The Executive Inn Pty Ltd v Mackinney - [2024] NSWPICPD 27

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	The Executive Inn Pty Ltd v Mackinney [2024] NSWPICPD 27
APPELLANT:	The Executive Inn Pty Ltd
RESPONDENT:	Margaret Therese Mackinney
INSURER:	Hotel Employers Mutual Limited
FILE NUMBER:	A1-W518/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	14 May 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 29 June 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – whether an accepted work injury has resolved – ongoing entitlement to weekly compensation – the relevance of medical evidence – May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; 322 ALR 330 considered
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr M van der Hout
BBW Lawyers
Respondent:
Mr M Bechelli, solicitor
Whitelaw McDonald
DECISION UNDER APPEAL:	Mackinney v The Executive Inn Pty Ltd [2023] NSWPIC 311
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	29 June 2023

INTRODUCTION

The respondent, Ms Margaret Mackinney, was employed by the appellant as a housekeeper. There is no dispute that whilst at work with the appellant on 7 July 2020, the respondent suffered injury to her back while trying to make up a foldout bed. The respondent has not worked since that date and managed her injury through conservative treatment measures, including spinal block injections in 2021.[1] The appellant accepted liability and made payments of weekly compensation and medical expenses until a notice was issued to the respondent under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) declining ongoing liability from 19 July 2022 on the basis that she had recovered from her work injury, and her continuing symptoms were due to a pre-existing condition. This notice was dated 7 June 2022 and raised ss 33 and 60 of the Workers Compensation Act 1987 (the 1987 Act).[2]
[1] Reply to Application to Resolve a Dispute (Reply), pp 33–37.
[2] Application to Resolve a Dispute (ARD), p 4.
The respondent sought a review of the s 78 notice, which was rejected by way of a s 287A notice issued under the 1998 Act.[3]
[3] ARD, p 56.
As a consequence of this denial of liability, proceedings were commenced by the respondent in the Personal Injury Commission, claiming weekly compensation pursuant to s 37 of the 1987 Act from 19 July 2022 to 17 January 2023.[4]
[4] While the respondent’s ARD claimed ongoing weekly compensation from 19 July 2022 pursuant to ss 37 and 38 of the 1987 Act, as is referenced by the Member in the Reasons, the orders sought by the respondent in her written submissions dated 14 April 2023 limited the claim to a closed period, at p 7.
The proceedings were the subject of a preliminary conference before Member Wynyard on 6 March 2023. As the matter did not resolve, the Member directed that written submissions be filed and exchanged, which direction was complied with by the parties. The issues for determination by the Member were whether the respondent’s injury…

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] NSWPICPD 27
Decision Date: 14 May 2024

CaseChat Overview and Summary

The Executive Inn Pty Ltd v Mackinney involved a dispute concerning the ongoing entitlement of the respondent, Mr Mackinney, to weekly compensation for a work injury. The appellant, The Executive Inn, contested the respondent's entitlement to weekly compensation on the grounds that there was no medical evidence post 30 August 2022 supporting a finding of total incapacity. This appeal focused on the necessity of medical evidence to substantiate a finding of incapacity, a matter which was considered in the context of relevant legal principles and precedents.

The central legal issue in this case was the extent to which medical evidence is required to substantiate a finding of incapacity following a work injury. The appellant argued that the absence of medical evidence post 30 August 2022 should negate the finding of total incapacity. This argument was evaluated against the backdrop of the Full Federal Court’s findings in May v Military Rehabilitation and Compensation Commission, which emphasised that medical evidence is not always necessary to substantiate an injury claim. Instead, common-sense inferences drawn from the sequence of events can be sufficient, provided they are not contradicted by medical science.

The court examined the statutory context and the common understanding of the term "injury," noting that while medical evidence is relevant, it is not always determinative. The court highlighted that the Full Federal Court had previously established that a distinction exists between getting hurt and becoming sick, and that common-sense lay inference from clear sequences of events is valid unless contradicted by medical science. The court determined that the absence of medical evidence did not preclude a finding of incapacity if the sequence of events and common-sense inferences support such a conclusion. Therefore, the appellant's argument that a formal diagnosis or objective medical evidence was essential was rejected.

The court ruled in favor of the respondent, affirming his entitlement to weekly compensation. The decision underscored that the need for medical evidence is not an absolute requirement and that common-sense lay inferences can be sufficient to substantiate a finding of incapacity, particularly when supported by a clear sequence of events. This ruling reinforces the principle that medical evidence is not the sole determinant of incapacity in workers' compensation claims.

