Bond v Blacktown Area Community Centres Inc - [2024] NSWPICPD 57

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Bond v Blacktown Area Community Centres Inc [2024] NSWPICPD 57
APPELLANT:	Doreen Bond
RESPONDENT:	Blacktown Area Community Centres Inc
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-W3488/23
PRESIDENTIAL MEMBER:	Acting Deputy President Kylie Nomchong SC
DATE OF APPEAL DECISION:	9 September 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 4 August 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – section 60 of the Workers Compensation Act 1987 – claimed cost of surgery to left shoulder – contemporaneity of complaint of injury to left shoulder in the context of other body parts injured in the same incident – challenge to Member’s findings in the reasons with respect to the medical evidence of the worker’s treating orthopaedic specialist – Iqbal v Hotel Operation Solutions Pty Ltd [2022] NSWCA 138, Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, and Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Horan, counsel
Turner Freeman Lawyers
Respondent:
Mr R Slocombe, solicitor
Hall & Wilcox
DECISION UNDER APPEAL:	Bond v Blacktown Area Community Centres Inc [2023] NSWPIC 390
MEMBER:	Mr P Sweeney
DATE OF MEMBER’S DECISION:	4 August 2023

INTRODUCTION

The appellant (Ms Bond) was employed by the respondent (Blacktown Area Community Centre Inc) when, on 16 May 2016, she tripped and fell, suffering multiple injuries. The appellant underwent a number of surgeries, and other treatment, in respect of the injuries she sustained in that fall between 2017 and 2019. Liability was accepted for those surgeries.
In December 2022, the appellant made a claim for the cost of a left rotator cuff repair and excision of the outer end of the left clavicle (Proposed Surgery), which had been recommended by her treating orthopaedic surgeon, Dr Michael Stening.
On 20 December 2022 the respondent disputed the claim. Further to an application to review that decision, the respondent concluded, amongst other things, that the need for the Proposed Surgery did not result from the injury sustained on 16 May 2016.
The appellant commenced proceedings in this Commission seeking an order that the respondent pay for the cost of the Proposed Surgery pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The matter was heard before the Member on 13 July 2023. On 4 August 2023, the Member determined that there would be an award for the respondent and handed down his Statement of Reasons.
The appellant has appealed that determination on two grounds:
(a) Ground One: The Member erred with regard to his summation findings in paragraph [53] of the Statement of Reasons of the medical evidence of the worker’s treating orthopaedic specialist, Dr Michael Stening.
(b) Ground Two: The Member erred with respect to the causal test in s 60 of the 1987 Act.

ON THE PAPERS

I have read the material in this matter including the material…

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.

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Details

Case: [2024] NSWPICPD 57
Decision Date: 9 September 2024

CaseChat Overview and Summary

The case involved Bond, the applicant, against Blacktown Area Community Centres Inc, the respondent. The dispute was centered around a workers' compensation claim related to the cost of surgery for Bond's left shoulder, which was injured during an incident. The court was tasked with assessing the legitimacy of the claimed costs and the timing of the complaint regarding the injury. This case was heard and determined in the New South Wales Civil and Administrative Tribunal.

The central legal issues that the court had to address were whether the complaint regarding the injury to Bond's left shoulder was contemporaneous with the incident and whether the Member's interpretation of the medical evidence provided by Bond's orthopaedic specialist was correct. The court had to consider the relevant statutory provisions, specifically section 60 of the Workers Compensation Act 1987, as well as the case law cited by the parties.

In delivering its decision, the tribunal carefully examined the medical evidence presented by Bond's orthopaedic specialist, taking into account the cases of Iqbal v Hotel Operation Solutions Pty Ltd, Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd, and Raulston v Toll Pty Ltd. The tribunal found that the Member's findings regarding the contemporaneous nature of the complaint and the interpretation of the medical evidence were sound and based on a proper consideration of the evidence. Consequently, the tribunal upheld the Member's decision.

As a result of the tribunal's decision, the applicant's claim for the cost of surgery to his left shoulder was dismissed. The tribunal's decision was based on the finding that the complaint regarding the injury was not contemporaneous with the incident, and the interpretation of the medical evidence was correctly assessed by the Member.

Orders