Riganias v Cre8tive Roofing Services Pty Ltd - [2024] NSWPIC 228

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Riganias v Cre8tive Roofing Services Pty Ltd [2024] NSWPIC 228
APPLICANT:	Nicholas Riganias
RESPONDENT:	Cre8tive Roofing Services Pty Ltd
MEMBER:	Kathryn Camp
DATE OF DECISION:	3 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 4(a) and 4(b)(ii); injury simpliciter; aggravation of a disease injury; Rail Services Australia v Dimovski and AV v AW considered; mechanism of injury; identifiable pathological change; Ky v Blue Leaf Food Group Pty Ltd applied; onus of proof; Nguyen v Cosmopolitan Homes applied; increase and worsening of symptoms constitutes an aggravation or exacerbation of a disease injury; Federal Broom Co Pty Ltd v Semlitch applied; section 60(5); claim for medical expenses; whether proposed cervical spine surgery is reasonably necessary as a result of injury; Murphy v Allity Management Services Pty Ltd and Diab v NRMA Ltd considered and applied; Held – proposed surgery is reasonably necessary as a result of the disease injury.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent is to pay the applicant’s reasonably necessary costs pursuant to s 60(5) of the Workers Compensation Act 1987 for the proposed C4/5, C5/6, C6/7 disc arthroplasty surgery as recommended by Dr Parkinson in his report of 23 August 2023, as a result of injury to the cervical spine on 14 October 2022.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns whether the applicant worker sustained an injury to his cervical spine, under s 4(a) and s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act), and whether proposed cervical spine surgery is reasonably necessary as a result of the injury, under s 60 of the 1987 Act. For the reasons discussed below, the worker’s claim for compensation is successful.

BACKGROUND

In December 2021, Nicholas Riganias, the applicant worker, commenced employment as a roof plumber for the respondent, Cre8tive Roofing Services Pty Ltd.
On 14 October 2022, the applicant was at work assisting to install a roof on a rooftop at Western Sydney University when he fell. The applicant claimed that as a result of the fall, amongst other things, he injured his right hand, right shoulder, right elbow, cervical spine, low back, right hip and left knee.
There is no dispute that on this day the applicant suffered a traumatic injury when he fell on the rooftop and sustained a severe laceration to his right hand for which he underwent surgery. The applicant also later underwent surgery on his right shoulder to repair a rotator cuff labral tear.
The respondent’s insurer issued several notices and reviews pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998. Of relevance to the present dispute, the respondent denied liability for injury to the applicant’s cervical spine and claim for compensation for proposed cervical spine surgery in the nature of C4/5, C5/6 and C6/7 disc arthroplasty.
On 16 February 2024, the applicant lodged an Application to Resolve a Dispute in respect of a claim for medical expenses for the costs of proposed…

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: [2024] NSWPIC 228
Decision Date: 3 May 2024

CaseChat Overview and Summary

The case of Riganias v Cre8tive Roofing Services Pty Ltd involved the applicant, Mr. Riganias, who sought workers' compensation benefits from the respondent, Cre8tive Roofing Services Pty Ltd, for an injury sustained during employment. The dispute was heard in the Workers Compensation Commission of Victoria. The central issue in this case was whether the injury sustained by Mr. Riganias constituted an aggravation of an existing disease injury under the Workers Compensation Act 1987, and whether the proposed cervical spine surgery was reasonably necessary as a result of the injury.

The court examined whether the injury Mr. Riganias suffered could be classified as an aggravation of a disease injury. It was determined that an increase and worsening of symptoms could constitute an aggravation or exacerbation of a disease injury, applying the principle from Federal Broom Co Pty Ltd v Semlitch. The court also considered the onus of proof and applied the precedent from Nguyen v Cosmopolitan Homes, which held that the applicant must prove the causal link between the injury and the aggravation of the disease. The court found that the proposed surgery was reasonably necessary as a result of the disease injury, applying principles from Murphy v Allity Management Services Pty Ltd and Diab v NRMA Ltd.

In conclusion, the court ruled in favour of Mr. Riganias. It was determined that the injury sustained by Mr. Riganias constituted an aggravation of a disease injury, and that the proposed cervical spine surgery was reasonably necessary as a result of the injury. The court ordered Cre8tive Roofing Services Pty Ltd to provide compensation for the medical expenses associated with the surgery.

Orders