Conlan v Gunnedah Shire Council - [2023] NSWPIC 226

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Conlan v Gunnedah Shire Council [2023] NSWPIC 226
APPLICANT:	David Conlan
RESPONDENT:	Gunnedah Shire Council
Member:	Brett Batchelor
DATE OF DECISION:	16 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim by applicant worker for the cost of left shoulder replacement surgery; based on a frank incident in which the applicant was involved; conceded by the respondent; and also the ‘nature and conditions’ of the heavy work in which the applicant was engaged over the period of his employment with the respondent; denied by the respondent; the respondent claimed that the effects of the frank injury which aggravated a pre-existing degenerative condition in the shoulder and had ceased by the time the applicant was independently medically examined by the orthopaedic surgeon retained by the respondent’s insurer; Held – on the applicant’s evidence and the histories recorded by the medical practitioner(s) who treated him and medico-legally assessed him, there was sufficient material to support a ‘nature and conditions’ injury as aggravating the pre-existing degenerative condition in the shoulder, as well as the frank incident as being causative of such aggravation; finding that the aggravation of the pre-existing condition had not ceased; finding that the injury sustained by the applicant materially contributed to the need for shoulder surgery; respondent ordered to pay for the costs of and incidental to the shoulder surgery sought by the applicant pursuant to section 60.
determinations made:	1. The left shoulder surgery claimed by the applicant is reasonably necessary as a result of injury on 3 April 2020 and/or injury deemed to have been suffered pursuant to s 4(b) of the Workers Compensation Act 1987. 2. The respondent is to pay the costs of and incidental to the surgery to the applicant’s left shoulder proposed by Dr Petrelis.

STATEMENT OF REASONS

BACKGROUND

David Conlan (the applicant/Mr Conlan) seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the cost of surgery to his back as a result of injury he suffered in the course of his employment as a concreter with Gunnedah Shire Council (the respondent/the Council) on 3 April 2020, and also as a result of the ‘nature and conditions’ of his employment with the Council.
On 3 April Mr Conlan and a co-worker returned to the Council’s depot, having used a variety of formwork out on a job in which they were engaged on that day. As he was unloading the truck, lifting the formwork above shoulder height, the applicant experienced sudden and severe pain in his left shoulder. The incident was reported to the respondent, and Mr Conlan consulted his general practitioner. He was referred to Dr Rob Sharp, orthopaedic surgeon of Tamworth who commenced a regime of conservative treatment for the shoulder extending over approximately 12 months. When this treatment failed to give the applicant relief,
Dr Sharp referred the applicant to Dr Minas Petrelis, orthopaedic surgeon, of Newcastle for a second opinion. Dr Petrelis recommended a…

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: [2023] NSWPIC 226
Decision Date: 16 May 2023

CaseChat Overview and Summary

In the case of Conlan v Gunnedah Shire Council, the applicant, Mr Conlan, sought compensation for the cost of left shoulder replacement surgery. The surgery was necessitated by a frank incident that occurred during his employment with the respondent, the Gunnedah Shire Council, which the respondent conceded as work-related. Additionally, Mr Conlan claimed that the nature and conditions of the heavy work he was engaged in had contributed to the need for the surgery, an assertion the respondent contested.

The legal issues before the court were twofold: whether the aggravation of Mr Conlan’s pre-existing degenerative shoulder condition was due to the frank incident or the nature and conditions of his employment, and whether this aggravation had ceased by the time of the independent medical examination conducted by the respondent’s insurer. The court was required to determine the extent to which the work-related factors contributed to Mr Conlan’s need for shoulder surgery.

The court examined the evidence provided by Mr Conlan, including the medical histories recorded by the practitioners who treated him and the medico-legal assessments conducted. It found that there was sufficient material to support the claim that the nature and conditions of the work aggravated his pre-existing degenerative shoulder condition. The court held that the aggravation of the pre-existing condition had not ceased by the time of the independent medical examination and that the injury sustained materially contributed to the need for shoulder surgery. Consequently, the respondent was ordered to pay for the costs of and incidental to the shoulder surgery as required by section 60 of the Workers Compensation Act 1987.

Orders