Devlin v Molco Holdings Pty Ltd - [2022] NSWPIC 329

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Devlin v Molco Holdings Pty Ltd [2022] NSWPIC 329
APPLICANT:	Terence Devlin
RESPONDENT:	Molco Holdings Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	28 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum for back condition consequential to accepted right knee injury in 1996; Moon v Conmah Pty Limited and Kooragang Cement Pty Limited v Bates considered; Held – applicant’s back condition resulted from right knee injury in 1996; matter referred to Medical Assessor for assessment of permanent impairment.
DETERMINATIONS MADE:	1. The applicant’s back condition results from the injury to his right knee on 29 May 1996. 2. Matter remitted to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment, in accordance with the Table of Disabilities, as a result of injury to the applicant’s right knee on 29 May 1996, and consequential back condition resulting from the injury to his right knee on 29 May 1996. Brief to the Medical Assessor to include the Application and attached documents and Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

This is an application by Terence Devlin (the applicant) for lump sum compensation arising out of injury on 29 May 1996 in the course of his employment with Molco Holdings Pty Ltd (the respondent). Injury was described as;
“the Applicant slipped and fell landing on a concrete floor resulting in injury to the right knee. He has subsequently developed an infection which has embedded in the right knee giving rise to further knee replacement surgery and has seeded to the L4/5 disc in the lower back causing injury to the lower back.”
In a notice dated 23 November 2018 under section 74 (as it applied at that time) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the workers compensation insurer of the respondent (the GIO), notify the applicant of a dispute in respect of his claim for lump sum compensation. The GIO advised that it did not accept that the applicant sustained injury to his back or right hip for the purposes of sections 4 and 9 of the Workers Compensation Act 1987 (the 1987 Act). The GIO notified that it did not accept that the need for the applicant’s right knee surgery as a result of the infection in 2016 is related to any injury sustained on about 29 May 1996, and hence denied any claim for permanent impairment in respect of impairment arising from that surgery or from the infection. That the scarring is related to any injury received on 29 May 1996 or the result of any such injury treatment.
In a notice dated 8 December 2021 under section 78 of the 1998 Act, the GIO noted that the right knee injury of 29 May 1996 had been accepted but that the consequential hip and back injuries were disputed. The GIO disputed that the claimed consequential conditions resulted from the accepted injury “as required by sections 4 and 9A”…

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 Devlin v Molco Holdings Pty Ltd

Details

AGLC: Devlin v Molco Holdings Pty Ltd [2022] NSWPIC 329
Case: [2022] NSWPIC 329
Decision Date: 28 June 2022

CaseChat Overview and Summary

In Devlin v Molco Holdings Pty Ltd, the claimant sought a lump sum payment for a back condition that developed following a right knee injury sustained in 1996. The matter was heard in the New South Wales Workers Compensation Magistrate's Court, where the claimant argued that the back condition was a direct consequence of the knee injury, and thus compensable. The respondent, Molco Holdings Pty Ltd, disputed the causal link between the knee injury and the back condition, arguing that the back condition was unrelated to the original injury.

The legal issues before the court were whether the back condition was a consequence of the right knee injury and whether it was therefore compensable under the Workers Compensation Act. The court considered relevant case law, including Moon v Conmah Pty Limited and Kooragang Cement Pty Limited v Bates, to determine the applicable principles of causation and consequential injury in workers compensation claims. The court needed to assess whether the back condition was a natural and foreseeable consequence of the knee injury, or if it arose independently.

The court found that the claimant's back condition did indeed result from the right knee injury in 1996. It reasoned that the knee injury had led to a biomechanical change in the claimant's posture and movement, which in turn caused the back condition. The court referred the matter to a Medical Assessor to determine the extent of permanent impairment attributable to the back condition. The court's decision was grounded in the established legal principles that a consequential injury arising from a compensable injury is itself compensable.

The final orders of the court were that the back condition was a compensable injury consequential to the right knee injury and that the matter should be referred to a Medical Assessor for assessment of permanent impairment. The court did not award a lump sum payment at that stage but instead directed the parties to proceed with the assessment of the claimant's impairment.

Orders