Devenish v Kizlock Pty Ltd

[2022] NSWPICPD 22

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Devenish v Kizlock Pty Ltd [2022] NSWPICPD 22

APPELLANT:

Michael Devenish

RESPONDENT:

Kizlock Pty Ltd

INSURER:

AAI Limited t/as GIO

FILE NUMBER:

A1-W3580/21

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

DATE OF APPEAL DECISION:

10 June 2022

ORDERS MADE ON APPEAL:

1.     The Certificate of Determination dated 14 October 2021 is revoked and the following findings and orders are made in its place:

(a)   The applicant suffered an injury in the form of an aggravation of a pre-existing lumbar spondylolisthesis as a result of a fall on or about 26 November 2017.

(b)   The fall occurred as a consequence of the appellant’s accepted injuries to his left knee on 2 July 2010 and on 14 September 2012.

(c) Pursuant to s 60 of the Workers Compensation Act 1987, the respondent is to pay the costs of and incidental to the lumbar laminectomy and L5/S1 level fusion performed by Associate Professor Mark Davies on 7 June 2018.

CATCHWORDS:

WORKERS COMPENSATION – acceptance or rejection of expert evidence not the subject of contrary expert opinion – Wikiv Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 applied – absence of contemporaneous complaints – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 applied – error in the fact-finding process Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied – requirement for expert medical opinion Strinic v Singh [2009] NSWCA 15 applied

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr M Boulton, counsel

RMB Lawyers

Respondent:

Mr G Young, counsel

Hall & Wilcox Lawyers

DECISION UNDER APPEAL
MEMBER:	Mr N Read
DATE OF MEMBER’S DECISION:	14 October 2021

INTRODUCTION AND BACKGROUND

1. Mr Michael Devenish (the appellant) suffered undisputed left knee injuries on 2 July 2010 and 14 September 2012 in the course of his employment with Kizlock Pty Ltd (the respondent). Liability for the injuries was accepted by the respondent. Following increased symptoms in the knee, the appellant underwent surgery in the form of a total left knee replacement on 7 November 2017.

2. The appellant alleged that after the surgery, he experienced left knee instability which caused him to fall on 26 November 2017, resulting in an aggravation of his pre-existing lumbar spine pathology. He underwent a lumbar laminectomy and fusion at the L5/S1 level of the spine at the hands of Associate Professor Mark Davies, neurosurgeon, on 7 June 2018.

3. The appellant claimed compensation for the costs of and incidental to the surgery on the basis that the fall which caused his lumbar pathology to become symptomatic was caused by the left knee condition. The respondent denied the claim on the basis that the lumbar symptoms were not consequential to the left knee injury and the fall.

4. The appellant commenced proceedings and the matter proceeded to arbitration before a non-presidential member of the Personal Injury Commission (the Commission). The Member issued a Certificate of Determination,…