DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:
Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8
APPELLANT:
Kishor Kumar
RESPONDENT:
Royal Comfort Bedding Pty Ltd
INSURER:
Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:
A1-6849/11
ARBITRATOR:
Mr G Capel
DATE OF ARBITRATOR’S DECISION:
24 November 2011
DATE OF APPEAL DECISION:
23 February 2012
SUBJECT MATTER OF DECISION:
Consequential condition; causation; whether shoulder condition resulted from mobilising while recuperating from back surgery for accepted back injury; principles to apply; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; assessment of medical evidence; claim for cost of proposed shoulder surgery
PRESIDENTIAL MEMBER:
Deputy President Bill Roche
HEARING:
On the papers
REPRESENTATION:
Appellant:
Frisina Lawyers
Respondent:
Ellison Tillyard Callinan
ORDERS MADE ON APPEAL:
1. The Arbitrator’s determination of 24 November 2011 is revoked and the following orders made in its place:
“1. That the symptoms in the applicant’s right shoulder have resulted from the injury to his back on 19 March 2009.
2. The applicant’s claim for hospital and medical expenses relating to the surgery proposed by Dr Ireland is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of whether that surgery is reasonably necessary treatment as a result of the back injury on 19 March 2009. The AMS is to be provided with a copy of this decision.
3. Costs are reserved, pending the final outcome of the claim.”
2. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.
INTRODUCTION
This appeal concerns a claim for compensation for a consequential condition said to have resulted from an accepted injury. The accepted injury is a back injury and the consequential condition is alleged to be the condition of the worker’s right shoulder. The claim is for the cost of surgery for the shoulder condition.
BACKGROUND
The appellant worker, Kishor Kumar, injured his back on 19 March 2009 while bending over to place packing under a machine at work for the respondent, Royal Comfort Bedding Pty Ltd. He stopped work and the insurer accepted liability for that injury and paid compensation. On 11 May 2010, Mr Kumar underwent back surgery at the hands of Dr Bentivoglio. The insurer accepted that this surgery was reasonably necessary as a result of the back injury on 19 March 2009.
Mr Kumar gave unchallenged evidence that “[f]ollowing the [back] surgery I was finding that when I was in bed trying to lift myself using my arms I felt a lot of pain in my right shoulder”. He first complained of right shoulder pain to Dr Di Mascio, his general practitioner, on 21 June 2010. Dr Di Mascio took no history on that attendance of the cause of the shoulder pain. He noted abduction to be only 100 degrees with decreased internal and external rotation. An ultrasound of the right shoulder on 28 June 2010 revealed features consistent…
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
AGLC
Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8
Case
[2012] NSWWCCPD 8
Decision Date
CaseChat Overview and Summary
Kumar brought a claim against Royal Comfort Bedding Pty Ltd in the NSW Supreme Court, arguing that his right shoulder condition was a consequential condition of his back injury sustained during employment. The dispute centred on whether Kumar’s shoulder condition arose from his mobilising activities while recuperating from his back surgery. The court was required to determine if the shoulder condition was a direct consequence of the original back injury and, if so, whether the proposed shoulder surgery was reasonably necessary treatment.
The court applied the principles established in Kooragang Cement Pty Ltd v Bates to assess the causal link between Kumar’s shoulder condition and the back injury. It scrutinised the medical evidence provided, considering whether the shoulder condition was a natural and foreseeable result of the activities undertaken while recovering from the back injury. The court also examined whether the proposed shoulder surgery was a necessary treatment resulting from the original injury. The court found that Kumar’s shoulder condition was indeed a consequential condition of the back injury and remitted the claim for the cost of the proposed surgery to an Approved Medical Specialist for further assessment.
The court revoked the Arbitrator’s determination and substituted it with specific orders. Firstly, it ruled that Kumar’s right shoulder symptoms were a result of the back injury. Secondly, the claim for hospital and medical expenses related to the proposed shoulder surgery was referred to an Approved Medical Specialist to determine if the surgery was reasonably necessary treatment for the back injury. Finally, the court reserved the matter of costs pending the outcome of the claim, and ordered the employer to pay Kumar’s costs of the appeal.
Orders
Orders of the court
1. The Arbitrator’s determination of 24 November 2011 is revoked and the following orders made in its place:
“1. That the symptoms in the applicant’s right shoulder have resulted from the injury to his back on 19 March 2009.
2. The applicant’s claim for hospital and medical expenses relating to the surgery proposed by Dr Ireland is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of whether that surgery is reasonably necessary treatment as a result of the back injury on 19 March 2009. The AMS is to be provided with a copy of this decision.
3. Costs are reserved, pending the final outcome of the claim.”
2. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.