Medication for a prescribed injury – Whether it can result in consequential conditions

Hernandez v State Rail Authority of NSW [2023] NSWPICPD 61

The Appellant suffered injuries to his back during the course of his employment with the State Rail Authority of NSW (First Respondent) on 18 December 1973, 16 August 1976 and 8 December 1987 and Adstock Pty Ltd formerly known as GL Cooper Sales Pty Ltd (Second Respondent) on 27 April 1992.

The Appellant alleged, inter alia, suffering consequential cardiac and renal conditions as a result of his accepted back injuries, namely due to the ingestion of medication prescribed to treat the back injuries. The Respondent disputed the consequential cardiac and renal conditions and the treatment expenses for same pursuant to Section 60 of the Workers Compensation Act 1987.

The dispute came before Member Sweeney who determined in a COD dated 2 June 2021 that the Appellant had not established that he had suffered consequential cardiac or renal conditions as a result of his back injuries nor that the need for treatment of these conditions resulted from the back injuries. The Appellant appealed this decision and on 17 February 2022, Deputy President Wood remitted the matter to another Member to determine whether the Applicant’s renal and cardiac conditions resulted from the back injuries.

The matter came before Member Batchelor who issued a  Certificate of Determination on 20 July 2022.  Member Batchelor determined that the Applicant had not established, on the balance of probabilities, that the renal and cardiac conditions for which he suffers resulted from his accepted back injuries.  An Award was entered in favour of the Respondents in respect of the Applicant’s claim for Section 60 expenses relating to the Applicant’s renal and cardiac conditions. The Appellant appealed this decision.

Grounds of Appeal

The Appellant put the following grounds of appeal:

1. The Member committed errors of law by misinterpreting/misconstruing DP Wood’s decision and the scope of the remitter.
2. The Member committed errors of law by confining the issue for determination in respect of the Appellant’s renal and cardiac condition to whether they were related to the ingestion of medication prescribed to treat the Appellant’s back injuries only.
3. The Member committed errors of law by making findings/determinations which denied the Appellant procedural fairness
4. The Member committed errors of law by failing to respond to substantial, clearly articulated arguments.
5. The Member committed errors of law by treating the findings of Member Sweeney as being binding.
6. The Member committed errors of fact by determining the Appellant “has not established on the balance of probabilities that the renal condition and his cardiac condition from which he suffers results from injuries to the back”
7. The Member’s decision that he could not have regard to the Appellant’s inability to exercise as a possible material contribution to the renal and cardiac conditions and he could only have regard to whether the ingestion of medication to treat the accepted back injuries materially contributed to the renal and cardiac conditions was a decision that was so unreasonable that no reasonable body could have come to.
8. The Member committed errors of law by failing to provide adequate reasons for his determination that the renal and cardiac conditions did not result from the accepted back injuries.

Decision

In regard to the first and second grounds of Appeal, Acting Deputy President Geoffrey Parker (Acting DP Parker) stated that Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides that Member Batchelor was to determine the issue remitted “in accordance with” DP Wood’s decision. Acting DP Parker considered that Member Batchelor correctly understood the matter which was remitted for determination and did not commit an error in confining the issues for determination in the manner in which he did. Acting DP Parker dismissed the first and second grounds of appeal.

The Appellant submitted that he was denied procedural fairness by confining the enquiry to the cause of the consequential conditions to the ingestion of the medication to treat his back injuries only. Given the remitter was limited to an enquiry as to whether the ingestion of the medication materially contributed to the development of the renal and cardiac conditions and not a general enquiry as to the causation of the renal and cardiac conditions, Acting DP Parker considered that the Appellant was not denied procedural fairness. He rejected ground three of the appeal.

In respect of whether Member Batchelor failed to respond to substantial, clearly articulated arguments, Acting DP Parker considered that he was only required to address arguments, evidence and submissions relating to the issue which was remitted to him. He did not need to consider arguments that were not relevant to the issues which were remitted. Acting DP Parker rejected and dismissed ground four of the appeal.

Acting DP Parker noted that apart from the determination as to whether the Appellant’s renal and cardiac conditions resulted from medication ingested for treatment of the injuries to the back, the findings of Member Sweeney remained intact. As such, DP Wood’s determination did not reverse the findings by Member Sweeney. Ground five of the appeal was dismissed

In respect of whether the Appellant had established on the balance of probabilities that the renal and cardiac conditions resulted from the injuries to the back, Acting DP Parker noted that Members Sweeney and Batchelor had found that there was a deficiency in the evidence so that neither of them were persuaded that the renal and cardiac conditions resulted from the injuries to the back. Acting DP confirmed that there was a lack of evidence and dismissed ground six of the appeal.

The Appellant asserted that Member Batchelor’s decision was so unreasonable that no reasonable body have could have come to it. Acting DP Parker did not agree with this submission and considered that Member Batchelor’s interpretation of the matters remitted to him were correct and reasonable. On this basis, he dismissed ground seven of the appeal.

In respect of whether Member Batchelor provided adequate reasons for his determination, Acting DP Parker noted that the Member expressly provides reasons and it was difficult to see what additional reasons could have been provided. Ground eight of the appeal was dismissed.

Overall, Acting DP Parker dismissed the Appellant’s appeal and the Certificate of Determination of Member Batchelor dated 20 July 2022 was confirmed.

Implications

This decision highlights that the burden of proof of establishing their claim rests upon the Applicant. It is necessary for an Applicant to prove, via  contemporaneous and primary medical evidence, that a consequential condition results from an accepted injury.

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