IT’S A DATE: THE IMPORTANCE OF CLEAR CAUSAL OPINION IN CLAIMS FOR SURGERY

McQuillan v Sean Mitchell Agencies Pty Ltd [2025] NSWPICPD 22 

Rankin Ellison Lawyers successfully defended an appeal seeking the costs of surgery under sections 59 and 60 of the Workers Compensation Act 1987 for a claimed lumbar spine condition.  

Brief Facts

The Appellant had worked as a supervisor and yardman for a period of around twenty-four years. During that period he suffered a number of injuries to his back which led to lumbar surgery in 2006. In February 2013 he had also been involved in a motor vehicle accident that aggravated chronic back pain. 

On 15 July 2015 the Appellant suffered further injury at work whilst handling a heavy sandstone block in coordination with four co-workers. He then suffered at least three further injurious events at work with the last being in January 2018 while handling a heavy truck tyre. 

The Appellant had after a period of conservative treatment then came to assessment by a specialist spine surgeon and was recommended for a L3-S1 decompression and fusion. Approval was sought and the matter referred to Rankin Ellison for assistance.  

Rankin Ellison Lawyers factually and medically investigated the allegations and advised its Insurer client in regard to liability.  As a result a section 78 notice was issued on the basis that sections 59 and 60 of the 1987 Act were not satisfied. At issue was whether the need for surgery was resultant of the 15 July 2015 injury as claimed by the Appellant.  

Decision at First Instance

The matter proceeded to the Personal Injury Commission by way of Application to Resolve a Dispute for which Rankin Ellison Lawyers represented EML in its capacity as the Insurer of the Employer. Rankin Ellison Lawyers had also sought the expert assistance of Mr Paul Barnes, of Counsel.  

The Member found that although the requested surgery was reasonably necessary under the established principles in Diab v NRMA Ltd [2014] NSWWCCPD 72 the medical evidence was insufficient to establish that the need was resultant of the 15 July 2015 injury which the Appellant had relied upon in the ARD. The expert reports of Drs Chien and Singh were held not to have addressed nor established a causal nexus between the 15 July 2015 injury and need for surgery.  

The Member considered that the injury on 15 July 2015 was self-limiting and the evidence relied upon by the Appellant had not materially contributed to the need for surgery in line with the opinion of the Respondent’s expert doctor. 

Decision on Appeal

The Appellant appealed the decision of the Member which formed the basis of McQuillan v Sean Mitchell Agencies Pty Ltd [2025] NSWPICPD 22 before Acting Deputy President Paul Sweeney. Rankin Ellison Lawyers again represented the interests of the Respondent and provided comprehensive submissions as to why the decision of the Member was correct and the appeal ought to be dismissed. 

ADP Sweeney reiterated the principles in Raulston v Toll Pty Ltd that a Member’s factual findings ought not be disturbed unless it is established on the evidence that a conclusion was wrong.  

The Member was considered by ADP Sweeney to have appropriately considered the relevant evidence and the progression of symptoms over time with respect to previous injuries and the relied upon 15 July 2015 injurious event. The Member had also appropriately considered and explained his reasoning for not accepting the expert reports of Drs Chien and Singh who had failed to provide adequate opinions as to causal connection between the 15 July 2015 injury and the now sought spinal surgery. 

ADP Sweeney considered that the Member had not taken evidence of the progression of symptoms out of context and had provided sufficient reasoning with respect to his position on the Appellant’s condition before and after the 15 July 2015 injurious event.  

ADP Sweeney considered that the Appellant’s reliance on only one injurious event as causative of the need for spinal surgery was perplexing given that all that is required is a material contribution to an increased incapacity or need for treatment for section 59 and 60 of the 1987 Act to apply.  

ADP Sweeney noted that it “…remains necessary for parties to make sound choices in respect of their pleadings. Where there are multiple compensable injuries, claiming compensation against only one of those injuries may diminish a worker’s prospects of success on his or her claim” [76]  

It was then not established that there was any misunderstanding or misdirection by the Member as to the contemporaneous medical evidence and the lack of causal connection between the 15 July 2015 injury and the reasonable necessity of the requested surgery. The appeal was dismissed.  

Should you have any queries concerning a particular workers compensation matter, please contact our team on either (02) 8297 5900 or (02) 4929 9333.