Appeal Case Summaries

Elliot v Franklins Pty Limited [2022] NSWPICPD 38

WORKERS COMPENSATION – whether effects of an injury have ceased – whether an injury has resolved - onus of proof resides with the party asserting injury has ceased or resolved – Commonwealth v Muratore [1978] HCA 47; 141 CLR 296 applied – University of New South Wales v Brooks [2014] NSWWCCPD 68 applied – member’s decision revoked on appeal – new decision made – section 352(6A) of the 1998 Act

Phillips P

18 October 2022

Facts

The appellant worker was employed by the respondent as a contracts manager in the respondent’s property development department. On 8 January 2010, whilst the appellant was undertaking a full site survey at one of the respondent’s supermarkets at Westleigh, the appellant developed significant pain in her lower back as a result of bending, twisting, lifting and other repetitive movements undertaken in the course of her site survey.

It was undisputed that prior to her employment with the respondent, the appellant had a significant history of pain and disability in her lumbar spine requiring extensive medical treatment.

In 2012, the appellant commenced proceedings in the then Workers Compensation Commission for the injury in 2010, claiming weekly compensation and medical expenses. Ultimately, those proceedings resolved by consent on 5 February 2013, with the respondent agreeing to pay the appellant a closed period of weekly compensation and medical treatment expenses.

The appellant subsequently underwent three spinal surgeries in 2014, 2017 and 2018, and made a claim for 37% whole person impairment in respect of her lumbar spine, cervical spine, both lower extremities, the upper and lower gastrointestinal tract and scarring. Liability was declined on the basis that the appellant had recovered from the injury to her lumbar spine of 8 January 2010 and the respondent disputed that it was causative of the other injuries alleged. The respondent also asserted that several of the spinal surgeries were not occasioned as a result of the injury of 8 January 2010, noting that the cost of those surgeries had not been claimed from the respondent.

Proceedings were ultimately commenced in the Personal Injury Commission, with the appellant claiming lump sum compensation for 37% whole person impairment and medical expenses of $240,309.31. The primary question for determination by the Member at first instance was whether the effects of the accepted injury to the lumbar spine on 8 January 2010 had passed, and as a result whether any pain or disability continuing to be experienced by the appellant related to her pre-existing lumbar condition. The appellant asserted that the events of 8 January 2010 were of such a quality that they led to further surgeries and a complete inability to continue in the workforce. The Member was also tasked with determining whether the injury of 8 January 2010 caused injury to the cervical spine and the consequential conditions.

The appellant did not succeed in her claim with respect to her lumbar spine and the consequential conditions. With respect to this aspect of her claim, the Member entered an award in favour of the respondent. It was from the decision in respect of the lumbar spine that the appellant pursued this appeal and sought an order to set aside the award for the respondent made by the Member for that claim and the consequential conditions. The appellant was successful in establishing a primary injury to the cervical spine on 8 January 2010, and those orders made by the Member were not in dispute in this appeal.

The issues on appeal were whether the Member erred in:

(a) fact or law in making a negative credit/reliability finding in the absence of evidence or alternatively, failing to give reasons for his approach to assessing the reliability of the appellant’s evidence (Ground 1);

(b) fact and/or law in failing to give consideration to the medical and lay evidence of the appellant’s post injury medical progress and functional capacity (Ground 2);

(c) law in reversing the evidentiary onus on the question of whether the effects of injury had ceased, as argued for by the respondent (Ground 3), and

(d) law in posing the wrong legal test as to whether or not the appellant was entitled to the costs of the lumbar surgery (Ground 4).

Held: The Certificate of Determination was confirmed in part. Order 3 was revoked and on re-determination, the President entered an award in favour of the respondent in respect of the injury to the lumbar spine of 8 January 2010, and the claims for medical treatment pursuant to s 60 of the 1987 Act and lump sum compensation pursuant to s 66 of the 1987 Act.

