Bonica v Piacentini & Son Pty Ltd

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:

 Bonica v Piacentini & Son Pty Ltd [2019] NSWWCCPD 4
APPELLANT: Joseph Robert Bonica
RESPONDENT: Piacentini & Son Pty Ltd
INSURER: AAI Ltd t/as GIO
FILE NUMBER: A1-2877/18
ARBITRATOR: Mr W Dalley
DATE OF ARBITRATOR’S DECISION: 31 August 2018
DATE OF APPEAL HEARING: 5 February 2019
DATE OF APPEAL DECISION: 15 February 2019
SUBJECT MATTER OF DECISION: Alleged factual error – application of Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 and associated authorities; notices pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Deputy President Michael Snell
HEARING: Oral
REPRESENTATION: Appellant: Mr S Grant, instructed by J.N. Zigouras & Co
Respondent: Ms N Compton, instructed by Hicksons
ORDERS MADE ON APPEAL:

1.    The Arbitrator’s decision dated 31 August 2018 is confirmed.

INTRODUCTION AND BACKGROUND

  1. Joseph Bonica (the appellant) claims in respect of an injury on 14 November 2005, when a ‘scraper’ he was operating at a mine dropped suddenly, throwing him around the cabin and injuring his head, neck and left shoulder. He was in the employ of Piacentini & Son Pty Ltd (the respondent) at the time. The respondent’s insurer accepted liability for the claim when one was made, in 2011.[1] The appellant came under the care of Dr Kossmann, an orthopaedic surgeon, in April 2012. On 8 January 2015, Dr Kossmann wrote to the insurer seeking approval for the cost of surgery, involving “mini arthrotomy, removal of his bursa and decompression of his left shoulder joint”.[2] The insurer issued a s 74 notice dated 24 March 2015, declining liability for the cost of this surgery. The denial was based on s 59A(1) of the Workers Compensation Act 1987 (the 1987 Act).[3] The appellant later came under the care of Dr Pak, an orthopaedic surgeon. Dr Pak, on 27 October 2016, sought approval from the insurer to carry out surgery involving “left shoulder scope, subdeltoid bursectomy, acromioplasty, lateral clavicle excision and a labral debridement and repair if required”.[4]

    [1] Application to Resolve a Dispute (ARD), pp 52–53.

    [2] ARD, p 26.

    [3] ARD, pp 47–49.

    [4]ARD, pp 7–8.

  2. The insurer issued a further s 74 notice dated 16 February 2017. The notice referred to a report (involving a file review) by Dr Doig dated 30 January 2017.[5] The reasons for denial included that the appellant did “not have a left shoulder condition resulting from” the employment injury, and that the treatment was “not reasonably necessary as a ‘result of an injury’”.[6]

THE ARBITRAL PROCEEDINGS AND DECISION

[5]ARD, pp 11–16.

[6]ARD, pp 44–46.

  1. The proceedings were commenced by the ARD registered on 5 June 2018. The ARD sought expenses pursuant to s 60 of the 1987 Act, including the proposed surgery. The matter was listed for arbitration hearing on 14 August 2018. The appellant was represented by Mr Grant and the respondent by Ms Compton. There were no applications to adduce oral evidence or to…

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Details
Case
[2019] NSWWCCPD 4
Decision Date

CaseChat Overview and Summary

Bonica v Piacentini & Son Pty Ltd concerns the claimant’s challenge to the decision of a Workers Compensation Insurer, GIO, to cease payment of compensation benefits for a left shoulder condition. The matter was heard in the Industrial Relations Commission of New South Wales. The central legal issues in this case involved the interpretation and application of sections 33 and 60 of the Workers Compensation Act 1987 and whether the tribunal could intervene in the decision-making process of the insurer under s 74 of the Workplace Injury Management and Workers Compensation Act 1998.

