Compensation Case Review Department of Ageing, Disability and Homecare and Mariniello

 Case Review – Department of Ageing, Disability and Homecare and Mariniello in the Workers Compensation Commission of New South Wales – Whether later injuries were related to earlier workplace injury?

This was an appeal by The Department of Ageing, Disability and Homecare (“The Department”) against a decision of the Commission, ordering the Department to pay the hospital and medical expenses of Ms Mariniello, for an injury arising out of or in the course of her employment. The Department had denied liability for hospital and medical costs, on the basis that the claim related to new injuries not related to the employment of Ms Mariniello.

The Facts

In 1991 Ms Mariniello injured her back while moving a washing machine in the course of her employment with The Department. Ms Mariniello underwent surgery at the L5/S1 level of her lower back and returned to work in 1992. In 1994 she received an award in her favour for weekly compensation payments, lump sum compensation for a ten per cent loss of efficient use of her right leg and lump sum compensation for a twenty per cent permanent impairment of her back.

From the time of the injury Ms Mariniello had continuous back and leg pain, which gradually became more severe and in 2007 her neurologist recommended further surgery, which was performed in January 2008 on her L4/5 and L3/4 discs.

In the initial hearing, the Arbitrator concluded that there was a clear “causative chain” between the back injury to the L5/S1 disc, in 1991 and the subsequent degeneration at L4/5 and L3/4 requiring surgery in 2008. Accordingly, Ms Mariniello’s  injury, had arisen out of her employment with The Department and the claimed hospital and medical expenses, for the 2008 surgery were reasonably necessary for the compensable back injury. 

The Appeal grounds

The Department appealed the primary decision on the following grounds:

-The Arbitrator placed undue reliance of the evidence of Ms Mariniello’s neurosurgeon, for the 2008 surgery in relation to the issue of causation.

-The Arbitrator placed undue reliance on Ms Mariniello’s report of continuing pain.

-The Arbitrator incorrectly applied the test, in determining that the causal link between the injury in 1991 and the surgery in 2008 had not been severed.

Was the surgery performed in 2008 reasonably necessary as a result of the injury received by Ms Mariniello in 1991?

In determining whether there was a causal chain, the Commission stated that the mere passage of time, between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. 

The case does not turn on whether there was a continuity of symptoms from 1991 to 2008, but whether the need for the 2008 surgery resulted from the 1991 injury.

The Decision

The Commission held that Ms Mariniello’s claim for hospital and medical expenses, arising from the 2008 surgery were reasonably necessary, as a result of the injury to her lumbar spine in 1991. Accordingly, the appeal by The Department was dismissed.

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