Ground 1

1. In this ground of appeal, criticism was advanced of what was said to be a negative credit finding with respect to the appellant’s evidence and that there was a failure to give reasons for the Member making this finding when assessing the appellant’s evidence. The appellant asserted that the credit finding was not available to be made, or in the alternative, having made such a finding, insufficient reasons were given to substantiate such a finding. ([48], [52])
2. After reviewing the appellant’s evidence and the Member’s reasons, the President found that he did not read the Member’s reasons as making any adverse finding regarding the appellant’s credit or reliability as a witness. The Member clearly did not accept the appellant’s assertion about working “without difficulty”. His Honour made an alternate finding, in the event he was wrong, that the statement made at reasons [39], “It is apparent from the GP records that the [appellant] was not carrying out her work with the respondent ‘without difficulty’”, was a finding that was completely open to the Member having considered the medical evidence. ([62])
3. The President observed that it is apparent from ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 (Cheung), in particular at [28], that such documents will never be a complete record of an event, and as Cheung established, such a document must be understood and read in its context. There was no precise identification by the appellant of the alleged deficiencies in the medical histories and the records of treatment relied upon by the Member in his decision and these records were not the subject of criticism by the appellant in these proceedings. ([63]–[64])
4. This material read in context revealed that it was apparent from both the appellant’s evidence and a consideration of the history that she was unfortunately afflicted with a serious back complaint for approximately nine years immediately prior to the subject incident. The medical records read in context revealed the appellant suffering aggravations to her back condition from time to time which require medical interventions. The context and purpose of those records of course was providing medical treatment to the appellant, they did not purport to be a complete record because that was not their purpose. ([65])
5. The President held that the fact that the Member did not accept the appellant’s statement that she was carrying out her work with the respondent “without difficulty” was available upon a consideration of all of the relevant evidence. For the same reason, his Honour accepted the Member’s finding that the prior injury was not “minor”. Whilst the President did not consider this to be a positive adverse finding against the appellant’s credit, even if it was, it was a finding which was available and which involved the Member in no error. ([66])
6. The task before the Member was to weigh the evidence of the appellant together with the medical evidence of her prior lumbar condition. This the Member did, and this was a correct approach. It was apparent from a consideration of the material that the assessment being undertaken could not be decided on the basis of the appellant’s evidence alone. ([67])
7. On one view, the complaint in Ground 1 could be distilled to the following argument. Namely, the appellant’s evidence ought to have been accepted without qualification. This was not the correct approach. Rather, the Member undertook the process of weighing the evidence, both lay and medical, and was ultimately persuaded to reach the conclusion that he did based upon a detailed review of the medical evidence. ([68])
8. The second complaint under this ground was that the Member failed to give reasons for this approach to assessing the reliability of the appellant’s evidence. The President did not accept this assertion. A close reading of the Member’s decision as a whole, and in particular the passages starting at [16] leading up to the impugned paragraphs at reasons [38]–[39], sets out in some detail the reasons why the Member reached the view that he did. In particular, his Honour referred to the Member’s finding at reasons [36] which was not subject to any challenge in this appeal and which was a finding plainly available upon a consideration of the medical records. ([69]–[70])
9. The President concluded that neither error alleged in Ground 1 had been established, and as a consequence Ground 1 was dismissed. ([71])

Ground 2

10. The appellant maintained that the Member failed to give consideration to both lay and medical evidence of the appellant’s post injury medical progress and functional capacity. The question before the President was whether there was error in how the Member dealt with the post injury evidence. In this regard, the challenge was twofold, firstly in terms of the Member failing to give consideration to relevant evidence or being in error in terms of how it was dealt with. ([72]–[73])
11. In relation to the lay evidence, the President found that the appellant’s work capacity was not a matter in issue. Rather, the matter in issue was causation. The statutory obligation setting out the Member’s requirement to give reasons is found at s 294(2) of the 1998 Act and r 78 of the 2021 Rules. In summary, reasons must be “brief”. But additionally, where evidence is disputed, this dispute and how it is resolved must be explained by the Member. ([81]–[82])

(Jennifer Tyack formerly t/as Country Kidz v Cain[2007] NSWWCCPD 119 applied)

12. In the circumstances of this case, where the appellant’s evidence regarding her post injury capacity was not disputed, this was the relevant context within which the appellant’s complaint must be considered. There was no obligation upon the Member to resolve an issue that was not put in dispute. It is the parties’ obligation under the 2020 Act to facilitate “the just, quick and cost effective resolution of the real issues in the proceedings”. ([83]–[84])
13. The President held that the Member was not in error in terms of how the appellant’s evidence was dealt with. It was not necessary for the Member to make a positive finding with respect to a matter that was not in dispute and which, as the appellant correctly acknowledged, was not germane to the question of causation. As a consequence, no error in terms of how the Member dealt the appellant’s lay evidence had been established and this aspect of Ground Two was dismissed. ([85]–[86])

