2022] NSWPIC 52

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bennell v Willoughby City Council [2022] NSWPIC 52
APPLICANT:	Cameron Bennell
RESPONDENT:	Willoughby City Council
MEMBER:	Michael Wright
DATE OF DECISION:	8 February 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) for cost of proposed cervical surgery as a result aggravation of degenerative disease condition as a result of heavy lifting at work for the respondent from 1997; initial presentation for treatment arising from unrelated circumstances of awkward sleeping in a foldout hospital bed while staying with seriously ill son in ICU; consideration of factual and medical opinion; deemed date of injury for proposed surgery pursuant to section 16 of the 1987 Act; Held - employment was the main contributing factor in the aggravation of the disease condition; award for the applicant.
DETERMINATIONS MADE:	1. Right C6/7 foraminotomy and posterior discectomy proposed by Dr Parkinson (the proposed surgery) is reasonably necessary as a result of aggravation of underlying degenerative cervical spine disease condition as a result of the applicant’s employment with the respondent, with injury deemed to have happened on 24 September 2019.
ORDERS MADE:	2. The respondent to pay the costs of and related to the proposed surgery in accordance with section 60 of the Workers Compensation Act 1987. 3. Liberty to apply in respect of deemed date of injury.

STATEMENT OF REASONS

BACKGROUND

This is an application by Cameron Bennell (the applicant) for the cost of right C6/7 foraminotomy and posterior discectomy proposed by Dr Parkinson (the proposed surgery) as a result of aggravation of degenerative cervical spine disease condition arising out of or in the course of the applicant’s employment with Willoughby City Council (the respondent).
In a section 78 notice dated 29 September 2020 the respondent disputed that the applicant’s cervical spine condition was a disease to which employment was the main contributing factor to the contraction or aggravation of the disease as required by section 4(b) of the Workers Compensation Act 1987 (the 1987 Act). Also disputed was whether the proposed surgery was reasonably necessary. In a section 287A review notice dated 24 August 2021 the respondent maintained its previous decision.

PROCEDURE BEFORE THE COMMISSION

The applicant was represented at the conciliation/arbitration hearing of this matter on 18 November 2021 by Mr Carney of counsel, instructed by Ms Tavianatos, solicitor, and the respondent by Mr Saul of counsel, instructed by Ms Maiuolo, solicitor.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Prior to the conclusion of the hearing, leave was granted to the applicant to amend the deemed date…

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: [2022] NSWPIC 52
Decision Date: 8 February 2022

CaseChat Overview and Summary

Bennell initiated proceedings against Willoughby City Council seeking compensation under section 60 of the Workers Compensation Act 1987 for the cost of proposed cervical surgery. The surgery was necessitated by the aggravation of a degenerative disease condition, which the applicant attributed to heavy lifting performed during employment from 1997. The initial presentation for treatment occurred due to unrelated circumstances, specifically awkward sleeping in a foldout hospital bed while staying with his seriously ill son in the intensive care unit. The court was required to consider the factual and medical evidence presented and determine whether employment was the main contributing factor in the aggravation of the disease condition. The key issue was to establish the deemed date of injury for the proposed surgery under section 16 of the 1987 Act.

The court examined the evidence and found that the employment was indeed the main contributing factor in the aggravation of the disease condition. The applicant's heavy lifting at work from 1997 played a significant role in exacerbating the degenerative disease. The court held that the aggravation of the condition was not solely due to the unrelated circumstances of sleeping in the foldout hospital bed. Consequently, the court determined that the deemed date of injury for the proposed surgery was linked to the employment. The applicant was awarded compensation for the cost of the proposed cervical surgery.

The court's decision was based on a thorough examination of the facts and medical evidence. The court found that the employment was the primary contributing factor in the aggravation of the degenerative disease condition. The court's ruling recognised the applicant's entitlement to compensation for the cost of the proposed surgery under section 60 of the Workers Compensation Act 1987. The court determined that the aggravation of the condition was not solely due to the unrelated circumstances of sleeping in the foldout hospital bed. The applicant was thus awarded compensation for the cost of the proposed cervical surgery.

Orders