McQuillan v Sean Mitchell Agencies - [2024] NSWPIC 202

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McQuillan v Sean Mitchell Agencies [2024] NSWPIC 202
APPLICANT:	Brett McQuillan
RESPONDENT:	Sean Mitchell Agencies
MEMBER:	Mitchell Strachan
DATE OF DECISION:	22 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for medical expenses; whether fusion surgery reasonably necessary; whether need for surgery results from pleaded injury on 15 July 2015; applicant carries onus of proof; Held – proposed surgery reasonably necessary treatment; need for surgery does not result from injury on 15 July 2015; there is an award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. The surgery proposed by Dr Singh is reasonably necessary treatment within the meaning of s 60 of the Workers Compensation Act 1987. 2. The need for the proposed surgery does not result from injury sustained by the applicant on 15 July 2015. 3. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Brett McQuillan (the applicant) was employed by Sean Mitchell Agencies (the respondent) as a factory manager for a period of 24 years.
He sustained an injury to his lumbar spine in the course of his employment with the respondent in 2005 and as a result of that injury he came to an L4/5 microdiscectomy with the insertion of a Wallis device in 2006.
He returned to work with the respondent.
There was a work related aggravation of his symptoms in the lumbar spine in 2011 on the background of a busy period at work and again in 2013 on the background of a motor vehicle accident.
There is no dispute that the applicant sustained a further injury to his lumbar spine in the course of his employment on 17 July 2015. The precise nature of the accepted injury was not pleaded however it is evident from the applicant’s evidence that he is asserted an aggravation injury of the underlying pathology in the lumbar spine dating back to at least the 2005 injury.
The applicant makes a claim for medical treatment proposed by Dr Singh being a posterior fusion procedure the need for which the applicant asserts results from the injury on
15 July 2015.

ISSUES FOR DETERMINATION

The claim for weekly compensation was discontinued by the applicant.
As such, the parties agreed that the following issue remained in dispute for determination by me:
(a) whether the surgery proposed by Dr Singh, being a posterior fusion procedure, is reasonably necessary as a result of an injury sustained by the applicant on
15 July 2015.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration hearing in person on
2 April 2024. The applicant was represented by Mr Carney of counsel, instructed by
Mr Simpson of PK Simpson Lawyers. The respondent was represented by Mr Paul Barnes of counsel. There was no attendance on behalf of the insurer, EML.
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…

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 McQuillan v Sean Mitchell Agencies

Details

AGLC: McQuillan v Sean Mitchell Agencies [2024] NSWPIC 202
Case: [2024] NSWPIC 202
Decision Date: 22 April 2024

CaseChat Overview and Summary

The case of McQuillan v Sean Mitchell Agencies was heard in the Workers Compensation Claims Division of the Queensland District Court. The applicant, McQuillan, sought compensation for medical expenses related to fusion surgery, arguing that the surgery was reasonably necessary and a result of an injury that occurred on 15 July 2015. Sean Mitchell Agencies, the respondent, contested the applicant's claim on the basis that the proposed surgery was not reasonably necessary and that the need for the surgery did not result from the pleaded injury.

The court was required to determine whether the proposed surgery was reasonably necessary treatment and whether the need for the surgery was a consequence of the injury on 15 July 2015. The court noted that the applicant had the burden of proving both elements on the balance of probabilities. The court examined the evidence presented, including expert medical opinions, to assess the necessity of the surgery and the causation of the need for the surgery.

The court found that the proposed surgery was reasonably necessary treatment for the applicant's condition. However, it also determined that the need for the surgery did not result from the injury on 15 July 2015. As a result, the applicant's claim for compensation was dismissed. The court held that there was an award for the respondent, Sean Mitchell Agencies, as the applicant had not met the required standard of proof.

In summary, the court ruled that while the proposed fusion surgery was reasonably necessary, it did not stem from the injury that occurred on 15 July 2015. Consequently, the applicant's claim for compensation for medical expenses was denied, and an award was made in favour of the respondent.

Orders