Ground 3

14. The appellant submitted that the Member had erred in placing the evidentiary burden on the appellant in establishing that the effects of the injury had not ceased. The President observed that the evidentiary onus to prove that an aggravation has ceased rests with the party who makes this assertion. In this case, it was the respondent who asserted that the incident on 8 January 2010 constituted an aggravation of the appellant’s longstanding back condition and that that aggravation ceased. The burden of proof in establishing this therefore rested upon the respondent. ([130]–[133])

(Commonwealth v Muratore [1978] HCA 47; 141 CLR 296 and University of New South Wales v Brooks [2014] NSWWCCPD 68 applied)

15. His Honour accepted the appellant’s submission that the Member had incorrectly placed the evidentiary burden on the appellant in this regard. As a consequence, Ground 3 was established. ([134])

Ground 4

16. The appellant alleged that the Member applied the wrong legal test in considering the appellant’s claim for the cost of lumbar surgery. The appellant pointed to the Member’s reasons at [55] as constituting a misstatement of the legal test. The appellant relied on the authority of Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy). ([135])
17. The President held that whatever the infelicity of the language used by the Member at [55] of the reasons, the correct test as referred to in Murphy had in fact been applied by the Member at [56] and [72] of the reasons. His Honour, reading the reasons as a whole, was satisfied that the correct legal test was formulated and applied by the Member in rejecting this claim. No error of approach had been established and Ground 4 was dismissed. ([140])

Re-determination

18. The evidentiary onus to prove that the aggravation of the appellant’s lumbar condition had ceased rested with the respondent to this appeal. The respondent asserted this position in their notice under s 78 of the 1998 Act. After reviewing the evidence of Dr Powell (orthopaedic surgeon qualified by the respondent), Dr Millons (orthopaedic surgeon relied on by the appellant) and Dr Donnellan (treating neurosurgeon), the President preferred the opinion of Dr Millons to that of the appellant’s doctors and in particular, Dr Donnellan. As a consequence of this, his Honour found in favour of the respondent in respect of the injury to the lumbar spine. ([143]–[184])
19. The respondent had established that the effects of the 8 January 2010 injury to the lumbar spine had ceased, and as a result there was an award for the respondent in this regard. Whilst the error established in Ground 3 required the President to re-determine the Member’s decision in respect of the claimed injury to the lumbar spine, it followed that having ultimately reached the same conclusion as the Member, the President confirmed the Member’s decisions in respect of the claims for the consequential conditions and surgical intervention to the lumbar spine and also noted that he had rejected any error in respect of the Member’s finding at Ground 4. The Member’s findings in respect of the cervical spine were not in question. ([185])

Fletcher International Exports Pty Ltd v Lee [2022] NSWPICPD 39

WORKERS COMPENSATION – Applications involving federal jurisdiction; Division 3.2 of the 2020 Act; application of Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 96 ALJR 476; 400 ALR 1 and associated authorities

Snell DP

21 October 2022

Facts

The respondent worker was employed by the appellant from November 2018 performing meat packing and slicing at the appellant’s premises at Dubbo. On 27 October 2020, the worker was seeking to free a box that was stuck on a conveyor belt, when she freed the box, the conveyor belt recommenced moving and her jacket was sucked into a machine. She stated that she was scared and thought she was going to die. She had to be freed by maintenance workers.

The worker described injuring her back and right leg and also being psychologically impacted. The worker resumed on light duties in the office. She stated that at one point she was given duties shredding documents and she was seen with paperwork that related to her claim. It was alleged she had stolen paperwork, she was sent home, and the employer terminated her employment on 1 June 2021.

The employer’s solicitors denied that a claim in respect of physical injuries had been properly made and denied that a claim relating to psychiatric injury had been made at all. It asserted that the worker had recovered from the effects of her physical injuries. Proceedings were ultimately commenced in the Commission on 19 January 2022, with the worker claiming weekly payments and medical expenses.

