McKinnon v Port Marina Pty Ltd - [2022] NSWPIC 654

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	McKinnon v Port Marina Pty Ltd [2022] NSWPIC 654
APPLICANT:	Jodie McKinnon
RESPONDENT:	Port Marina Pty Ltd
Member:	25 November 2022
DATE OF DECISION:	Catherine McDonald
CATCHWORDS:	WORKERS COMPENSATION - Fall at work causing rupture of breast implant; dispute as to whether worker suffered an injury being a pathological change; Kennedy Cleaning Services Pty Ltd v Petkoska, Castro v State Transit Authority (NSW), North Coast Area Health Service v Felstead, Military Rehabilitation and Compensation Commission v May discussed; treatment fell within the definitions in section 59 of the Workers Compensation Act 1987 (1987 Act) even though the original implant was not an artificial aid; Held – award for weekly compensation and section 60 expenses of the 1987 Act.
FINDINGS MADE:	1. The applicant suffered an injury on 6 May 2021 which caused the rupture of a left breast implant.
determinations made:	2. Pursuant to s 37 of the Workers Compensation Act 1987, the respondent is to pay the applicant weekly compensation $878.40 from 31 August 2021 to date and continuing. 3. The respondent is to pay the applicant’s s 60 expenses resulting from the injury to her left breast including the expenses of and incidental to the removal and replacement of the ruptured implant in her left breast. 4. Award for the respondent on the claim with respect to a secondary psychological condition.

STATEMENT OF REASONS

BACKGROUND

Jodie McKinnon was employed by Port Marina Pty Ltd (Port Marina) as a cleaner. On 6 May 2021 she slipped and fell while mopping a bathroom floor, landing on her left breast and left side. About 20 years before, Ms McKinnon had undergone breast augmentation surgery. Investigations after the fall showed that the implant in her left breast had ruptured and the implant in her right breast was bulging. Ms McKinnon says that she suffered a secondary psychological condition as a result of the injury.
Ms McKinnon claims weekly compensation from 31 August 2021 and medical expenses, including the cost of surgery to remove and replace the implant in her left breast.
Port Marina denies that Ms McKinnon suffered an injury as defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act) because she did not suffer a pathological change as a result of the incident. It also disputes that Ms McKinnon suffered a compensable secondary psychological condition and that she is incapacitated for work. Port Marina disputes that the proposed medical treatment is reasonably necessary medical treatment pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The claim was listed for conciliation conference and arbitration hearing on 14 September 2022 when Mr Young of counsel appeared for Ms McKinnon and Mr McMahon of counsel appeared for Port Marina.
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 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: [2022] NSWPIC 654
Decision Date: 25 November 2022

CaseChat Overview and Summary

McKinnon commenced proceedings against Port Marina Pty Ltd seeking compensation for injuries sustained in a workplace accident. The accident involved a fall which resulted in the rupture of McKinnon’s breast implant. The central dispute was whether the rupture of the implant constituted a pathological change for which compensation could be claimed under the Workers Compensation Act 1987 (1987 Act). The primary legal issues that the court had to resolve were the interpretation of the term “injury” as defined in the 1987 Act and whether the rupture of the implant was a compensable injury.

The court examined the statutory definition of “injury” in section 5 of the 1987 Act, which includes a pathological change. McKinnon argued that the rupture of her implant constituted a pathological change, while Port Marina contended that the implant was not an artificial aid as defined by the Act. The court considered previous cases such as Kennedy Cleaning Services Pty Ltd v Petkoska, Castro v State Transit Authority (NSW), North Coast Area Health Service v Felstead, and Military Rehabilitation and Compensation Commission v May to assist in its interpretation. It concluded that the treatment required for the ruptured implant fell within the definitions in section 59 of the 1987 Act, even though the original implant was not an artificial aid. The court found that the rupture of the implant did indeed amount to a pathological change and was thus a compensable injury under the Act.

Based on the findings, the court held that McKinnon was entitled to weekly compensation and section 60 expenses as per the 1987 Act. McKinnon’s claim for compensation was therefore successful. The court issued an order awarding McKinnon the appropriate weekly compensation and section 60 expenses.

Orders