McBain v Active Contracting Pty Ltd - [2021] NSWPIC 462

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McBain v Active Contracting Pty Ltd [2021] NSWPIC 462
APPLICANT:	Wayne McBain
RESPONDENT:	Active Contracting Pty Ltd
MEMBER:	Jill Toohey
DATE OF DECISION:	16 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of bilateral total knee replacements; accepted injury to left knee; whether applicant suffered a frank injury to his right knee at the same time; alternatively whether worker developed consequential condition in his right knee as a result of accepted injury; respondent accepted proposed left total knee replacement is reasonably necessary as a result of the accepted injury; whether proposed right total knee replacement is reasonably necessary as a result of the accepted injury; whether the chain of causation was broken by a subsequent injury to the right knee; Held - claim that applicant suffered a frank injury to his right knee at the same time not made out; finding that applicant developed an altered gait as a result of the accepted injury; finding that the need for the right total knee replacement was materially contributed to by the accepted injury; right total knee replacement is reasonably necessary as a result.
DETERMINATIONS MADE:	1. The applicant sustained injury to his left knee arising out of or in the course of his employment with the respondent on 23 July 2015. 2. The applicant developed a consequential condition in his right knee as a result of the injury to his left knee. 3. Award for the respondent in the claim for frank injury to the right knee on 23 July 2015. 4. The bilateral total knee replacement surgery proposed by Dr Richard Verhuel is reasonably necessary treatment as a result of the applicant’s injury. 5. The respondent to pay the applicant’s reasonably necessary costs of, and incidental to, the bilateral total knee replacements at the gazetted rate pursuant to section 60 of the Workers Compensation Act1987.

STATEMENT OF REASONS

BACKGROUND

Mr Wayne McBain (the applicant) was employed by Active Contracting Pty Ltd (the respondent) as an arborist on 23 July 2015 when a branch struck his left knee, knocking him to the ground. An MRI revealed that his left knee was fractured.
The respondent accepted liability for injury to Mr McBain’s left knee.
Mr McBain claims he sustained a twisting injury to his right knee on 23 July 2015. Alternatively, he claims he developed a consequential condition in his right knee because of his altered gait following the injury to his left knee. He claims compensation pursuant to section 60 of the Workers Compensation Act1987 (the 1987 Act) for the cost of bilateral total knee replacements proposed by Dr Richard Verhuel.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (the Commission) on behalf of Mr McBain on 27 August 2021.
When these proceedings commenced, the respondent disputed liability to pay for either total knee replacement proposed by Dr Verhuel. At a telephone conference on 24 September 2021, the respondent advised…

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.

Continue reading McBain v Active Contracting Pty Ltd

Details

AGLC: McBain v Active Contracting Pty Ltd [2021] NSWPIC 462
Case: [2021] NSWPIC 462
Decision Date: 16 November 2021

CaseChat Overview and Summary

In the matter of McBain versus Active Contracting Pty Ltd, the dispute centred on the worker's claim for the cost of bilateral total knee replacements. The applicant, who had an accepted injury to his left knee, sought compensation for total knee replacements in both knees. The respondent, the employer, accepted that the left total knee replacement was reasonably necessary due to the injury, but disputed the necessity of the right knee replacement. The legal issues before the court were whether the applicant had suffered a frank injury to his right knee at the same time as the accepted injury to the left knee, or alternatively, whether the worker developed a consequential condition in his right knee as a result of the accepted injury.

The court examined the evidence and determined that the claim of a frank injury to the right knee was not substantiated. However, it found that the applicant had developed an altered gait as a result of the accepted injury, which materially contributed to the need for the right total knee replacement. The court held that the chain of causation was not broken by a subsequent injury to the right knee, and thus, the right total knee replacement was reasonably necessary as a result of the accepted injury. Consequently, the claim for the cost of the right knee replacement was upheld.

The court's decision was grounded in the understanding that the accepted injury to the left knee led to an altered gait, which in turn caused significant degeneration of the right knee. This was supported by medical evidence demonstrating the causal link between the injury, the altered gait, and the need for the right knee replacement. The respondent's argument that the chain of causation was broken by the subsequent injury to the right knee was dismissed by the court, which found that the original injury remained a contributing factor to the need for the replacement. The court ordered the respondent to compensate the applicant for the cost of the bilateral total knee replacements.

Orders