Manera v Diversey Australia Pty Ltd - [2021] NSWPIC 223

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Manera v Diversey Australia Pty Ltd [2021] NSWPIC 223
APPLICANT:	Anthony Manera
RESPONDENT:	Diversey Australia Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	2 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for compensation pursuant to section 60 for disputed left knee injury including proposed total knee replacement; prior injury in 2002 requiring arthroscopy; multiple surgeries to right knee; whether employment with the respondent the main contributing factor to an aggravation of pre-existing osteoarthritis; Federal Broom Co Pty Ltd v Semlitch and AV v AW applied; Held- the applicant sustained an injury pursuant to section 4(b)(ii); the present need for surgery resulted from such injury; award for the applicant in respect of the proposed treatment and incurred expenses.
DETERMINATIONS MADE:	1. The applicant sustained an injury to his left knee in the nature of an aggravation of a disease to which employment with the respondent was the main contributing factor. 2. The left total knee replacement proposed by Dr Yasser Khatib is reasonably necessary as a result of the injury.
ORDERS MADE:	1. The respondent to pay the costs of and incidental to the surgery proposed by Dr Khatib pursuant to s 60 of the Workers Compensation Act 1987. 2. The respondent to pay the applicant’s reasonably necessary incurred expenses pursuant to s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Mr Anthony Manera (the applicant) was employed as a forklift driver by Diversey Australia Pty Ltd (the respondent). The applicant claims that as a result of the nature and conditions of his employment with the respondent he sustained an injury to his left knee. The applicant further claims that as a result of that injury it is reasonably necessary that he undergo a left total knee replacement as proposed by Dr Yasser Khatib.
The respondent’s insurer disputed liability for the alleged injury in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 18 August 2020. That decision was maintained following internal review on 16 December 2020.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 25 March 2021. The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) in respect of incurred treatment expenses and the proposed total knee replacement surgery.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 25 May 2021. The applicant was represented by Mr John De Greenlaw, of counsel, instructed by Ms Natalie Pawlikowski. The respondent was represented by Mr Graham Barter instructed by Mr Malcolm Griffin. Representatives from the insurer were also present.
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…

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 223
Decision Date: 2 July 2021

CaseChat Overview and Summary

The case of Manera v Diversey Australia Pty Ltd involved a claim for workers' compensation for a left knee injury, which included a proposed total knee replacement. The applicant alleged that his employment with the respondent had significantly contributed to the aggravation of pre-existing osteoarthritis, which had previously been managed with arthroscopy and multiple surgeries on his right knee. The matter was heard and determined by the relevant court.

The primary legal issues the court had to address were whether the applicant's employment was the main contributing factor to the aggravation of his pre-existing condition and whether the proposed surgery was a necessary consequence of the employment injury. The court needed to apply the principles set out in Federal Broom Co Pty Ltd v Semlitch and AV v AW to determine the liability of the respondent under section 4(b)(ii) of the relevant act.

In reaching its decision, the court considered the applicant's medical history and the nature of the injury in question. It concluded that the applicant had indeed sustained an injury within the meaning of section 4(b)(ii) and that the employment was a significant contributing factor to the need for the proposed surgery. The court accepted that the current need for surgery was a direct result of the employment-related injury. Consequently, the applicant was awarded compensation for the proposed treatment and related expenses.

Orders