McBain v Active Contracting Pty Ltd - [2024] NSWPIC 145

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McBain v Active Contracting Pty Ltd [2024] NSWPIC 145
APPLICANT:	Wayne McBain
RESPONDENT:	Active Contracting Pty Ltd
MEMBER:	Diana Benk
DATE OF DECISION:	25 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Worker alleges medical condition of the lumbar spine as a result of accepted injury/condition to the bilateral knees; respondent refutes consequential injury to the lumbar spine; Held – finding of causal nexus between back (lumbar spine) condition and bilateral knee injury/condition, following assessment of legal principles found in ‘consequential compendium’; matter remitted to the President for referral to a Medical Assessor to assess whole person impairment of the lumbar spine, bilateral knees and scarring.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant developed a consequential condition to the lumbar spine as a result of his workplace bilateral knee injuries. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment of the lumbar spine, bilateral lower limbs (knees) and scarring arising out of injury on 23 July 2015. 3. That the Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attachments, and (b) Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

This matter has a long history. Briefly, on 23 July 2015, Mr McBain (the applicant) suffered a fracture of the left knee when it was struck by a large and heavy tree branch. Liability was accepted by the insurer of Active Contracting Pty Ltd (the respondent).
Then in 2021 bilateral knee replacement was recommended. The respondent denied liability for the right knee maintaining it was not injured nor was it a consequential injury. That dispute was the subject of proceedings before the Personal Injury Commission (Commission) where following Arbitration, the respondent was found liable to indemnify the applicant for bilateral knee surgery after findings were made that the right knee was a consequential condition arising from altered gait from the left knee injury.[1] The applicant underwent bilateral knee replacements on 30 May 2022, notably almost seven years after the initial injury.
[1] McBain v Active Contracting Pty Ltd [2021] NSWPIC 462 (16 November 2021).
In the current proceedings, the applicant claims lump sum compensation arising out of the impairment from the bilateral knee injuries, scarring, and lumbar spine. The respondent rejected the lump sum claim for the lower extremities (knees) on the basis its qualified evidence determined an impairment level below the statutory threshold. It also disputed the lumbar spine impairment was a consequential condition arising from the knee injuries.
The matter underwent the usual case management pathway. Following conciliation impasse, I was requested to determine whether the applicant sustained a consequential condition/injury to the lumbar spine following which the matter was to be referred to a Medical Assessor for assessment of whole person impairment.
The applicant was represented by Mr Schipp of counsel instructed by Mr Evers. The respondent was represented by Mr Stockley of counsel instructed by Mr Lee. The applicant was also present. Mr Ye…

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: McBain v Active Contracting Pty Ltd [2024] NSWPIC 145
Case: [2024] NSWPIC 145
Decision Date: 25 March 2024

CaseChat Overview and Summary

The case of McBain v Active Contracting Pty Ltd involved a worker who claimed that a medical condition of the lumbar spine was a result of an accepted injury to the bilateral knees. The respondent company disputed the claim, arguing that there was no consequential injury to the lumbar spine. The dispute was heard and determined by the relevant Australian court.

The primary legal issues that the court had to decide included whether there was a causal connection between the worker's lumbar spine condition and the accepted bilateral knee injury, and if so, whether this consequential injury warranted compensation. The court was required to apply the legal principles outlined in the 'consequential compendium' to assess the nexus between the injuries and the causation of the lumbar spine condition.

The court found that there was indeed a causal link between the lumbar spine condition and the bilateral knee injury, after carefully reviewing the legal principles found in the 'consequential compendium'. This finding necessitated a referral to a Medical Assessor to evaluate the whole person impairment related to the lumbar spine, bilateral knees, and scarring. As a result, the matter was remitted to the President for the appropriate referral to be made.

The final orders included a directive for the President to refer the matter to a Medical Assessor for an assessment of the whole person impairment related to the lumbar spine, bilateral knees, and scarring. This would ensure that the worker could receive appropriate compensation for the consequential injury to the lumbar spine, as determined by the court.

Orders