The Member noted that a preliminary issue arose in relation to whether the Commission had jurisdiction in the matter, as prior to lodging the application in the Commission, the worker had moved to reside in Queensland. The employer’s registered office was in NSW. The issue was whether the dispute was federally impacted and whether the Commission had jurisdiction in the circumstances.

On 7 June 2022, the Member issued a Certificate of Determination in which he expressed an opinion that the Commission was not exercising federal jurisdiction in determining the dispute. The Member decided the dispute in the worker’s favour and made awards for the payment of weekly compensation and reasonably necessary treatment expenses. The employer appealed.

The appeal raised the following grounds:

(a) error of law in regard to the determination as to jurisdiction (Ground 1);

(b) denial of procedural fairness (Ground 2);

(c) error of fact regarding current work capacity (Ground 3), and

(d) determining the matter on a basis not put by or to the parties (Ground 4).

Held: In the opinion of the Commission, the statement of opinion by the Member in the Certificate of Determination dated 7 June 2022, that the Commission was “not exercising federal jurisdiction in determining this dispute”, was made without jurisdiction and was of no legal force. To the extent that it was necessary, the Certificate of Determination dated 7 June 2022 was revoked. The matter was remitted to the Division Head of the Workers Compensation Division of the Commission.

Consideration of Ground 1

1. It was appropriate for the Deputy President to deal initially with Ground 1, which challenged (in a very general way) the correctness of the Member’s approach to the issue involving federal jurisdiction. ([61])

   The potential application of Division 3.2 of the 2020 Act

2. Deputy President Snell provided a brief overview of the operation of Div 3.2 of the 2020 Act in respect of a ‘compensation claim’ within the meaning of that Division; it did not purport to be exhaustive. Division 3.2 provides for the determination of matters which could not otherwise be determined by the Commission because they involve the exercise of ‘federal jurisdiction’ as defined in s 25 of the 2020 Act. A ‘compensation claim’ is defined in s 25 as “a claim for compensation or work injury damages to which the Workplace Injury Management and Workers Compensation Act 1998 applies”. A ‘compensation application matter’ is described in s 26(1). Shortly put, a person with standing to apply to the President or the Commission for determination of the matter may seek leave to make the application to the District Court instead. The application for leave is to be filed with the District Court, in the form and manner required, accompanied by any applicable fee (s 26(4)). Section 26(3) provides that leave may only be granted by the District Court if it is satisfied that:

   (a) an application was first made to the President or the Commission, and

   (b) the determination of the matter by the usual decision-maker would involve an exercise of federal jurisdiction, and

   (c) the usual decision-maker would otherwise have had jurisdiction enabling the decision-maker to determine the application. ([62])

3. If satisfied that the usual decision-maker has jurisdiction to decide the matter, the District Court, instead of or after granting leave, may remit the matter to the usual decision-maker for determination consistent with any orders made by the District Court to facilitate the determination (subss (5), (6) and (7) of s 26). ([63])
4. If the District Court grants leave for the application to be made to it instead of the President or the Commission (‘substituted proceedings’) the District Court may exercise all the jurisdictions and functions that the original decision-maker would have had if the original decision-maker could exercise federal jurisdiction (s 27(3)). This extends to matters involving medical assessment, and reviews or appeals before the panel (s 27(4)). The substituted proceedings are taken to have been commenced in the District Court on the day when the application was first made (s 27(1)(a)). Section 27(2) deals with the position of a party where time limits on the bringing of a claim or action may have expired, in circumstances where the application was first lodged to be dealt with by the usual decision-maker before the expiry of the period. Section 28 of the 2020 Act contains provisions relating to the determination of substituted proceedings. ([64]–[65])
5. Division 3.2 draws a distinction between a ‘compensation claim’, an application to the President or the Commission that a claim be determined by the usual decision-maker (the definition in s 25), and a ‘compensation matter application’ to the District Court for leave pursuant to s 26. Section 26(3)(a) requires that an application be first made to the President or the Commission, before leave may be granted by the District Court pursuant to s 26. There are specific procedural requirements pursuant to s 26(4), relating to the application to the District Court for leave, which must be satisfied. It is appropriate that the provisions of Div 3.2 be read together. ([66])

(Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 referred to)

