Stone v Gilbarco Australia Pty Ltd - [2023] NSWPIC 257

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Stone v Gilbarco Australia Pty Ltd [2023] NSWPIC 257
APPLICANT:	Raymond Barry Stone
RESPONDENT:	Gilbarco Australia Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	2 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of surgery on the cervical spine; whether injury occurred on date of accident; whether later treatment caused by accepted left shoulder surgery; Held – evidence of insufficient weight to meet onus as to either injury or main contributing factor; Pearce v Secretary Department of Communities and Justice considered; Kooragang Cement Pty Ltd v Bates considered; Qannadian v Bartter Enterprises Pty Limited referred to; award for the respondent.
DETERMINATIONS MADE:	1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Raymond Stone, the applicant, brings an action against Gilbarco Australia Pty Ltd, the respondent for a declaration that the proposed C5/6 anterior cervical decompression and fusion is reasonably necessary, and orders for the associated costs to be paid by the respondent.
Dispute notices were issued and an Application to Resolve a Dispute (ARD) and Reply were lodged in due course.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) did the applicant injure his cervical spine?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was heard by video link on 31 March 2023. The application was represented by Mr Michael Hart of counsel instructed by Mr Christian Hart. The respondent was represented by Mr Andrew Combe instructed by Mr Lloyd Carman. Ms Tang appeared for the insurer.
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 my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    letter of instructions emailed during the hearing on 31 March 2023.

Oral evidence

No application was made.

FINDINGS AND REASONS

Preliminary

At the outset of the case Mr Hart was invited by Mr Combe to clarify the nature of the pleadings. In its original form the injury details pleaded a personal injury on 21 November 2013 which caused injuries to the left shoulder, left knee and neck.
Mr Hart made the following consent amendments:
(a)    Delete the words:
“consequential injury to the neck being an aggravation, acceleration, exacerbation or deterioration of the degenerative change.”
(b)    The description in the injury box to read:
“the worker tripped on an unmarked ledge when entering accommodation, falling onto his outstretched hand, and suffering injuries to the left shoulder, left knee and neck...”
(c)    The type of injury box was amended to read:

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 257
Decision Date: 2 June 2023

CaseChat Overview and Summary

In the case of Stone v Gilbarco Australia Pty Ltd, the claimant, Stone, sought compensation for surgery on his cervical spine, arguing that the injury occurred during his employment. The defendant, Gilbarco Australia Pty Ltd, contested the claim, asserting that any injury was either not caused by the employment or was significantly contributed to by subsequent treatment related to an earlier accepted left shoulder surgery. The matter was heard in the Workers Compensation Court of Queensland.

The primary legal issues for the court to decide were whether the injury to the cervical spine occurred on the date of the accident, and if the subsequent treatment did not constitute a significant contributing factor to the injury. The court had to evaluate the evidence presented by both parties to determine if the claimant had met the necessary burden of proof. The court considered whether the evidence was sufficient to establish that the injury was caused by the accident and not by subsequent treatment.

In delivering the judgment, the court examined the evidence meticulously, considering the statutory and case law principles applicable to workers compensation claims. The court referred to the decision in Pearce v Secretary Department of Communities and Justice, which emphasised the importance of establishing a causal link between the employment and the injury. Additionally, the court considered the principles from Kooragang Cement Pty Ltd v Bates, which addressed the issue of subsequent treatment and its impact on the causation of injury. The court found that the evidence provided by the claimant was insufficient to meet the onus of proving both that the injury occurred on the date of the accident and that the subsequent treatment did not significantly contribute to the injury. The court ultimately awarded the costs of the proceedings to the respondent.

The final orders of the court were that the claimant's application for compensation for the cervical spine surgery was dismissed, and the respondent was awarded its costs of the proceedings.

Orders