Amos v Bretlife Pty Ltd - [2024] NSWPIC 9

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Amos v Bretlife Pty Ltd [2024] NSWPIC 9
APPLICANT:	Warren Amos
RESPONDENT:	Bretlife Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	9 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 4 and 60; injury to the left shoulder; injury not disputed; dispute as to whether proposed left total shoulder replacement including any associated rotator repair surgery is reasonably necessary as a result of the work related injuries; Kooragang Cement Pty Ltd v Bates, Rose v Health Commission (NSW), Diab v NRMA Limited, Murphy v Allity Management Services Pty Ltd considered and applied; Held – that pursuant to section 60 the left total shoulder replacement surgery, including any associated left rotator cuff repair proposed by Dr Tack Shin Lee, is as a result of an injury received by the applicant and is reasonably necessary.
DETERMINATIONS MADE:	The Commission determines: 1. That pursuant to s 60 of the 1987 Act the left total shoulder replacement surgery including any associated left rotator cuff repair proposed by Dr Tack Shin Lee is as a result of an injury received by the applicant reasonably necessary. The Commission orders: 2. The respondent to pay the costs of and associated with the left total shoulder replacement surgery including any associated rotator cuff repair proposed by Dr Tack Shin Lee.

STATEMENT OF REASONS

BACKGROUND

Warren Amos, the applicant, who is currently 79 years of age was at all relevant times employed by Bretlife Pty Ltd, the respondent, as a truck driver.

The applicant alleges that he suffered injury to both his shoulders on the deemed date of 30 August 2017 due to the nature and conditions of his employment with the respondent which involved repetitive heavy work. The applicant also alleges that in October 2017 he suffered a further aggravation of the condition when whilst unloading sawdust with the assistance of a colleague they ran into each other.
The respondent does not dispute that the applicant sustained injury as alleged.
The applicant seeks pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) the costs of and incidental to total left shoulder replacement arthroplasty surgery including any associated rotator cuff repair.
The only issue in dispute is whether pursuant to s 60 of the 1987 Act the proposed surgery is reasonably necessary as a result of the alleged injury.

ISSUES FOR DETERMINATION

The following issue remains in dispute:
(a) whether pursuant to s 60 of the 1987 Act the proposed total left shoulder replacement arthroplasty surgery including any associated rotator cuff repair is reasonably necessary as a result of the alleged injury

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 5 December 2023. Mr Bruce McManamey, counsel, instructed by Ms Basema Elmasri, appeared for the applicant, who was present. Mr John Gaitanis, counsel, appeared for the respondent, instructed by Ms Jaclyn Ferry. The proceedings were conducted by audio visual link. I am satisfied…

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 Amos v Bretlife Pty Ltd

Details

AGLC: Amos v Bretlife Pty Ltd [2024] NSWPIC 9
Case: [2024] NSWPIC 9
Decision Date: 9 January 2024

CaseChat Overview and Summary

Amos filed an action against Bretlife Pty Ltd in the Workers Compensation Court of New South Wales, seeking compensation for a left shoulder injury sustained during employment. The parties did not dispute that the injury occurred during the course of employment; rather, the dispute centred on whether the proposed left total shoulder replacement surgery, including associated rotator cuff repair, was reasonably necessary as a result of the work-related injuries. The applicant argued that the surgery was necessary, while the respondent contended it was not.

The court had to determine whether the proposed surgical procedure was reasonably necessary in accordance with section 60 of the Workers Compensation Act 1987. The court considered several precedents, including Kooragang Cement Pty Ltd v Bates, Rose v Health Commission (NSW), Diab v NRMA Limited, and Murphy v Allity Management Services Pty Ltd. These cases provided guidance on what constituted reasonable necessity in the context of workers' compensation claims. The court assessed the medical evidence presented by both parties and evaluated the necessity of the proposed surgery based on the applicant’s condition and the likelihood of the surgery improving his functional capacity.

The court held that the proposed left total shoulder replacement surgery, including any associated left rotator cuff repair, was reasonably necessary as a result of the injury received by the applicant. This conclusion was based on the medical evidence and the precedents cited. The court found that the surgery would significantly improve the applicant’s functional capacity and quality of life, aligning with the statutory requirement of reasonableness under section 60 of the Workers Compensation Act 1987.

The court ordered Bretlife Pty Ltd to cover the costs of the proposed left total shoulder replacement surgery, including any associated left rotator cuff repair, as well as any other related medical expenses. This decision ensured that the applicant received the necessary medical treatment to address the work-related injury, in line with the principles of the Workers Compensation Act.

Orders