Jones v Kaleidoscope Constructions Australia Pty Ltd - [2024] NSWPIC 29

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jones v Kaleidoscope Constructions Australia Pty Ltd [2024] NSWPIC 29
APPLICANT:	Mikee (Richard) Jones
RESPONDENT:	Kaleidoscope Constructions Australia Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	24 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for a finding that the applicant worker suffered injuries to and/or conditions in his bilateral hips and lumbar spine as a result of the ‘nature and conditions’ of his employment with a deemed date of injury in October 2016, being the date on which the applicant first suffered incapacity as a result of injury in accordance with section 16; the applicant asserted that a frank injury in January 2015, undisputed by the respondent and resulting in the same injuries and conditions, should be regarded as part of the nature and conditions claim; the applicant also claimed the cost of past and future weight loss surgery claimed to result from a significant weight gain as a result of the conceded injuries and conditions; discussion of the concept of ‘nature and conditions’ claims as referred to in Topliss v Coles Group Ltd t/as Coles Logistics, Mirkovic v Davids Holdings Pty Ltd, and Raulston v Toll Pty Ltd; examination of the evidence of the treating medical practitioners and evidence of the independent medical examiners engaged by the parties in respect of causation of injuries/conditions; Held – determination that the Commission declines to find that the applicant suffered injury to and/or condition in his left and right hips and lumbar spine as a result of injury deemed to have occurred on or about 25 October 2016; determination that the past weight loss surgery was reasonably necessary as a result of the January 2015 injury, and the respondent ordered to pay for the costs of and incidental to that surgery; finding that the further weight loss surgery, in the form of circumferential lipectomy, is reasonably necessary as a result of the January 2015 injury.
DETERMINATIONS MADE:	The Commission determines: 1. The Commission declines to find that the applicant suffered injury to and/or condition in his left and right hips and lumbar spine as a result of injury deemed to have occurred on or about 25 October 2016 2. The laparoscopic sleeve gastrectomy surgery performed by Dr Taylor on 5 October 2022 was reasonably necessary as a result of injury on 15 January 2015. 3. The respondent is to pay for the costs of and incidental to that surgery pursuant to s 60 of the Workers Compensation Act 1987. 4. The circumferential lipectomy surgery proposed by Dr Hunt is reasonably necessary as a result of injury on 15 January 2015.

STATEMENT OF REASONS

BACKGROUND

Mikee (formerly Richard) Jones (the applicant/Mr Jones) was employed as a builder by Kaleidoscope Constructions Australia Pty Ltd (the respondent), a company of which he was a director, from at least about 2013.
In the Application to Resolve a Dispute (ARD) commencing the current proceedings the applicant claims weekly benefits from 27 February…

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: [2024] NSWPIC 29
Decision Date: 24 January 2024

CaseChat Overview and Summary

In the case of Jones v Kaleidoscope Constructions Australia Pty Ltd, the applicant, Jones, sought a determination that he suffered injuries to his bilateral hips and lumbar spine as a result of the nature and conditions of his employment with Kaleidoscope Constructions Australia Pty Ltd. The applicant claimed that a frank injury in January 2015, which was undisputed by the respondent, should be regarded as part of the nature and conditions claim, and that he should receive compensation for past and future weight loss surgery resulting from the significant weight gain due to his injuries. The matter was heard by the Commission under the Workers Compensation Act 1987.

The key legal issues for the court to decide were whether the applicant's injuries and conditions were caused by the nature and conditions of his employment, and whether the weight loss surgery was reasonably necessary as a result of the injuries. The court examined the evidence of the treating medical practitioners and the independent medical examiners engaged by the parties to determine the causation of the injuries and conditions.

The Commission declined to find that the applicant suffered injury to and/or condition in his left and right hips and lumbar spine as a result of injury deemed to have occurred on or about 25 October 2016. However, the Commission determined that the past weight loss surgery was reasonably necessary as a result of the January 2015 injury, and ordered the respondent to pay for the costs of and incidental to that surgery. The Commission also found that the further weight loss surgery, in the form of circumferential lipectomy, was reasonably necessary as a result of the January 2015 injury.

Orders