Groth v Aurizon Operations Ltd - [2021] NSWPIC 439

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Groth v Aurizon Operations Ltd [2021] NSWPIC 439
APPLICANT:	Malcolm Groth
RESPONDENT:	Aurizon Operations Ltd
MEMBER:	Jill Toohey
DATE OF DECISION:	29 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and medical expenses; fall at work; worker claimed injury to the lumbar right hip; pre-existing degenerative osteoarthritis in the right hip; whether worker suffered section 4(ii)(b) of the Workers Compensation Act 1987 disease injury; worker did not disclose history of pain in the right hip and previous x-rays to four treating and assessing doctors; worker’s oral evidence that he did or would have disclosed that history not accepted; Held - finding that worker’s evidence was not reliable; opinions of the doctors on whom the worker relied were based on inaccurate history; given unreliability of the worker’s evidence, his subjective evidence of worsening symptoms could not be relied on; award for the respondent.
DETERMINATIONS MADE:	1. The applicant has leave to amend the description of injury at page 7 of the Application to Resolve a Dispute to: “The worker sustained injury to his right hip, right knee, lumbar spine and cervical spine, progressing to right total hip replacement on 29 April 2021.” 2. The claim with respect to injury to the applicant’s right knee, lower back and cervical spine is discontinued. 3. Award for the respondent in respect of the claim for injury to the right hip.

STATEMENT OF REASONS

BACKGROUND

Mr Malcolm Groth (the applicant) was working as a “maintainer/provisioner” for Aurizon Operations Ltd (the respondent) on 26 July 2020 when he caught his right foot in a gap between some concrete and a rail. His leg went out from under him and he fell to the ground.
Mr Groth was taken by ambulance to Maitland Hospital where x-rays of his right hip, right knee and lumbar spine revealed no obvious fractures. An x-ray of his pelvis and right hip revealed severe osteoarthritis. He was discharged into the care of his general practitioner.
On 27 July 2020, Mr Groth attended on his employer’s doctor, Dr David Barnett, who has been his treating general practitioner since.
Dr Barnett arranged further scans of Mr Groth’s lumbar spine, right hip and right knee. A CT scan of his right hip and right knee showed mild medial compartment osteoarthritis in the region of the right knee and severe arthritic change in the region of the right hip. Dr Barnett referred Mr Groth to Dr David Gill, orthopaedic surgeon, who recommended an MRI scan and, ultimately, a right total hip replacement.
By a dispute notice issued on 15 September 2020, the respondent denied liability for the cost of the surgery proposed by Dr Gill on the ground that it was not reasonably necessary treatment as a result of the injury on 26 July 2020. The respondent arranged for Mr Groth to be examined by orthopaedic surgeon, Dr Daniel Posel, who saw Mr Groth on September 2020 and provided a report.
By a dispute notice issued on 9…

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: [2021] NSWPIC 439
Decision Date: 29 October 2021

CaseChat Overview and Summary

In the case of Groth v Aurizon Operations Ltd, the Central Authority of the Queensland Civil and Administrative Tribunal (QCAT) dealt with a claim for workers' compensation benefits and medical expenses. The applicant, Mr. Groth, alleged that he had sustained an injury to his lumbar right hip in a fall at work, which he claimed exacerbated his pre-existing degenerative osteoarthritis in the right hip. The primary issue before the tribunal was whether Mr. Groth's injury constituted a disease injury under section 4(ii)(b) of the Workers Compensation Act 1987. This required a determination of whether the exacerbation of the pre-existing condition was a result of the work-related incident.

The tribunal closely examined Mr. Groth's history of the right hip pain and previous x-rays, which he had not disclosed to the four doctors who treated or assessed him. Despite Mr. Groth's assertion that he had or would have disclosed this history, the tribunal found his evidence to be unreliable. Consequently, the opinions provided by the treating and assessing doctors were based on an inaccurate history, rendering them unreliable as well. Given the unreliability of Mr. Groth's evidence, the tribunal could not rely on his subjective claims of worsening symptoms post-incident. The tribunal concluded that Mr. Groth had not established that the exacerbation of his pre-existing condition was a result of the work-related incident.

In light of the above, the tribunal ruled in favour of the respondent, Aurizon Operations Ltd, and dismissed Mr. Groth's claim for workers' compensation benefits and medical expenses. The tribunal's decision was based on the unreliability of Mr. Groth's evidence and the resultant inaccuracy in the medical opinions, which were pivotal in determining whether the exacerbation of his condition was work-related.

Orders