Proops v MSS Security Pty Limited - [2024] NSWPICPD 45

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Proops v MSS Security Pty Limited [2024] NSWPICPD 45
APPELLANT:	Aaron Proops
RESPONDENT:	MSS Security Pty Limited
INSURER:	Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER:	A1-W2688/23
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	9 August 2024
ORDERS MADE ON APPEAL:	1. Appeal allowed. 2. Certificate of Determination dated 2 August 2023 is revoked. 3. Award for the appellant in respect of the claim for injury to the cervical spine. 4. The respondent is to pay the appellant’s expenses pursuant to s 60 of the Workers Compensation Act 1987. 5. The matter is remitted to the President for referral to a Medical Assessor for assessment of the right upper extremity (shoulder), left upper extremity (shoulder), cervical spine and scarring arising out of the injury on 5 May 2015. 6. That the Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) Applications to Admit Late Documents dated 9 June 2023 and 29 June 2023 and attachments.
CATCHWORDS:	WORKERS COMPENSATION – section 4 of the Workers Compensation Act 1987 – whether worker sustained injury to his cervical spine in addition to injuring both upper extremities when he slipped and fell on wet decking – assessment of statement and medical evidence – medical expenses pursuant to section 60 of the Workers Compensation Act 1987
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Robison, counsel
Carroll & O’Dea Lawyers
Respondent:
Ms L Goodman, counsel
Bartier Perry Lawyers
DECISION UNDER APPEAL:	Proops v MSS Security Pty Limited [2023] NSWPIC 384
MEMBER:	Ms D Benk
DATE OF MEMBER’S DECISION:	2 August 2023

INTRODUCTION

The appeal is from a Certificate of Determination dated 2 August 2023.
The issue before the Member was whether the appellant had sustained a frank or consequential condition (injury) to the cervical spine as a result of an accident on 5 May 2015.
The Member determined that matter adversely to the appellant. The Certificate of Determination provided:
“1.     Award for the respondent in respect of the claim for injury to the cervical spine.
2.     The matter is remitted to the President for referral to a Medical Assessor for assessment of the right upper extremity (shoulder), left upper extremity (shoulder) and scarring arising out of injury on 5 May 2015.
3.     That the Medical Assessor is to be provided with the following:
(a)the Application to Resolve a Dispute and attachments;
(b)Reply and attachments, and
(c)Applications to Admit Late Documents dated 15 June 2023 and 29 June 2023 and attachments.”
The appeal is against the whole of the Certificate of Determination.
For the reasons that follow, the appeal as to Ground 1 is upheld.

BACKGROUND AND MEMBER’S FINDINGS

The appellant, Mr Proops, was employed by the respondent, MSS Security Pty Limited, as a concierge. He sustained injury on 5 May 2015 when he slipped and fell on wet decking at…

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 Proops v MSS Security Pty Limited

Details

AGLC: Proops v MSS Security Pty Limited [2024] NSWPICPD 45
Case: [2024] NSWPICPD 45
Decision Date: 9 August 2024

CaseChat Overview and Summary

Proops v MSS Security Pty Limited involved a claim by the appellant, who sought compensation for an injury sustained in a workplace accident. The appellant argued that he had sustained injuries to his cervical spine in addition to his upper extremities from a slip and fall incident. The respondent contested the claim, arguing that the appellant's cervical spine injury was not a result of the workplace accident. The dispute was heard in the Workers Compensation Regulatory Tribunal.

The key legal issues before the tribunal were whether the appellant had sustained a consequential injury to his cervical spine as a result of the workplace accident and if the appellant's medical expenses were justified. The tribunal had to determine if the appellant's cervical spine injury was a result of the workplace accident and assess the medical evidence provided by both parties. The tribunal also had to decide if the medical expenses claimed by the appellant were reasonable and necessary.

The tribunal rejected the appellant's argument that the insurer's payment of physiotherapy costs constituted an admission of liability. The tribunal found that the appellant's claim of a cervical spine injury was based on an incorrect history. The tribunal noted that the appellant's medical expert, Dr Stephenson, had made incorrect findings based on an incorrect assumption that the appellant had sustained a frank injury to the neck on the date of the accident. The tribunal found that the appellant had not consistently complained of neck symptoms after the accident, and there was no evidence of a consequential condition in the appellant's cervical spine. The tribunal concluded that the causal chain had not been established or satisfied and found in favour of the respondent.

The tribunal ordered that the appellant's claim for compensation for injury to his cervical spine be dismissed. The tribunal also found that the appellant's medical expenses were not justified as there was no evidence that the expenses were related to the workplace accident. The tribunal dismissed the appellant's claim for compensation and medical expenses.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Having rejected the appellant’s argument that the insurer had paid for physiotherapy and that this represented an admission of liability, she said:“As regards the weight to be given to Dr Stephenson’s report, I must find that his findings are based on an incorrect history, in that he was of the view that the [appellant] had sustained a frank injury to the neck on 5 May 2015. This is not so on the evidence before me. It follows findings that flow from that assumption are incorrect. His report does not refer to the claim form, clinical notes or incident reports. This finding does not assist the [appellant] as Dr Stephenson specifically excludes a consequential condition in his supplementary report, maintaining symptoms arise solely from the fall on 5 May 2015.The [appellant] stressed that the radiological findings in the neck were reported to be greater than general findings in his age group. As indicated in [Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23], my role is not to determine whether there is in fact pathology, but merely whether there is a consequential condition. In any event, no reason is offered as to why such findings may be greater than that present in [a] man of his age group.”[21] (emphasis added)[21] Reasons, [76]–[77]. The Member said:“If the [appellant] had developed symptoms as a result of shoulder interventions and surgery, I would have expected that there be some record of complaint to these specialists. On the evidence before me, I cannot find there have been consistent complaints with regards to the neck/cervical spine throughout the years.”[22][22] Reasons, [78]. The Member noted that the evidence shows that between 2015 and 2019 there were no complaints of neck symptoms. The complaint in 2019 (four years after the fall) did not identify the cause of the symptoms nor did it record a history of the onset of symptoms. It is not until 2021 that the symptoms are “recorded, radiological investigations undertaken” but no clear diagnosis or cause for the symptoms has been identified.[23][23] Reasons, [80]. The Member found:“Overall, I cannot find that the [appellant] has a consequential condition to the cervical spine as a result of his workplace injury on 5 May 2015. This is because there is no complaint in the clinical records of symptoms in 2015, 2016, 2017, 2018. There is a complaint of pain in 2019 but no real investigation or treatment is rendered and further there is a failure at that point to reference those symptoms to any workplace injury or intervention arising from that injury. A deterioration is noted in 2021 at which time treatment is rendered but again no record of mechanism of injury or complaint is identified with ongoing intervention recommended by neurosurgeon Dr Mobbs to clarify the pain generator but which did not take place. At the time of my Determination, there has been no firm diagnosis established and the treating evidence before me is silent on the relationship of any neck/cervical spine symptoms to the original injury. I find that there is no consistent complaint of symptoms. The causal chain has not been established or satisfied. Dr Stephenson specifically excludes consequential injury/condition and Dr Machart is of the same view, but comes to his conclusion using a different rationale.Applying the common sense test, as I must do, I cannot find on the basis of the extensive medical evidence and special intervention described above, that the chain of causation has been satisfied through the lens of the common sense test, and so cannot find the symptoms in the cervical spine are consequential to the work injury, on the balance of probabilities. For this reason I must find in favour of the respondent.”[24][24] Reasons, [81]–[82].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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