Lennon v Northern Beaches Council - [2021] NSWPIC 264

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lennon v Northern Beaches Council [2021] NSWPIC 264
APPLICANT:	Peter Lennon
RESPONDENT:	Northern Beaches Council
MEMBER:	John Wynyard
DATE OF DECISION:	28 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for left hip surgery, section 60 expenses and weekly benefits; applicant employed for 23 years with Council doing arduous work; onset of hip symptoms agreed to have been caused by osteoarthritis following adolescent injury; applicant unaware until onset of symptoms; section 289A(4) application allowed to raise injury and related issues; application to admit 212 pages of factual investigation dated the day before the hearing; application for adjournment by respondent to serve report of its medico legal expert; application by respondent after matter reserved to reopen and rely on said medico-legal expert: Held- section 289A application allowed as parties clearly prepared for issues thereby raised (ex tempore during hearing); application to admit factual investigation refused as served day before hearing with no notice to Commission or applicant (ex tempore during hearing); application for adjournment refused (ex tempore); application to reopen refused on consideration of relevant criteria; no challenge to reasonable necessity for surgery; aggravation of underlying condition found pursuant to section 4(b)(ii); award applicant for each claim.
DETERMINATIONS MADE:	1. The application by the respondent to reopen proceedings is dismissed. 2. The respondent will pay for the costs of and associated with the proposed total left hip replacement surgery as recommended by Dr Chia. 3. The respondent will pay the applicant’s s 60 expenses on production of accounts, receipts and/or HIC charge. 4. The respondent will pay the following weekly benefits: (a) from 22 December 2020 to 29 December 2020 at the sum of $757.12, (b) from 30 December 2020 to date and continuing at the sum of $565.57.

STATEMENT OF REASONS

BACKGROUND

Peter Lennon, the applicant, brings an action for weekly payments of compensation and for a declaration that a proposed left total hip replacement is reasonably necessary. The action is brought against the Northern Beaches Council, the respondent.
A dispute notice was issued on 22 December 2020 and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a)    Did the applicant injure his left hip in the course of his employment?
(b)    If so, what was the nature of that injury?
(c)    Has the applicant satisfied his onus?
(d)    If so, the quantum of weekly payments.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for telephone conciliation and arbitration on 11 May 2021. Ms Sabina Bathgate from Messrs Carroll & O’Dea Lawyers instructed Mr Ty Hickey of counsel for the applicant. Mr Alex Mileski from Messrs HWL Ebsworth Lawyers instructed Mr Josh Beran for the respondent. 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 have used my best endeavours in attempting to bring the parties to the dispute to…

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 264
Decision Date: 28 July 2021

CaseChat Overview and Summary

The applicant, Lennon, brought a claim against the Northern Beaches Council for workers compensation, seeking reimbursement for left hip surgery, section 60 expenses, and weekly benefits. Lennon had been employed by the Council for 23 years, performing physically demanding work. The onset of hip symptoms was agreed to have been caused by osteoarthritis, which followed an injury sustained during adolescence, of which Lennon was unaware until the symptoms manifested. The Council contested the claim, and the matter came before the Commission.

The legal issues before the Commission were whether the section 289A(4) application should be allowed to raise the injury and related issues, whether the 212 pages of factual investigation should be admitted as evidence, whether the application for adjournment should be granted to allow the respondent to serve a report from its medico-legal expert, and whether the application to reopen the matter should be allowed to rely on the expert's report. The Commission needed to determine if the application to admit the factual investigation was appropriate, considering it was served the day before the hearing without notice to the Commission or the applicant. Additionally, the Commission had to decide whether the application for adjournment should be granted and if the application to reopen the matter should be allowed.

The Commission allowed the section 289A application, as the parties were clearly prepared for the issues thereby raised. The application to admit the factual investigation was refused because it was served the day before the hearing without notice to the Commission or the applicant. The application for adjournment was also refused. Finally, the application to reopen the matter was refused on consideration of the relevant criteria. The Commission found no challenge to the reasonable necessity for the surgery, and an aggravation of the underlying condition pursuant to section 4(b)(ii). As a result, the Commission awarded the applicant for each claim.

The Commission's final orders were to award the applicant for the left hip surgery, section 60 expenses, and weekly benefits. The Commission found in favour of the applicant, Lennon, on all claims made against the Northern Beaches Council.

Orders