6. In the current proceedings, an application pursuant to s 26, for determination by the District Court, would have required a specific application to the District Court for leave, in addition to the application initially made to the Commission for decision by the usual decision-maker. It would involve compliance with the various requirements in s 26. Neither of the parties made such an application. The appellant submitted the Commission lacked jurisdiction to determine the dispute. The appellant submitted the issue of jurisdiction was one for the District Court. In this regard, the appellant relied on two decisions of the Commission, which involved claims for damages for personal injuries sustained in motor vehicle accidents. In each instance the matters were dismissed pursuant to s 54(c) of the 2020 Act and r 77(b)(iv) of the 2021 Rules. In each instance it was stated that the dismissal was “primarily” because of where the claimant resided. It was stated that “the District Court is the appropriate venue to determine the issue of jurisdiction in matters such as these”. It was stated in both matters that “determination of the dispute may potentially involve the exercise of federal jurisdiction”. ([67]–[68])
7. Deputy President Snell held that the date on which residency is assessed is the date of filing of the relevant application. The Deputy President rejected the appellant’s submission that he should follow the two decisions referred to above. He said that he was not bound by them. On the limited factual background set out, it could not be concluded the above matters were between States, between residents of different States, or between a State and a resident of another State. It could not be concluded that the circumstances described would potentially involve an exercise of federal jurisdiction. The orders dismissing the proceedings effectively relied on the premise that there was no jurisdiction to determine the relevant disputes (r 77(b)(iv) of the 2021 Rules). The relevant provision in r 77(b)(iv) applies to “motor accidents legislation” (the situation in the two decisions relied on), not to “an application made under the workers compensation legislation” (like the current one). The Deputy President did not accept that the circumstances represented an appropriate basis for the dismissal of proceedings pursuant to s 54 of the 2020 Act, at the least in applications brought under the workers compensation legislation. These decisions could be readily distinguished from the current matter. They did not assist the appellant’s argument. ([69])

(Foxe v Brown [1984] HCA 69; 59 ALJR 186; 58 ALR 542; Watson v Marshall & Cade [1971] HCA 33; 124 CLR 621; R v Oregan; Ex parte Oregan [1957] HCA 18 ; 97 CLR 323, and Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 applied)

8. The appellant submitted that “the absolute first limb [of its jurisdictional argument] was it’s all a matter for the District Court”. Division 3.2 of the 2020 Act gives the District Court power to grant leave subject to the requirements in s 26(3). This includes being satisfied that determination by the usual decision-maker would involve an exercise of federal jurisdiction. If the District Court is satisfied the usual decision-maker has jurisdiction to determine the matter, it may remit the matter to the usual decision-maker accompanied, if appropriate, by orders to facilitate the determination: subs (5) to (7) of s 26. The Member dealt with the current matter in the absence of any application by a party pursuant to s 26. The Member dealt with the matter, consistent with the respondent’s submission, on the basis he could decide the matter, providing the Commission posited an opinion that this could be done without exercising federal jurisdiction. There was no application before the District Court. ([70])

The Member’s determination regarding jurisdiction

9. The Member concluded that his determination of the claim in the circumstances did not involve an exercise of federal jurisdiction. In its written submissions on the appeal, the appellant argued that the matter was federally impacted, and therefore should be referred to the District Court if the issue of federal jurisdiction was raised. In oral submissions, the appellant’s counsel submitted the Commission would have jurisdiction if there was “no real argument”, but rather that the jurisdictional argument was “merely colourable”. The appellant submitted that if there was a “real issue raised” it should be dealt with by the District Court. ([71]–[75])

(Attorney General for New South Wales v Gatsby[2018] NSWCA 254 and Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 96 ALJR 476 ; 400 ALR 1 (Cawthorn) discussed)

