Bond v Blacktown Area Community Centres Inc - [2023] NSWPIC 390

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Bond v Blacktown Area Community Centres Inc. [2023] NSWPIC 390
APPLICANT:	Doreen Bond
RESPONDENT:	Blacktown Area Community Centres Inc
Member:	Paul Sweeney
DATE OF DECISION:	4 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Worker claims cost of proposed left shoulder surgery pursuant to section 60; employer denies injury and causal nexus between injury and need for surgery; Commission accepts that the contemporaneous evidence establishes injury; absence of signs on clinical examination and absence of complaint over a period of five years inconsistent with causal nexus.; Held – need for surgery does not result from proven injury.
determinations made:	The Commission determines: 1. Award for the respondent

STATEMENT OF REASONS

BACKGROUND

Doreen Bond (the applicant) sustained serious injuries when she tripped and fell on a concrete path on 16 May 2016. As a result of these injuries she has undergone several surgical procedures including a right rotator cuff repair under Dr Gothelf in 2017, a lumbar fusion at L3 to S1 under Dr Matthew Tait in 2019, and a left total hip replacement under Dr Simon Coffey in 2021. The applicant has not worked since April 2019.
The severity of the applicant’s injuries is emphasised by a Medical Assessment Certificate dated 29 September 2022 by which a medical assessor certified that she suffered 50% whole person impairment as a result of the injuries sustained on 16 May 2016.
On 14 November 2022, the applicant came under the care of Dr Michael Stening, an orthopaedic surgeon. On 5 December 2022, Dr Stening recommended that she undergo a left rotator cuff repair and excision of the outer end of her left clavicle. The applicant sought approval for the cost of the proposed surgery from the worker’s compensation insurer of the Blacktown Area Community Centres Inc. (the respondent), GIO.
On 20 December 2022, the GIO issued a s 78 Notice by which it disputed that the applicant suffered left shoulder injury either on 16 May 2016 or a consequence of her accepted injuries. It also stated:
“We do not believe that the claimed medical or related treatment is reasonably necessary as a result of an injury as required by s 60 of the Workers Compensation Act 1987.”
By a review notice dated 20 April 2023, the respondent’s insurer canvassed some aspects of the evidence in the case. It again concluded that the applicant had not suffered injury to her left shoulder at the time of, or as a consequence of, the injury on 16 May 2016. Alternatively, it stated the need for surgery did not result from an injury sustained at that time.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

By these proceedings, the applicant claims an order that the respondent pay the cost of the left shoulder surgery proposed by Dr Stening pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
When the matter came on for a conciliation conference and an arbitration hearing in the Personal Injury Commission (Commission) on 17 May 2023, Mr…

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: [2023] NSWPIC 390
Decision Date: 4 August 2023

CaseChat Overview and Summary

In the case of Bond v Blacktown Area Community Centres Inc, the applicant sought compensation for the cost of proposed left shoulder surgery under section 60. The employer contested the injury and the causal nexus between the injury and the necessity for surgery. The matter was heard by the Commission, which found that the contemporaneous evidence did substantiate the injury. However, the Commission observed that the absence of signs on clinical examination and the absence of any complaint over a period of five years were inconsistent with a causal nexus between the injury and the need for surgery. The Commission concluded that the proposed surgery did not stem from the proven injury.

The legal issues before the Commission involved whether the applicant's injury was work-related and whether there was a causal connection between the injury and the need for surgery. The Commission had to determine if the applicant's claim for the cost of surgery was justified under section 60, given the absence of clinical signs and the five-year gap between the injury and the proposed surgery. The employer argued that the absence of clinical signs and the extended period without complaint undermined the causal connection between the injury and the proposed surgery.

The Commission held that the applicant had indeed sustained a work-related injury, as evidenced by the contemporaneous evidence. However, it found that the absence of clinical signs and the five-year gap between the injury and the proposed surgery were inconsistent with the causal nexus required for compensation under section 60. The Commission concluded that the proposed surgery was not a consequence of the proven injury. Therefore, the applicant's claim for the cost of surgery was dismissed.

Orders