Devenish v Kizlock Pty Ltd - [2021] NSWPIC 413

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Devenish v Kizlock Pty Ltd [2021] NSWPIC 413
APPLICANT:	Michael Devenish
RESPONDENT:	Kizlock Pty Ltd
MEMBER:	Nicholas Read
DATE OF DECISION:	14 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for past medical expenses in the form of lumbar spine surgery; worker suffered a compensable left knee injury and underwent a left total knee reconstruction; worker alleged he fell 19 days after his surgery and suffered injury and/or consequential condition to his lumbar spine which necessitated surgery; Held – not satisfied worker discharged onus of proof that fall caused symptoms in lower back; inconsistent evidence regarding onset of symptoms and absence of contemporaneous reporting; burden of proof and Department of Education and Training v Ireland discussed; award for the respondent on the claim for medical expenses.
DETERMINATIONS MADE:	1. Award for the respondent on the claim for medical expenses, in particular the claimed lumbar fusion surgery and associated expenses.

STATEMENT OF REASONS

BACKGROUND

Michael Devenish was employed by Kizlock Pty Ltd (the respondent) as a milk truck driver. On 19 September 2012 Mr Devenish suffered a compensable injury to his left knee. Mr Devenish’s knee worsened over time and on 7 November 2017 he underwent left total knee replacement surgery.
On 26 November 2017 Mr Devenish fell at home. Mr Devenish alleged his fall was caused by instability in his left knee post-surgery. Mr Devenish claimed that as a result of his fall he suffered an injury to his lumbar spine in the form of an aggravation of underlying chronic spondylolisthesis.
On 7 June 2018 Mr Devenish underwent surgery in the form of an L5/S1 stereotactic lumbar laminectomy and pedicle screw internal fixation and fusion.
Mr Devenish made a claim for the respondent to pay the costs of the lumbar spine surgery, and associated expenses.
The respondent denied liability for Mr Devenish’s claim, primarily on the basis that his lumbar condition was not causally related to the left knee injury and the fall.

ISSUE FOR DETERMINATION

The respondent notified the matters in a dispute in a notice issued pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 14 September 2019.
The issues for determination are:
(a) whether Mr Devenish suffered an injury or consequential condition to his lumbar spine as a result of the injury to his left knee on 26 November 2017, and the fall on 26 November 2017, and
(b) whether the lumbar fusion surgery, and associated expenses, were reasonably necessary as a result of the injury or consequential condition.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation/arbitration before me on 5 October 2021.
Mr Mark Boulton of counsel appeared for Mr Devenish instructed by Mr Thomas Clancy, solicitor. Ms Nicole Compton of counsel appeared for the respondent instructed by Mr Neil Bennett, solicitor.
I was satisfied that the parties to the dispute understood the nature of the application and the legal implications of the assertions made in the information supplied. I used…

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 Devenish v Kizlock Pty Ltd

Details

AGLC: Devenish v Kizlock Pty Ltd [2021] NSWPIC 413
Case: [2021] NSWPIC 413
Decision Date: 14 October 2021

CaseChat Overview and Summary

The case of Devenish v Kizlock Pty Ltd involves a worker who claims past medical expenses for lumbar spine surgery following a fall after a knee reconstruction surgery. The matter was heard in the relevant court, which needed to determine whether the worker had met the required burden of proof for his claim. The central issue for the court was whether the worker could establish that the fall led to the symptoms in his lower back that necessitated surgery. This required the court to consider the worker's evidence and medical reports, along with the employer's arguments and counter-evidence.

The court examined the worker's claim and the employer's defence, focusing on the evidence presented regarding the onset of the worker's lumbar spine symptoms. The worker had to show that the fall directly caused the symptoms, but the court found inconsistencies in the evidence regarding when the symptoms started and the lack of contemporaneous reporting of back pain. The court also referenced the principles from Department of Education and Training v Ireland to assess the burden of proof. Ultimately, the court was not satisfied that the worker had discharged the onus of proof, leading to a decision in favour of the employer.

As a result, the court dismissed the worker's claim for past medical expenses, finding that the worker did not prove the fall caused the lumbar spine symptoms. The court's decision hinged on the lack of clear evidence linking the fall to the onset of the back symptoms and the absence of contemporaneous documentation supporting the worker's claims. The final orders were made in favour of the respondent, with the worker's claim for medical expenses being rejected.

Orders