Tzivanopoulos v Endeavour Energy - [2022] NSWPIC 23

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tzivanopoulos v Endeavour Energy [2022] NSWPIC 23
APPLICANT:	George Tzivanopoulos
RESPONDENT:	Endeavour Energy
MEMBER:	Anthony Scarcella
DATE OF DECISION:	18 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Section 4(b)(ii) of the 1987 Act injury to the cervical spine disputed; entitlement to weekly benefits disputed; proposed surgery to the cervical spine disputed; Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, State Transit Authority v El-Achi, AB v AW, Jones v Dunkel, Murphy v Allity Management Services Pty Ltd and Diab v NRMA Ltd considered and applied; Held- the applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease process in the cervical spine within the meaning of section 4(b)(ii) of the 1987 Act arising out of or in the course of his employment with the respondent deemed to have occurred on 9 January 2019; the applicant has had no current work capacity from 9 January 2019 within the meaning of section 32A of the 1987 Act; the C6/7 anterior cervical discectomy and fusion surgery proposed by Dr Peter Khong reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent deemed to have occurred on 9 January 2019 within the meaning of section 60 of the 1987 Act; the respondent is to pay the applicant weekly compensation in respect of the injuries arising out of or in the course of his employment with the respondent deemed to have occurred on 9 January 2019.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease process in the cervical spine within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987 arising out of or in the course of his employment with the respondent deemed to have occurred on 9 January 2019. 2. The applicant has had no current work capacity from 9 January 2019 within the meaning of s 32A of the Workers Compensation Act 1987. 3. The C6/7 anterior cervical discectomy and fusion surgery proposed by Dr Peter Khong reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent deemed to have occurred on 9 January 2019 within the meaning of s 60 of the Workers Compensation Act 1987. The Commission orders: 4. The applicant’s claim in respect of a consequential/secondary psychological condition as a result of the alleged cervical spine injury deemed to have occurred on 9 January 2019 is discontinued. 5. The respondent is to pay the applicant weekly compensation in respect of the injuries arising out of or in the course of his employment with the respondent deemed to have occurred on 9 January 2019 as follows: (a) Pursuant to s 36(1) of the Workers Compensation Act 1987: $2,145.30 per week from 10 January 2019 to 31 March 2019. $2,177.40 per week from 1 April 2019 to 10 April 2019. (b) Pursuant…

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

AGLC: Tzivanopoulos v Endeavour Energy [2022] NSWPIC 23
Case: [2022] NSWPIC 23
Decision Date: 18 January 2022

CaseChat Overview and Summary

In the case of Tzivanopoulos v Endeavour Energy, the applicant, Mr. Tzivanopoulos, brought an action in the Workers Compensation Claims Division of the South Australian District Court against the respondent, Endeavour Energy. The primary dispute was centered on the entitlement of Mr. Tzivanopoulos to workers' compensation benefits, specifically regarding the aggravation or exacerbation of his cervical spine condition, the proposed surgical intervention, and the ongoing weekly benefits following the claimed injury that occurred on 9 January 2019. The court had to determine whether the injury met the criteria for compensation under section 4(b)(ii) of the Workers Compensation Act 1987, assess Mr. Tzivanopoulos’s current work capacity, and decide the necessity of the proposed surgical treatment.

The legal issues before the court involved interpreting the statutory provisions concerning the aggravation of a pre-existing condition, the criteria for determining the necessity of medical treatment, and the assessment of the applicant's ongoing incapacity for work. Specifically, the court needed to establish whether the injury sustained by Mr. Tzivanopoulos constituted an aggravation or deterioration of a disease process within the meaning of section 4(b)(ii) of the Act. Furthermore, the court was required to determine whether the proposed surgical procedure was reasonably necessary treatment in accordance with section 60 of the Act.

The court meticulously examined the statutory definitions and relevant case law, including Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, State Transit Authority v El-Achi, AB v AW, Jones v Dunkel, Murphy v Allity Management Services Pty Ltd, and Diab v NRMA Ltd. The court found that the applicant had suffered an aggravation of his cervical spine condition arising out of his employment, which met the criteria under section 4(b)(ii) of the Act. Additionally, the court determined that Mr. Tzivanopoulos had no current work capacity from the date of the injury, and the proposed surgical intervention was reasonably necessary. Consequently, the court ordered that the respondent must pay the applicant weekly compensation from 9 January 2019, in line with the statutory provisions.

Orders