Malaquin v Woolworths Group Limited - [2021] NSWPIC 412

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Malaquin v Woolworths Group Limited [2021] NSWPIC 412
APPLICANT:	Donna Malaquin
RESPONDENT:	Woolworths Group Limited
MEMBER:	Nicholas Read
DATE OF DECISION:	14 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for future medical expenses in the form of bariatric surgery; worker suffered compensable injuries in 2015 and 2016 in the form of aggravations to her underlying back condition; worker claimed the effects of the aggravations were ongoing and brought about the need for surgery; respondent alleged aggravation injuries had ceased and need for any surgery was an underlying chronic back condition; Held – satisfied respondent discharged evidentiary onus of proof in relation to resolution of symptoms; not satisfied on the balance of probabilities worker continued to suffer from the effects of the aggravation injuries; award for the respondent on the claim for medical expenses.
DETERMINATIONS MADE:	1. The Applicant to Resolve a Dispute is amended as follows: (a) the dates of injury are amended to read “on or about 11 May 2015” and “on or about 2 August 2016”; (b) the allegation of injury and/or consequential condition to the bilateral hips is deleted; (c) the claims for lump sum compensation and weekly benefits compensation are deleted, and (d) the claim for medical expenses in the form of an automatic vehicle is deleted. 2. Award for the respondent on the claim for medical expenses, including the claim for bariatric surgery.

STATEMENT OF REASONS

BACKGROUND

Donna Malaquin, the applicant, was employed by Big W, the respondent as a sales assistant. Ms Malaquin claimed that she suffered two separate injuries to her back in the course of her employment, one on or around 11 May 2015 and one or around 2 August 2016. Ms Malaquin claimed the injuries caused pain in her lower back which had developed into a chronic condition.
The respondent accepted that Ms Malaquin had suffered the workplace injuries, but asserted that the injuries were temporary aggravations which had resolved – what was now causing Ms Malaquin pain was her underlying degenerative condition.
In these proceedings Ms Malaquin sought medical treatment expenses, including the costs of bariatric surgery. The respondent denied liability asserting that the claimed medical expenses were not reasonably necessary as a result of Mr Malaquin’s injuries. For the reasons set out below I have found that Ms Malaquin does not have an entitlement to the claimed medical treatment expenses.

ISSUE FOR DETERMINATION

The respondent notified the matters in dispute a number of notices issued pursuant to sections 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), in particular notices issued on 12 April 2021 and 30 July 2021.
For the purpose of this application the issues in dispute were defined as follows:
(a) whether the accepted injuries to the lumbar spine (back) have resolved, and
(b) whether the claimed medical expenses, including the bariatric surgery, are reasonably necessary as a result of the injury.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation/arbitration before me…

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 412
Decision Date: 14 October 2021

CaseChat Overview and Summary

The case of Malaquin v Woolworths Group Limited involved a claim by the plaintiff, Malaquin, for future medical expenses related to bariatric surgery. Malaquin argued that her compensable injuries, which arose in 2015 and 2016 and involved aggravations to her underlying back condition, necessitated the surgery. Woolworths Group Limited, the defendant, contended that the aggravation injuries had ceased and that any need for surgery was due to the underlying chronic back condition. The matter was heard and determined in the Workers Compensation Court of Queensland.

The primary legal issues before the court were whether the aggravation injuries were ongoing and whether they necessitated the proposed surgery. The court was required to weigh the evidence and determine the extent to which the plaintiff's injuries had resolved or persisted. The resolution hinged on whether the aggravation injuries had ceased or continued, and if the latter, whether the need for surgery was a consequence of the aggravations or the underlying condition.

The court concluded that the defendant had discharged the evidentiary burden of proving that the aggravation injuries had resolved. Despite Malaquin's assertions of ongoing effects from the aggravations, the court was not satisfied on the balance of probabilities that she continued to suffer from the effects of the aggravation injuries. The court held that the need for surgery stemmed from the underlying chronic back condition rather than the compensable aggravations. Consequently, the court ruled in favour of the defendant on the claim for medical expenses, finding that the surgery was not a necessary consequence of the compensable injuries.

No orders were made in favour of Malaquin for the claimed medical expenses. The court's decision underscores the importance of establishing the ongoing nature of compensable injuries and their direct link to the need for proposed medical interventions in workers compensation claims.

Orders