Delaney v CSR Building Products Ltd - [2023] NSWPIC 378

CERTIFICATE OF DETERMINATION OF MEMBER

Citation:

Delaney v CSR Building Products Ltd [2023] NSWPIC 378

APPLICANT:

Steven Charles Delaney

Respondent:

CSR Building Products Limited

Member:

Karen Garner

DATE OF DECISION:

31 July 2023

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation pursuant to section 33 and medical and related expenses of past treatment including L1/2 microdiscectomy surgery pursuant to section 60; applicant sustained accepted work injury to the L5/S1 level of spine on 8 November 2021; whether the applicant also sustained injury to the L1/2 level of spine on 8 November 2021 pursuant to section 4; Held – applicant sustained injury on 8 November 2021 to the L1/2 disc in the nature of an aggravation, acceleration, exacerbation and deterioration of a disease process in the course of his employment and to which his employment was the main contributing factor pursuant to section 4(b)(ii); the past treatment referred to in the applicant’s schedule of expenses including the right L1-2 microdiscectomy performed on 14 June 2022 is reasonably necessary as a result of injury on 8 November 2021; the applicant had as a result of injury on 8 November 2021 no current work capacity and, later, current work capacity; and accordingly, the respondent is ordered to pay the costs of past treatment set out in the applicant’s schedule of expenses in accordance with section 60; the respondent is ordered to pay the applicant weekly compensation, pursuant to section 37(1); in the amount of $1,470.96 per week from 12 May 2022 to 17 July 2022; in the amount of $128.96 per week from 18 July 2022 to 1 August 2022, and in the amount of $404.77 per week from 2 August 2022 to 19 September 2022.

determinations made:

The Commission determines:

1. The applicant sustained injury on 8 November 2021 to the L1/2 disc which progressed to a degenerative disc prolapse of that level in the nature of an aggravation, acceleration, exacerbation and deterioration of a disease process in the course of his employment and to which his employment was the main contributing factor pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act).

2. The past treatment referred to in the applicant’s schedule of expenses including the right
L1-2 microdiscectomy performed on 14 June 2022 is reasonably necessary as a result of injury on 8 November 2021 within the meaning of s 60 of the 1987 Act.

3. The applicant had, as a result of injury on 8 November 2021:

(a) no current work capacity from 12 May 2022 to 17 July 2022;

(b) current work capacity and returned to work for less than 15 hours per week from 18 July 2022 to 1 August 2022;

(c) current work capacity and returned to work for not less than 15 hours per week from 2 August 2022 to 8 September 2022, and

(d) current work capacity and returned to work for not less than 15 hours per week from 9 September 2022 to 19 September…

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 378
Decision Date: 31 July 2023

CaseChat Overview and Summary

In the matter of Delaney v CSR Building Products Ltd, the applicant, Delaney, sought compensation for injuries sustained in the course of his employment. Delaney had an accepted work injury to the L5/S1 level of his spine on 8 November 2021 and claimed additional injuries to the L1/2 level of his spine on the same day. The dispute centred on whether Delaney had sustained an injury to the L1/2 level of his spine on 8 November 2021, and if so, whether this injury was related to his employment. The case was heard in the Workers Compensation Court of Victoria.

The primary legal issue before the court was whether Delaney's injury to the L1/2 level of his spine on 8 November 2021 was a distinct injury that occurred in the course of his employment, or merely an exacerbation of a pre-existing condition. The court had to determine if Delaney's employment was the main contributing factor to this injury, as required by section 4 of the Workers Compensation Act 1987. Additionally, the court had to decide whether the medical and related expenses incurred for past treatment, including the L1/2 microdiscectomy surgery performed on 14 June 2022, were reasonably necessary as a result of the injury on 8 November 2021.

The court found that Delaney had sustained an injury to the L1/2 disc on 8 November 2021, in the nature of an aggravation, acceleration, exacerbation, and deterioration of a disease process, and that his employment was the main contributing factor. The court held that the past treatment expenses, including the right L1-2 microdiscectomy, were reasonably necessary as a result of the injury on 8 November 2021. The court further found that Delaney had no current work capacity due to the injury on 8 November 2021, but later had current work capacity. Consequently, the court ordered the respondent to pay the costs of past treatment set out in Delaney's schedule of expenses and weekly compensation in specified amounts from 12 May 2022 to 19 September 2022.

Orders