Asgari v iSpark Electrical & Solar Pty Ltd - [2021] NSWPIC 295

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Asgari v iSpark Electrical & Solar Pty Ltd [2021] NSWPIC 295
APPLICANT:	Vahid Asgari
RESPONDENT:	iSpark Electrical & Solar Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	18 August 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for costs of future cervical fusion surgery; injury accepted; whether surgery reasonably necessary as a result of workplace injury; requirement for applicant to demonstrate causal connection on a common-sense basis; Kooragang Cement Pty Ltd v Bates followed; applicant must demonstrate the surgery is reasonably necessary as a result of the work injury; Diab v NRMA Ltd and Bartolo v Western Sydney Area Health Service applied; Held- the surgery is reasonably necessary as a result of the work injury; respondent is to pay the costs of and incidental to the proposed surgery.
DETERMINATIONS MADE:	1. The applicant suffered an injury to his cervical spine in the course of his employment with the respondent on 19 September 2018. 2. As a result of the injury referred to in (1) above, the applicant requires cervical fusion surgery as recommended by Dr Singh, treating surgeon. 3. The surgery recommended by Dr Singh is reasonably necessary as a result of the workplace injury. 4. The respondent has to pay the cost of and incidental to the proposed cervical fusion surgery.

STATEMENT OF REASONS

BACKGROUND

On 19 September 2018, Mr Vahid Asgari (the applicant) was carrying out his duties in the course of employment with iSpark Electrical & Solar Pty Ltd (the respondent) as a solar installer when part of the roof he was working on gave way, causing him to fall through the ceiling, landing heavily and relevantly sustaining cervical spine injury.
The fact of the applicant suffering a cervical spine injury is not in issue. The applicant brings these proceedings seeking payment by the respondent for the costs of an incidental to a C5-C6 anterior cervical decompression and fusion as recommended by his treating surgeon, Dr Singh.
The respondent denies liability on the basis the proposed surgery is not reasonably necessary as a result of any workplace injury. In particular, the respondent alleges that the effects of the workplace injury on the cervical spine have passed, and the need for surgery, should there be any, does not arise as a result of that injury.

ISSUES FOR DETERMINATION

The parties agree that the only issue remaining for determination by the Commission is whether the proposed anterior cervical decompression and fusion is reasonably necessary.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 20 July 2021. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

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.

Keep reading for free

Create a free CaseChat account to read Asgari v iSpark Electrical & Solar Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWPIC 295
Decision Date: 18 August 2021

CaseChat Overview and Summary

In the case of Asgari v iSpark Electrical & Solar Pty Ltd, the applicant sought compensation for the costs of future cervical fusion surgery following a workplace injury. The dispute was heard in the Workers Compensation Court of New South Wales. The central issue was whether the proposed surgery was reasonably necessary as a result of the workplace injury, and if so, whether the applicant had demonstrated a causal connection on a common-sense basis.

The court was required to determine the extent to which the injury accepted by the respondent was causally linked to the necessity for the proposed surgery. It considered the principles established in prior cases such as Kooragang Cement Pty Ltd v Bates, Diab v NRMA Ltd, and Bartolo v Western Sydney Area Health Service. The applicant needed to show that the surgery was reasonably necessary as a direct result of the work injury. The court assessed the evidence provided and the arguments presented by both parties to determine the causal connection and necessity of the surgery.

The court found that the applicant had demonstrated a sufficient causal connection between the workplace injury and the necessity for the proposed cervical fusion surgery. It concluded that the surgery was reasonably necessary as a result of the work injury. Consequently, the respondent was ordered to pay the costs of and incidental to the proposed surgery. The decision underscores the importance of a clear demonstration of the causal link between the injury and the need for medical intervention in workers compensation claims.

Orders