10. Deputy President Snell observed that in Cawthorn, the plurality dealt with whether it was necessary that an asserted constitutional defence meet “some threshold degree of arguability and, if so, what that threshold was”. The plurality said that “examination of what the prospects of success of a legally coherent claim or defence might be, were that claim or defence to be judicially determined on its merits, forms no part of the requisite assessment”. The plurality noted that there was an unchallenged finding in Cawthorn that a constitutional defence had been found to be “not colourable”. Their Honours said there could be no suggestion that the constitutional defence was not genuinely raised or was so incoherent as to be insusceptible of judicial determination. In those circumstances the hearing and determination of the defence in that case was “beyond the jurisdiction conferred on the Tribunal by the State Act”. ([76]–[80])
11. The Deputy President said that the Member did not deal with the jurisdictional issue in Ms Lee’s case by reference to whether the appellant’s jurisdictional argument was “unarguable”, “colourable” or “manifestly hopeless”. It did not appear that the jurisdictional issue was raised with the Member at first instance in those or related terms. The matter proceeded on the uncontroversial basis that the Commission was not a court. ([81])
12. Deputy President Snell found, on a fair reading of the reasons, that it was clear the Member dealt with the defence based on federal jurisdiction on the basis that he was determining that substantive issue on its merits, as opposed to considering its arguability. The reasons of the plurality in Cawthorn made it clear that this was “no part of the requisite assessment”. Such a course, like determining whether a claim or defence amounted to an abuse of process, would “inevitably involve that tribunal being drawn down the forbidden path of judicially determining the merits of a matter within a description in s 76(i) or s 76(ii) of the Constitution”. ([77]–[78], [88])
13. It followed that the Member erred in how he approached the issue of whether the Commission had jurisdiction in the circumstances and in his finding regarding whether the matter was federally impacted. ([89])

(Burns v Corbett [2018] HCA 15; 265 CLR 304 applied)

14. In the Deputy President’s opinion, the Member’s decision, made without jurisdiction, was wholly lacking in legal force. To the extent that it was necessary, the decision was revoked. The proceedings remained on foot. The Deputy President observed that the most efficacious way to bring them to a conclusion would be for a party with appropriate standing to make an application to the District Court pursuant to s 26 of the 2020 Act. The matter was remitted to the Division Head of the Workers Compensation Division. ([90]–[91])
15. In the circumstances, it was not necessary or appropriate that the Deputy President deal with a statutory construction argument made by the appellant regarding the interpretation of s 26 of the 2020 Act or with the remaining grounds of appeal. ([92])

Ford v Narrabri Shire Council [2022] NSWPICPD 40

WORKERS COMPENSATION – acceptance of evidence – Shellharbour City Council v Rigby [2006] NSWCA 308; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied – whether proposed treatment reasonably necessary – Rose v Health Commission (NSW) [1986] NSWCC 2 applied

Wood DP

31 October 2022

Facts

The appellant worker suffered a piercing injury to his left foot on 21 April 1998 when he stepped off a front-end loader onto a spike from a tree trunk in the course of his employment with the respondent. He experienced significant complications from that injury, which included recurring infections, failure of the wound to heal and the need to amputate part of the left foot. The appellant subsequently aggravated his left foot condition and experienced symptoms in his right foot. He also developed medical complications from the right foot injury, resulting in an amputation of the right leg below the knee in 2019.

The appellant underwent extensive ongoing treatment at the hands of various medical specialists. He also suffered from numerous co-morbid conditions which impaired attempts at rehabilitation. Ultimately the appellant was referred to Associate Professor Al Muderis, orthopaedic surgeon, who considered that a right leg socket mounted prosthesis was not suitable for the appellant, and that the appellant should undergo osseointegration surgery and targeted muscle reinnervation. Osseointegration surgery involves a prothesis which is implanted, in this case into the appellant’s knee, using a metal rod and fixtures.

The appellant sought approval from the respondent for the payment of the cost of the proposed surgery. The respondent declined liability on the basis that the surgery was not reasonably necessary. The reasons provided for the declinature included the impact that the appellant’s co-morbidity issues (which included type 2 diabetes, cardiac issues and vascular dementia) may have on the success of the surgery and the conflict in the medical opinions as to whether the surgery was appropriate for the appellant.

Before the matter was listed for arbitration, the Member referred the issue to an independent Medical Assessor, Dr Negus, for a non-binding opinion in relation to whether the proposed surgery was reasonably necessary. The Member ultimately issued a Certificate of Determination in which she determined that the treatment proposed by A/Prof Al Muderis was not reasonably necessary treatment as a result of the appellant’s injury. The worker appealed.

The issues on appeal were whether the Member erred in:

(a) law by misapplying the test or standard of “reasonably necessary” (Ground A);

(b) fact by arriving at conclusions about the appellant’s ability to participate in rehabilitation (Ground B), and

(c) fact by failing to have regard to the fact that the evidence relied upon by the appellant was cognisant of the appellant’s co-morbidities (Ground C).

