Taylor v Ongmac Trading Pty Limited - [2022] NSWPIC 42

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Taylor v Ongmac Trading Pty Limited [2022] NSWPIC 42
APPLICANT:	Heath Taylor
RESPONDENT:	Ongmac Trading Pty Limited
MEMBER:	John Wynyard
DATE OF DECISION:	3 February 2022
CATCHWORDS:	WORKERS COMPENSATION - Application for a declaration pursuant to section 60 (5) of the Workers Compensation Act 1987 that a proposed right knee arthroscopy was reasonably necessary; applicant, having undergone a right knee arthroscopy on 2 July 2020, went to a hotel after attending his physiotherapist on 28 July 2020; his foot got caught in a rail, resulting in a twisting injury to his knee which caused a fresh tear to his medial meniscus, to a separate part of the medial meniscus to that which had been operated on earlier; whether the earlier work related knee injury materially contributed to the applicant's current condition; whether the applicant had fully recovered from his earlier arthroscopy; whether the mechanism of injury was such to have caused the fresh tear of itself; Held - contemporaneous material established that the applicant had not fully recovered; respondent's experts’ opinion that the mechanics of the injury sufficient to cause the fresh tear speculative and rejected; evidence of applicant's expert of high incidence of re-tearing following partial meniscectomies accepted by respondent's expert; Kumar v Royal Comfort Bedding Pty Ltd, Secretary, NSW Department of Education v Johnson , Ozcan v MacArthur Disability Services Ltd and Bouchmouni v Bakhos Matta trading as Western Red Services applied; award applicant.
DETERMINATIONS MADE:	1. The respondent will pay the cost of and associated with the proposed right knee arthroscopy proposed by Dr Prodger in his report of 8 September 2020.

STATEMENT OF REASONS

BACKGROUND

Heath Taylor, the applicant, brings an action against Ongmac Trading Pty Limited, the respondent, for a declaration pursuant to s 60(5) of the Workers Compensation Act 1987 (1987 Act) that the proposed surgery, being a right knee arthroscopy, is reasonably necessary.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) is the need for the proposed surgery causally related to the subject injury?

PROCEDURE BEFORE THE COMMISSION

The matter was heard in a teleconference arbitration on 1 December 2021. The applicant was represented by Mr Simon Hunt of counsel instructed by Ms Melanie Lomes from Messrs Somerville Laundry Lomax. The respondent was represented by Mr Dewashish Adhikary of counsel instructed by Ms Shannon Watts from SMK Lawyers. 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…

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: [2022] NSWPIC 42
Decision Date: 3 February 2022

CaseChat Overview and Summary

Taylor brought an application for a declaration that a proposed right knee arthroscopy was reasonably necessary under the Workers Compensation Act 1987. Taylor had undergone a right knee arthroscopy on 2 July 2020 and had attended his physiotherapist on 28 July 2020. Later that day, his foot got caught in a rail, resulting in a twisting injury to his knee which caused a fresh tear to his medial meniscus, a separate part of the medial meniscus to that which had been operated on earlier. The dispute arose over whether the earlier work-related knee injury materially contributed to Taylor's current condition, whether Taylor had fully recovered from his earlier arthroscopy, and whether the mechanism of injury was such to have caused the fresh tear of itself.

The court was required to determine these issues, focusing on the evidence presented by both parties. The respondent's experts argued that the mechanics of the injury were sufficient to cause the fresh tear, but this opinion was deemed speculative and rejected by the court. The applicant's expert provided evidence of the high incidence of re-tearing following partial meniscectomies, which was accepted by the respondent's expert. The court considered relevant cases, including Kumar v Royal Comfort Bedding Pty Ltd, Secretary, NSW Department of Education v Johnson, Ozcan v MacArthur Disability Services Ltd and Bouchmouni v Bakhos Matta trading as Western Red Services, to support its decision.

The court found that contemporaneous material established that Taylor had not fully recovered from his earlier arthroscopy. It accepted the applicant's expert's evidence on the high incidence of re-tearing following partial meniscectomies and rejected the respondent's experts’ opinion that the mechanics of the injury were sufficient to cause the fresh tear of itself. The court held that the earlier work-related knee injury materially contributed to Taylor's current condition. The applicant was awarded the declaration sought, as the proposed right knee arthroscopy was reasonably necessary.

The final orders included a declaration that the proposed right knee arthroscopy was reasonably necessary. Taylor was awarded costs of the application.

Orders