Orders

Orders of the court

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Background

Background to the litigation

However, the essence of this appeal ground relates to the appellant’s complaint that there was no medical evidence after 30 August 2022 supporting a finding of total incapacity. Indeed, the appellant’s submission elevates the requirement for there to be such medical evidence as constituting the sine non qua of a member making a finding of incapacity. This is not correct in principle. The question of the need or role for medical evidence was examined in May v Military Rehabilitation and Compensation Commission[43] where the Full Federal Court found:[43] [2015] FCAFC 93; 322 ALR 330 (May).“118. The meaning of the word ‘injury’ in s 4(1) comes in part from the statutory legal context of, and what is revealed by, cases such as Hume Steel, McIntosh, Zickar and Kennedy Cleaning. The phrases used in those cases are not substitute definitions, but are exemplifications of meaning. Their utility and relevance will often be influenced or dictated by the precise context. For instance, suddenness is of particular relevance when distinguishing between the natural progression of a disease and an event or incident that is an injury. Also, there is a degree of ordinary meaning or common understanding involved, as was recognised by Latham CJ in Hume Steel: the difference between getting hurt and becoming sick. Medical evidence or opinion will, of course, be relevant; but it may not be determinative. The place of common-sense lay inference from a clear sequence of events is to be recognised, as long as any such inference is not denied by medical science. In any particular case there may be a consideration of whether there is a harmful effect on the body, a disturbance of the normal physiological state producing physical incapacity, a sudden or identifiable or distinct physiological change, whether there is an event or incident or clinical diagnosis to explain such change, and such considerations will be made against a background of a distinction in the common use of language between getting hurt and becoming sick. The circumstances and the facts will influence what weight such considerations are given in the drawing of a factual conclusion in any particular case.…209. A number of misunderstandings and misdirections appear in this passage. First, on the authorities to which we have referred, and the proper construction of ‘injury’ in s 4, there is no basis for the distinction made by the Tribunal between evidence of what it calls ‘symptoms’ and the need for a ‘diagnosis’. As part of the statutory question, one asks whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind. There is no warrant from the statute or the cases to require diagnosis or medically ascertained cause.…211. Given these findings by the Tribunal (and putting to one side their unnecessary characterisation by the Tribunal as ‘symptoms’) the question the Tribunal should have asked and answered was (in the light of the finding of the onset of vertigo and of all relevant material) whether the appellant suffered an injury, without seeing as essential preconditions a formal diagnosis or objective medical evidence corroborating the physiological changes reported by the appellant. The requirement for objective medical evidence and diagnosis misdirected the enquiry for substantiating material and tended to raise a requirement for an identifiable event or incident or cause that had a connection (of more than a temporal character) with employment.…216. This focus on the lack of pathology, aetiology or diagnosis which the Tribunal emphasises again at [62] and [66] of its reasons, illustrates the Tribunal’s misconception that it needed to be satisfied of an appropriate clinical diagnosis of the physiological disturbances the appellant reported before it could find he had suffered an ‘injury’ within s 4(1).217. This focus on the need for an appropriate clinical diagnosis reflects a tendency to elevate a requirement for one kind of proof (medical opinion) over reasonably founded lay common-sense inference that is not scientifically derived, but drawn from the plain sequence of events. In Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538 Rich ACJ said the following at 563–564:‘In my opinion the conclusion of the Full Court is correct. I am greatly impressed by the sequence of events. The deceased, who had arrived at an age when arterio-sclerosis and atheroma afflict mankind, was a stevedore’s labourer. On the day of his death he climbed up the jib of the crane and lay prone on the crane with his arms outstretched, trying to replace a wire which had come off the gin. He failed to do so, returned to the deck and for some time, with his arms in a position raised over his head, helped in holding up a wire rope. Immediately after performing this task he collapsed. What weighs so much with me is the fact that he was brought to a standstill, as an ordinary lay observer would think, by the exertion he had undergone: cf. Partridge Jones and John Paton Ltd v James. I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology. When he finds that a workman of the not-so-young standing attempts in a posture calculated by reason of the pressure on the stomach to disturb or arrest the rhythm of the heart a very strenuous task not forming part of his ordinary work and then collapses almost immediately and dies from a heart condition, why should not a court say that here is strong ground for a preliminary presumption of fact in favour of the view that the work materially contributed to the cause of death? From this standpoint the investigation of physiological and pathological opinion shows no more than the current medical views find insufficient reason for connecting coronary thrombosis with effort. Be it so. That to my mind is not enough to overturn or rebut the presumption which flows from the observed sequence of events. If medical knowledge develops strong positive reasons for saying that the lay common-sense presumption is wrong, the courts, no doubt, would gladly give effect to this affirmative information. But, while science presents us with no more than a blank negation, we can only await its positive results and in the meantime act on our own intuitive inferences. The conclusion of the special magistrate may prove to be in advance of its time, but, as matters stand, I prefer that of the Full Court.’” (emphasis added)

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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