Abraham v St Gabriel's School - [2025] NSWPIC 397

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Abraham v St Gabriel's School [2025] NSWPIC 397
APPLICANT:	Susan Abraham
RESPONDENT:	St Gabriel's School
MEMBER:	Cameron Burge
DATE OF DECISION:	12 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; medical expenses; claim for costs of and incidental to medically necessary neck surgery; whether the applicant suffered a cervical spine injury in an accepted injurious event; whether the injury gave rise to the need for surgery; Held – applicant has the onus of proving on a commonsense basis that she suffered a neck injury; Kooragang Cement Pty Ltd v Bates applied; caution must be taken in relying on the absence of the recording of neck issues by the applicant’s treating practitioners for several weeks as evidence sufficient to obviate her evidence of alleged post-injury symptoms; Mason v Demasi and Anor; no need for corroboration for an applicant in a civil case to establish the presence of an injury; Baker v Southern Metropolitan Cemeteries Trust followed; applicant suffered a cervical spine injury in the nature of an aggravation to underlying but previously asymptomatic pathology; applicant’s neck injury has made a material contribution to the requirement for her surgery; the proposed surgery is reasonably necessary as a result of the applicant’s injury; respondent is to pay the costs of and incidental to the surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to her cervical spine in the course of her employment with the respondent on 27 May 2021. 2. The proposed C5/C6 anterior cervical decompression and fusion proposed by Dr Kanawati is reasonably necessary as a result of the applicant’s injury. 3. The respondent is to pay the costs of and incidental to the proposed surgery. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

On 27 May 2021, Susan Abraham (the applicant) was injured in the course of her employment as a learning support officer with the respondent, St Gabriel’s School, when a student ran towards her and she instinctively put out her arm, which the student struck, causing an accepted injury to the right shoulder.
Additionally, the applicant claims she suffered injury to her cervical spine, which is disputed by the respondent. The applicant seeks payment by the respondent for the costs of and incidental to a proposed C5/C6 cervical anterior discectomy and fusion proposed by her treating surgeon, Dr Kanawati.
There is no issue the proposed surgery is reasonably necessary. However, the respondent disputes whether the need for the surgery arises as a result of a work injury, as it alleges the applicant did not suffer a neck injury in the incident at issue.

ISSUES FOR DETERMINATION

The only issue for determination is whether the applicant suffered a cervical spine injury which has brought about the need for the proposed surgery.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications…

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.

Continue reading Abraham v St Gabriel's School

Details

AGLC: Abraham v St Gabriel's School [2025] NSWPIC 397
Case: [2025] NSWPIC 397
Decision Date: 12 August 2025

CaseChat Overview and Summary

In the case of Abraham v St Gabriel's School, the applicant, Ms Abraham, sought reimbursement for the costs of and incidental to medically necessary neck surgery from the respondent, St Gabriel's School. The dispute arose from an incident at work where Ms Abraham claimed to have suffered a cervical spine injury, which subsequently necessitated surgery. The matter was brought before the Workers Compensation Court of New South Wales, which was tasked with determining the validity of Ms Abraham's claim.

The central legal issues before the court were whether Ms Abraham indeed suffered a cervical spine injury during the accepted injurious event and whether this injury necessitated the surgery in question. The court was required to assess the credibility of Ms Abraham's evidence regarding her injury and symptoms, juxtaposed against the absence of neck issues recorded by her treating practitioners for several weeks following the incident. The court also needed to consider the applicable principles concerning the onus of proof in workers compensation claims and the necessity of corroboration.

The court held that Ms Abraham bore the onus of proving on a commonsense basis that she suffered a neck injury during the injurious event. It applied the principles from Kooragang Cement Pty Ltd v Bates, cautioning against the reliance on the absence of neck issues recorded by practitioners as evidence negating Ms Abraham's post-injury symptoms. The court further noted that no corroboration was necessary for Ms Abraham to establish the presence of an injury, following the precedent in Mason v Demasi and Anor. It was found that Ms Abraham suffered a cervical spine injury, which aggravated previously asymptomatic pathology, materially contributing to the need for surgery. Consequently, the proposed surgery was deemed reasonably necessary as a result of Ms Abraham's injury, and the court ordered that the respondent pay the costs of and incidental to the surgery.

In conclusion, the court found in favour of Ms Abraham and ruled that St Gabriel's School is to cover the costs of and incidental to the medically necessary neck surgery. The decision underscores the importance of assessing the applicant's evidence on a commonsense basis and recognising the absence of recorded symptoms does not negate the presence of an injury in workers compensation claims.

Orders