Held: The Member’s Certificate of Determination dated 22 March 2022 was confirmed.

Consideration

1. In Grounds B and C of the appeal, the appellant asserted that the Member erred in fact in respect of her conclusions relating to the appellant’s ability to participate in rehabilitation (Ground B) and by failing to take into account that the appellant’s evidence was cognisant of the appellant’s co-morbidities (Ground C). It was convenient for the Deputy President to consider those grounds before turning to the alleged error of law asserted in Ground A. ([123])

Ground B

2. The appellant submitted that the Member’s finding that his ability to participate in rehabilitation was low was not rationally supported by the evidence. The basis upon which the appellant asserted that the conclusion was wrong was that he gave statement evidence that he was committed to ensuring the success of the surgery by: having lost 20 kilograms in the past two years; attending the gymnasium at the nursing home in order to strengthen his leg, and expressing an intention to comply with the post-surgery rehabilitation requirements. ([125])
3. The Member conceded in her reasons that the appellant’s failure to participate in rehabilitation and to follow nursing instructions after the amputation of his leg in 2019 did not necessarily establish that the appellant would not comply with those requirements when undergoing the osseointegration surgery and rehabilitating from that surgery. ([127])
4. Deputy President Wood observed that there was ample evidence, however, to support the Member’s ultimate conclusion that the prospect of the appellant complying with what was described by the medical experts as an intensive rehabilitation program was low. The Member concluded that, on the basis of Dr Tetsworth’s (orthopaedic surgeon of the Limb Reconstruction Centre of Macquarie University) views about the benefits of the surgery, the rehabilitation was of critical importance to any benefit derived from the surgery. She referred to Dr Negus’s relatively contemporaneous observation that there needed to be greater commitment and compliance to nursing care by the appellant in order for the surgery to succeed. The Member provided a thorough summary of all of the medical evidence and concluded that she preferred the evidence of Dr Huang (orthopaedic and trauma surgeon qualified by the respondent), Dr Nicklin (plastic and reconstructive surgeon qualified by the respondent) and that of Dr Negus. ([128])
5. The Deputy President held that the Member was entitled to rely on the evidence of Dr Huang, Dr Nicklin and Dr Negus to conclude that she was not satisfied that the appellant would be able to successfully participate in the rehabilitation process. That evidence was relatively contemporaneous to the consideration given as to the surgery being proposed. The Member also took into account the evidence of Dr Tetsworth that the appellant was physically deconditioned, elderly, obese and suffered from heart failure. She considered that those facts countered against the requirement that the appellant have a maximum level of fitness for the procedure to succeed. She further noted that Dr Tetsworth and A/Prof Al Muderis had described a successful outcome without having considered those impediments to the appellant’s ability to rehabilitate. ([132])
6. Wood DP found that the Member did not overlook or misunderstand the appellant’s evidence in respect of his ability to participate in rehabilitation or afford it too little weight. The Member took into account the appellant’s evidence and provided cogent reasons for rejecting it. The Member concluded that the evidence pointed to the appellant being unlikely to be able to make that investment, which was an integral part of the proposed treatment. The conclusion was available to her on the basis of the medical evidence. The appellant had not identified error on the part of the Member in the manner described and this ground of appeal failed. ([134]–[136])

