Skoko v Charles Sturt University - [2023] NSWPIC 589

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Skoko v Charles Sturt University [2023] NSWPIC 589
APPLICANT:	Hazbo Skoko
RESPONDENT:	Charles Sturt University
MEMBER:	John Isaksen
DATE OF DECISION:	11 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for whole person impairment for the right knee, left knee as a consequential condition, scarring, and lower digestive tract as a consequential condition; respondent concedes injury to right knee and consequential condition to left knee and scarring but disputes consequential condition affecting lower digestive tract; worker claims that psychological stress as a result of work injury has resulted in aggravation of pre-existing gastrointestinal condition; reference to Moon v Conmah P/L on issue of consequential condition; whether a possible causal connection between the injury and the aggravation of a gastrointestinal condition can be established on the balance of probabilities from an evaluation of the evidence; reference to EMI (Australia) Ltd v Bes and Fernandez v Tubemakers of Australia Ltd; Held – the worker did not sustain a consequential condition affecting the lower digestive tract worker as a result of the work injury to the right knee; the possible cause and the aggravation of the gastrointestinal condition was not “sufficiently close” (Fernandez) to conclude that this was the actual cause of the aggravation; referral for assessment by a Medical Assessor of the right and left lower extremities and scarring.
DETERMINATIONS MADE:	The Commission determines: 1. An award for the respondent for the claim made by the applicant that he has suffered a consequential condition affecting his lower digestive tract as a result of the injury to his right knee on 28 August 2017. The Commission orders: 2. The matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 28 August 2017 Body Parts: right lower extremity (knee) left lower extremity (knee) as a consequential condition scarring (TEMSKI) Method of Assessment: whole person impairment 3. The following documents are to be forwarded to the Medical Assessor: (a) Application to Resolve a Dispute with attachments; (b) Reply with attachments, and (c) A copy of this decision.

STATEMENT OF REASONS

BACKGROUND

Hazbo Skoko, the applicant in these proceedings, sustained an injury to his right knee in the course of his employment with the respondent, Charles Sturt University, on 28 August 2017.
The respondent has admitted liability for the injury to the right knee.
Member Beilby made a finding on 4 June 2021 that Mr Skoko suffered a consequential condition in his left knee as a result of the injury on 28 August 2017 and that a left knee replacement was reasonably necessary.
Mr Skoko underwent a right total knee replacement on 20 June 2020, a left total knee replacement in July 2021, and a revision of the right total knee replacement on 14 December 2021.
Mr Skoko now makes a claim for a lump sum payment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 51% whole person impairment which comprises 20% permanent impairment…

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: [2023] NSWPIC 589
Decision Date: 11 October 2023

CaseChat Overview and Summary

The case of Skoko v Charles Sturt University involved a worker who brought a claim for whole person impairment related to injuries sustained during employment. The plaintiff sought compensation for impairments to both knees, as well as scarring and a consequential condition affecting the lower digestive tract. The university conceded that the plaintiff had sustained an injury to the right knee, along with consequential conditions in the left knee and scarring, but disputed the claim regarding the lower digestive tract. The plaintiff argued that psychological stress resulting from the work injury had aggravated a pre-existing gastrointestinal condition.

The court was required to determine whether there was a sufficient causal connection between the work injury and the claimed consequential condition affecting the lower digestive tract, and whether the aggravation of the gastrointestinal condition was a result of the injury. The legal principles of consequential conditions, as established in Moon v Conmah P/L, and the balance of probabilities test, as outlined in EMI (Australia) Ltd v Bes and Fernandez v Tubemakers of Australia Ltd, were central to the decision. The court needed to establish if the evidence demonstrated that the aggravation of the gastrointestinal condition was sufficiently close to the work injury to be considered an actual cause.

The court held that the worker did not sustain a consequential condition affecting the lower digestive tract as a result of the work injury to the right knee. The possible causal connection and the aggravation of the gastrointestinal condition were not sufficiently close to conclude that the work injury was the actual cause of the aggravation. Consequently, the court dismissed the claim for the consequential condition of the lower digestive tract. However, the court did order a referral for assessment by a Medical Assessor of the right and left lower extremities and scarring, to determine the extent of impairment in those areas.

Orders