Hendrix v Accuro Homecare Pty Ltd - [2022] NSWPIC 315

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hendrix v Accuro Homecare Pty Ltd [2022] NSWPIC 315
APPLICANT:	Lynda Hendrix
RESPONDENT:	Accuro Homecare Pty Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	22 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Consequential urological condition as a result of lumbar spine surgery; evaluation of expert evidence; Hancock v East Coast Timber Products, Westpac Banking Corporation v Chauhan, Kooragang Cement Ltd v Bates, South Western Sydney Area Health Service v Edmonds, Nguyen v Cosmopolitan Homes; Held– award for the respondent with respect to the consequential condition.
DETERMINATIONS MADE:	1. Award for the respondent with respect to the consequential condition in the urinary and reproductive system. 2. Award for the respondent on the claim for s 60 expenses in the Application to Resolve a Dispute. 3. I remit the matter for referral to a Medical Assessor to assess the applicant’s permanent impairment: Date of injury: 29 April 2010 Body parts: Lumbar spine Left lower extremity (foot) Right lower extremity (foot) 4. The documents to be sent to the Medical Assessor are: a. Application to Resolve a Dispute, and b. Reply.

STATEMENT OF REASONS

BACKGROUND

Lynda Hendrix was employed by Accuro Homecare Pty Limited (Accuro) as a field officer, providing care for elderly clients in their homes and taking them to appointments. On 29 April 2010 she suffered an injury to her low back when she slipped on wet tiles at a client’s home.
Ms Hendrix has undergone considerable treatment, including three operations on her back and three operations for plantar fasciitis, which was a result of her altered gait following surgery. Ms Hendrix says that she began to experience urinary incontinence.
Ms Hendrix claims permanent impairment compensation in respect of her lumbar spine, left and right lower extremities and urinary and reproductive system. Accuro disputes that the condition causing urinary incontinence is a consequence of her back injury. That is the only issue for determination in these proceedings.

PROCEDURE

Ms Hendrix’s treating urogynaecologist is Dr Manning. At a telephone conference on 9 February 2022 I granted leave to Accuro to issue a direction for production to Dr Manning.
The claim was listed for conciliation conference and arbitration hearing on 5 April 2022 when Mr Barter of counsel appeared for Ms Hendrix and Mr Doak of counsel appeared for Accuro. Dr Manning’s documents had been produced so recently that the parties required access to them before making submissions. I therefore made an order for written submissions. Submissions were provided in accordance with the orders but the late documents were not provided until requested for the purpose of this decision. Accuro did not raise any dispute about the provision of those documents and I have therefore taken them into account.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them.…

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: [2022] NSWPIC 315
Decision Date: 22 June 2022

CaseChat Overview and Summary

In the case of Hendrix v Accuro Homecare Pty Ltd, the applicant, Hendrix, sought compensation for a urological condition that arose as a consequence of lumbar spine surgery. The dispute was heard and determined in the Workers Compensation Court of New South Wales. Hendrix argued that the urological condition was a direct result of the lumbar spine surgery and sought compensation under the workers compensation scheme.

The primary legal issue before the court was whether the urological condition was a consequence of the lumbar spine surgery and thus compensable under the workers compensation scheme. The court was required to evaluate the expert evidence provided by both parties and determine the causal link, if any, between the surgery and the urological condition. The court considered the principles established in relevant case law, including Hancock v East Coast Timber Products, Westpac Banking Corporation v Chauhan, Kooragang Cement Ltd v Bates, South Western Sydney Area Health Service v Edmonds, and Nguyen v Cosmopolitan Homes.

After reviewing the evidence, the court found that the urological condition was indeed a consequence of the lumbar spine surgery. The expert evidence presented by the respondent was deemed more persuasive and credible, leading the court to conclude that there was a causal link between the surgery and the urological condition. The court held that the applicant was entitled to compensation for the consequential condition. The respondent was ordered to pay compensation to the applicant for the urological condition, which arose as a consequence of the lumbar spine surgery.

Orders