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Brown v Shellbelt Pty Limited

Brown v Shellbelt Pty Limited

Case [2021] NSWPIC 357 20 September 2021

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CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Brown v Shellbelt Pty Limited [2021] NSWPIC 357
APPLICANT:	Gregory Wayne Brown
RESPONDENT:	Shellbelt Pty Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	20 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for costs of and incidental to reverse right total shoulder replacement surgery; work injuries to right hip previously determined in applicant’s favour by the Workers Compensation Commission; evidence of ongoing falls including three resulting in impact upon right shoulder; pre-existing symptomatic pathology at right shoulder; whether consequential right shoulder condition; whether proposed surgery reasonably necessary as a result of hip injuries; Held - Murphy v Allity Management Services Pty Ltd and Taxis Combined Services (Victoria) Pty Ltd v Schokman applied; falls and impacts upon the right shoulder causing an increase in pathology and symptoms causally related to the hip injuries; most recent fall brought forward the need for surgery; award for the applicant pursuant to section 60 of the Workers Compensation Act 1987.
DETERMINATIONS MADE:	1. The applicant sustained a consequential right shoulder condition as a result of the injuries to his right hip on 1 April 2014 and 8 June 2014. 2. The right reverse total shoulder replacement surgery proposed by Dr Mark Robinson is reasonably necessary as a result of the injuries to the applicant’s right hip on 1 April 2014 and 8 June 2014.
ORDERS MADE:	1. Pursuant to s 60 of the Workers Compensation Act 1987 the respondent to pay the costs of and incidental to the right reverse total shoulder replacement surgery proposed by Dr Mark Robinson.

STATEMENT OF REASONS

BACKGROUND

Mr Gregory Wayne Brown (the applicant) was employed by Shellbelt Pty Limited (the respondent) as a kitchen designer.
In previous proceedings lodged in the former Workers Compensation Commission[1] in 2015, the applicant was found to have sustained an injury to his right hip in the course of or arising out of his employment with the respondent on 1 April 2014 and 8 June 2014. A total hip replacement surgery performed on 23 June 2015 was determined to have been reasonably necessary as a result of the hip injuries.
[1] Workers Compensation Commission 2421/15
Following the hip surgery, the applicant had a number of falls which he claims have resulted in a consequential right shoulder condition.
On 6 October 2015, the applicant was getting out of his car on the right side when his right leg collapsed and he fell, putting out his right arm to break his fall.
On 4 September 2016, the applicant was walking upstairs at his home when his right hip gave way causing him to fall heavily on his outstretched right hand.

On 9 January 2021, the applicant had a further fall as a result of his right leg/hip giving way. The applicant again put out his right hand to prevent the fall.
On 22 January 2021, the applicant sought approval from the respondent’s insurer for the costs of and incidental to a right reverse total shoulder replacement to be performed by orthopaedic…

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.

Continue reading Brown v Shellbelt Pty Limited

Details

AGLC: Brown v Shellbelt Pty Limited [2021] NSWPIC 357
Case: [2021] NSWPIC 357
Decision Date: 20 September 2021

CaseChat Overview and Summary

In the case of Brown v Shellbelt Pty Limited, the applicant, Brown, sought compensation from the respondent, Shellbelt, for the costs associated with a reverse right total shoulder replacement surgery. The surgery was necessitated by injuries to Brown's right hip, which had previously been determined to be work-related by the Workers Compensation Commission. Brown's claim was based on the argument that the hip injuries had led to ongoing falls, including three incidents where Brown had fallen and impacted his right shoulder, exacerbating pre-existing shoulder pathology. Brown argued that the resultant right shoulder condition was a consequence of the hip injuries, making the proposed surgery reasonably necessary. The court had to determine whether the proposed surgery was a direct result of the work-related hip injuries.

The legal issues at hand were whether the right shoulder condition was a consequential injury resulting from the hip injuries, and if the proposed surgery was reasonably necessary as a consequence of those injuries. The court applied the principles established in Murphy v Allity Management Services Pty Ltd and Taxis Combined Services (Victoria) Pty Ltd v Schokman to assess the causal link between the hip injuries and the shoulder condition. The court had to consider whether the falls and impacts on the right shoulder, which were a result of the hip injuries, had increased the pathology and symptoms in the right shoulder, making the surgery necessary.

The court found that the falls and impacts upon the right shoulder had indeed caused an increase in pathology and symptoms, which were causally related to the hip injuries. The most recent fall had brought forward the need for surgery, establishing a clear causal link between the work-related hip injuries and the right shoulder condition. As a result, the court ruled in favour of the applicant, awarding compensation for the costs of and incidental to the reverse right total shoulder replacement surgery under section 60 of the Workers Compensation Act 1987. The court's decision recognised the consequential nature of Brown's shoulder injury and the necessity of the surgery as a result of the original work-related hip injuries.

Orders