Ground C

7. The appellant asserted that the Member erred in fact by failing to take into account that the appellant’s evidence was “cognisant of the appellant’s co-morbidities”. He asserted that the Member overlooked or placed too little weight on the evidence of A/Prof Al Muderis, Dr Ong (orthopaedic registrar of the Macquarie University Limb Reconstruction Centre) and Dr Tetsworth as to their appreciation of the appellant’s co-morbid conditions. The appellant submitted that the Member expected the appellant’s medical experts to address those conditions to a higher standard than was required and the experts’ opinions were sufficient. ([137])
8. The Member referred to and applied the matters for consideration in respect of her evaluation of whether the surgery was reasonably necessary, as set out in Rose v Health Commission (NSW) [1986] NSWCC 2 (Rose) and Diab v NRMA [2014] NSWWCCPD 72 (Diab). ([138])
9. Deputy President Wood noted that each case turns upon its own facts. The medical opinions accepted by the Member set out in detail the difficulties the appellant faced if he proceeded with the surgery. In the circumstances of this case, there were three medical experts who considered that the surgery was not appropriate for this candidate because it was highly unlikely to have an effective outcome and, on the basis of the appellant’s co-morbid conditions, posed a real risk to the appellant’s life. While the potential effectiveness of the proposed treatment is not always, of itself, a determinative factor, in this case it was most relevant in the context of the significant risks associated with the surgery for this particular individual. ([140])
10. The Deputy President concluded that the Member did not overlook any aspect of the appellant’s medical evidence or apply a more stringent test in rejecting the evidence of the appellant’s medical experts. In accordance with Shellharbour City Council v Rigby [2006] NSWCA 308, Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, and Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, the acceptance of evidence and the weight it is given are matters for the primary decision maker, unless it can be shown that the Member’s finding was so outweighed by the contrary evidence that it should be considered that her conclusion was wrong. In the circumstances of this case, it could not be said that the evidence in favour of the surgery was so preponderant that the Member’s conclusion must be wrong. The appellant had not disclosed error of the kind required in order to disturb the Member’s conclusion. It followed that Ground C of the appeal failed. ([122]–[124], [146]–[147])

(Diab applied)

Ground A

11. The appellant asserted that the Member erred in law by “misapplying the test of ‘reasonably necessary’.” The appellant said that the evidence showed that the proposed treatment was the only option for the appellant to walk again, there were no other treatment options, and the cost of the surgery was not in issue. The appellant said that the Member noted those factual matters. The appellant submitted that the Member rejected the appellant’s case on the basis that the surgery was not likely to succeed, which was erroneous. The appellant said that the Member placed greater emphasis on the “aftermath” of the surgery, rather than its potential effectiveness, and thus applied a more stringent test than was required. He submitted that all he was required to do was to establish that the treatment was reasonably necessary. ([148]–[149])
12. The appellant correctly pointed out that a poor outcome does not necessarily mean that the surgery was not reasonably necessary. The question of whether any particular treatment is reasonably necessary as a result of an injury must be assessed on a case by case basis, and, in line with the observations of Burke CCJ in Rose. The exercise described by Burke CCJ is an evaluative exercise, requiring the Member to consider whether the treatment should be afforded to the appellant, taking into account the potential effectiveness of the treatment. ([150]–[151])
13. The Deputy President observed that the intended purpose of the treatment was a necessary element to consider, which was to attempt to assist the appellant’s mobility and his ability to ambulate. The Member was cognisant of the fact that this was the expressed intention of the appellant’s treatment providers, however, that was not the end of the matters for consideration. The Member considered that it was not sufficient that the surgery was the appellant’s only option, and that that fact must be considered in the light of the likelihood as to whether the proposed surgery would succeed. There was nothing erroneous in the Member’s approach. Whether the proposed surgery would be likely to achieve that outcome, in the circumstances of this case, was a significantly relevant consideration. While there are risks associated with most surgeries, the risks to the appellant in this case, which included risk to his life and the very real risks of inhibiting the desired successful outcome, were substantial because of the nature of his co-morbidities. ([152])
14. Deputy President Wood held there was cogent evidence provided by Dr Huang, Dr Nicklin and Dr Negus that the treatment was not appropriate in the circumstances of this case and was unlikely to be effective. The Member preferred that evidence over the evidence relied upon by the appellant and gave valid reasons for doing so. The acceptance by medical experts of the treatment as being appropriate and likely to be effective is one of the matters required to be taken into account identified by Burke CCJ in Rose in assessing whether the treatment was reasonably necessary. ([153])
15. The appellant’s ability to survive the surgery, together with the real risks of complications arising and the potential for a deterioration of the appellant’s co-morbid conditions were all matters relevant to the consideration of the potential effectiveness of the treatment, which necessarily was dependent upon successful rehabilitation. ([154])
16. The Deputy President found that it could not be said that the Member erred by applying a more stringent test to her assessment of whether the treatment was reasonably necessary. The appellant had failed to identify any error of fact or law in the acceptance or rejection of the evidence or in arriving at her conclusions. It followed that Ground A of the appeal failed. ([155])