The court examined whether the insurer, GIO, had correctly applied the statutory criteria when it declined liability for ongoing compensation. The claimant argued that the tribunal should set aside the insurer's decision, asserting that it was incorrect and that the tribunal had a duty to review the decision under s 74. The court was required to determine whether the tribunal had erred in law when it confirmed the insurer's decision. The claimant also questioned the accuracy of the factual findings underpinning the insurer's decision.

In its reasoning, the court noted that the tribunal had thoroughly examined the evidence and applied the correct legal principles in confirming the insurer's decision. The court held that the tribunal was not required to substitute its factual findings for those of the insurer unless there was a clear error in the application of the statutory provisions. The court found that the tribunal had correctly applied the principles established in Whiteley Muir & Zwanenberg Ltd v Kerr and associated authorities, and that there was no basis for the tribunal to intervene in the decision of the insurer. The court concluded that the tribunal had not erred in law in confirming the insurer's decision.

The final orders of the court were to confirm the decision of the arbitrator dated 31 August 2018, which upheld the insurer's decision to decline liability for ongoing compensation for the claimant’s left shoulder condition.

Orders

Orders of the court

1. The Arbitrator’s decision dated 31 August 2018 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The s 74 notice at issue is that dated 16 February 2017. That notice described the decision:“GIO DecisionA decision has been made by GIO to decline liability for ongoing payment of compensation for the left shoulder condition.This decision means that GIO will not pay any weekly workers compensation benefits claimed to be payable due to the left shoulder condition noting that you do not have a ‘total or partial incapacity for work (that) results from an injury’ – as required by Section 33 of the Workers Compensation Act 1987 (the Act).This decision means that GIO will not pay for any further medical treatment for the left shoulder condition.This is because Section 60 of the Act states that treatment is available ‘If, as a result of an injury received by a worker, it is reasonably necessary’ that treatment is provided.The result of this decision is that GIO will not fund the cost of the surgery on your left shoulder as proposed by Dr Pak.GIO will not pay any lump sum compensation for permanent impairment claimed to be due to the left shoulder condition. – section 66 of the Act refers [sic]Legislation Used in Making the DecisionThe decision to decline liability is an application of Section 33 and Section 60 of The Workers Compensation Act 1987 (the Act) reproduced as follows:[ss 33 and 60(1) of the 1987 Act were there reproduced.]Reasons for the decision:GIO have made this decision based on the report of Dr Doig dated 30 January 2017.The report of Dr Doig dated 30 January 2017 contains the following:‘The current condition appears now to have changed in that the MRI scan on 28 September 2015 has revealed an old Hill-Sachs’ lesion with an extensive anterio-inferior labral tear with paralabral cyst formation and mild clavicle osteolysis. This pathology has obviously developed between the initial incident of 14 November 2005 and the current presentation and is certainly not related.’‘In my opinion, therefore, employment is not a substantial contributing factor to the current condition and clinical presentation for the above reasons.’‘Mr Bonica is still suffering from a left shoulder condition, based on the MRI scan of September 2016. This is not related to the work incident of 14 November 2005.’ ‘No further investigations or treatment are required with respect to the incident of 14 November 2005.’Accordingly, GIO have made the decision that you do not have a left shoulder condition resulting from your employment with PIACENTINI & SON PTY LTD that has caused ‘total or partial incapacity for work results from an injury [sic]’ see section 33 of the Act as quoted earlier in this letter.Further GIO have made the decision that you do not have a left shoulder condition resulting from your employment with PIACENTINI & SON PTY LTD and compensation for cost of medical or hospital treatment or rehabilitation is not reasonably necessary as a ‘result of an injury’, see section 60 of the Act as quoted earlier in this letter.The documents GIO will rely on to support this decision are as follows and included with this letter:·Report of Dr Doig dated 30 January 2017.The following are the reports and documents we have received from you in relation to your claim:·Report of Dr Kossman[n] dated 4 February 2014.·Report of Dr Pak dated 27 October 2016·MRI Reports 28 September 2016 and 1 November 2013.”[81][81] ARD, pp 44–45.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.