Spennati v Ausgrid - [2021] NSWPIC 356

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Spennati v Ausgrid [2021] NSWPIC 356
APPLICANT:	John Spennati
RESPONDENT:	Ausgrid
MEMBER:	Michael Perry
DATE OF DECISION:	16 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim under section 66 of the Workers Compensation Act 1987 (1987 Act) for right knee injury; applicant stepped onto uneven ground when knee gave way; evidence of degenerative changes; section 9A test; whether employment/incident was a substantial contributing factor to injury; drawing inferences on common knowledge and ordinary human experience; consideration of E-Dry v Ker; Held - employment was a substantial contributing factor to the injury sustained in the course of employment.
DETERMINATIONS MADE:	1. A finding that the applicant sustained an injury to his right knee, pursuant to s 4(a) of the Workers Compensation Act 1987, in the course of his employment on 10 October 2019. 2. A finding that the applicant’s employment with the respondent was a substantial contributing factor to the injury to his right knee in the course of his employment on 10 October 2019. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment of the degree of whole person impairment with respect to the applicant’s right lower extremity (knee). 4. The following documents are admitted by consent and referred to the Medical Assessor: (a) the Application to Resolve a Dispute; (b) the Reply; (c) the Applicant’s Application to Admit Late Documents dated 16 August 2021; (d) the Respondent’s Application to Admit Late Documents dated 30 August 2021, and (e) the report of Associate Professor Paul Miniter dated 1 September 2021 (leave having been given on 2 September 2021 for the respondent to rely upon such report in the event of referral to a Medical Assessor).

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (ARD) John Spennati (the applicant) has claimed lump sum compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act). The applicant alleges he sustained a personal injury (under s 4(a) of the 1987 Act) to his right knee in the course of his employment with Ausgrid (the respondent) on 10 October 2019.

ISSUES FOR DETERMINATION

The parties agree the only issue in dispute is whether the applicant sustained an injury to his right knee within the meaning of sections 4 (a) and 9A of the 1987 Act (the issue).

PROCEDURE BEFORE THE COMMISSION

Conciliation and arbitration was conducted by telephone on 2 September 2021.
Richard Petrie of counsel instructed by Hassan Abdallah, solicitor, appeared for the applicant. Josh Beran of counsel, instructed by Nicholas O’Connor, solicitor appeared for the respondent. I have used my best attempts to bring the parties to settlement and am satisfied they had sufficient opportunity to explore that but were unable to reach an agreed resolution.

EVIDENCE

Neither party wished to adduce oral evidence or cross-examine any witness. The following documents were in evidence and considered in making this determination; the ARD and attached documents; the applicant’s Application to Admit Late Documents and attached…

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 Spennati v Ausgrid

Details

AGLC: Spennati v Ausgrid [2021] NSWPIC 356
Case: [2021] NSWPIC 356
Decision Date: 16 September 2021

CaseChat Overview and Summary

In Spennati v Ausgrid, the applicant sought compensation under the Workers Compensation Act 1987 for a knee injury sustained at work. The incident involved the applicant stepping onto uneven ground, which caused his knee to give way. The applicant argued that his employment and the incident were substantial contributing factors to the injury. The court was tasked with determining whether the employment and the incident met the criteria for compensation under the Act.

The central legal issue was whether the employment and the incident were substantial contributing factors to the injury, as required by section 9A of the Workers Compensation Act 1987. The applicant needed to demonstrate that the incident was a significant cause of the injury, not just a pre-existing condition. The court considered whether the evidence, including expert medical opinion and common knowledge, supported the applicant's claim.

The court found that the evidence, particularly the expert opinion of Dr. Gehr, supported the applicant's claim. The court accepted that the uneven ground and the applicant's carrying of work tools contributed to the injury. The court reasoned that stepping onto the uneven ground imposed sufficient force on the knee to cause the sudden onset of pain and symptoms that persist to this day. The court relied on common knowledge and ordinary human experience to conclude that the employment and the incident were substantial contributing factors to the injury.

The court ordered that the respondent pay compensation to the applicant under section 66 of the Workers Compensation Act 1987, finding that the employment and the incident were substantial contributing factors to the injury. The decision highlighted the importance of considering expert evidence and common knowledge in assessing workers' compensation claims.

Orders

Orders of the court

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Background

Background to the litigation

The respondent refers to Hancock in its submission that there was not a “fair climate” for Dr Gehr’s opinion to be accepted. However, in that case, Beazley JA noted (at [74]) the:“… principle of longstanding … referred to by the High Court in Paric … where the court … said … it is trite law that for an expert medical opinion to be of any value, the facts upon which it is based must be proved by admissible evidence … But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based … (emphasis of Beazley JA) … (82) … although not bound by the rules of evidence … the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings … report will need to confirm, in a sufficiently satisfactory way, with the usual requirements for expert evidence … does not require strict compliance with each and every feature … in Makita …” Having regard to all the evidence, I find that facts upon which Dr Gehr’s report are based are sufficiently as I find them to allow me to utilise his evidence to support a finding of injury under s 4(a) and to assist my evaluation of the s 9A question. Another reason why I do not think the twist ultimately matters is because to some extent the word “twist” is a label or conclusion which may, in some circumstances, mean different things to different people. I also accept that the word “ditch”, while not necessarily precisely corresponding to the term “uneven surface” is, in all the circumstances of this case, sufficiently similar to allow me to accept Dr Gehr’s evidence. I infer that the applicant did not mean, nor would Dr Gehr have understood he meant, to use “ditch” in the sense of a deep trench. Dr Gehr wrote “his right foot went into a ditch and the path”. I think it more likely that this was meant as significantly uneven ground between the raised bitumen/ tar and the path. I accept the applicant’s evidence that the uneven ground was this area of raised bitumen/car next to a tree under which he had parked his vehicle. It is also significant that he was carrying his work tools. I infer, by common knowledge and ordinary human experience, that carrying the tools that I have found the applicant was carrying would likely reduce one’s ability to safely walk across and negotiate the type of uneven ground I have found the applicant met during the incident. This was one of the matters Dr Gehr took into account (ARD 27 penultimate paragraph). I accept the applicant’s and Dr Gehr’s evidence (apart from the twist in each case) and infer, taking into account all the evidence, that the applicant’s stepping onto the uneven ground imposed sufficient force to his knee, and was responsible for the “immediate…” or “sudden” onset of pain and at the time is right knee “gave in”. I do so on the basis of all the evidence noted above and my common knowledge and ordinary human experience. I also find this suddenly produced the symptoms the applicant has described, and which persist to this day.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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