Broadbent v Superior Food Group Pty Ltd - [2022] NSWPIC 571

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Broadbent v Superior Food Group Pty Ltd [2022] NSWPIC 571
APPLICANT:	Guy Winston Broadbent
RESPONDENT:	Superior Food Group Pty Ltd
Member:	Rachel Homan
DATE OF DECISION:	14 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for section 60 of the Workers Compensation Act 1987 compensation for the costs of and incidental to L54/S1 discectomy and neurolysis; accepted left knee injury following fall from a truck; whether injury to lower back in the injurious event or consequential lower back condition resulting from injury; pre-existing conditions in the knees, hip and back; Held – applicant failed to discharge onus of establishing injury to the lower back; evidence of altered gait following surgeries to left knee as a result of injury; applicant’s treating and medicolegal evidence accepted; left knee injury materially contributed to the back condition and need for surgery; proposed surgery reasonably necessary as a result of the injury; award in favour of the applicant.
DETERMINATIONS MADE:	1. The L5/S1 discectomy and neurolysis recommended by Dr Andrew Cree in his reports dated 20 May 2022 is reasonably necessary as a result of the injury on 21 May 2021.
ORDERS made:	2. Pursuant to s 60 of the Workers Compensation Act 1987, the respondent to pay the costs of and incidental to the L5/S1 discectomy and neurolysis recommended by Dr Cree.

STATEMENT OF REASONS

BACKGROUND

Mr Guy Winston Broadbent (the applicant) was employed by Superior Food Group Pty Ltd (the respondent) as a truck driver. On 21 May 2021, the applicant sustained an injury when he slipped and fell off the back of his truck.
Liability for an injury to the applicant’s left knee in that event was accepted on 29 July 2021.
On 20 May 2022, orthopaedic spinal surgeon, Dr Andrew Cree, recommended that the applicant undergo a L5/S1 discectomy and neurolysis and sought approval for the procedure from the respondent’s insurer.
Liability for the surgery was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 20 June 2022.
That decision was maintained following internal review in a notice issued on 12 July 2022.
A further notice, disputing liability for the proposed surgery and any consequential lower back condition was issued on 13 July 2022.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 15 July 2022. The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and ancillary to the procedure recommended by Dr Cree.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 20 September 2022 via Microsoft Teams. The applicant was represented by Mr Stuart Moffett of counsel, instructed by Mr Steve Walker and Mr Ivica Covic. The respondent was represented by Mr Stephen Hickey of counsel, instructed by Ms Joanna Turnbull. A representative from the insurer was also present.

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 Broadbent v Superior Food Group 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: [2022] NSWPIC 571
Decision Date: 14 October 2022

CaseChat Overview and Summary

The case of Broadbent v Superior Food Group Pty Ltd involved a claim for compensation under section 60 of the Workers Compensation Act 1987. The applicant, Broadbent, sought compensation for the costs associated with a discectomy and neurolysis at the L5/S1 level. Broadbent alleged that his left knee injury, which occurred after a fall from a truck, led to a lower back injury. The nature of the dispute was whether the lower back injury was a direct result of the injurious event or a subsequent condition arising from the knee injury. The matter was heard in the Workers Compensation Court of Queensland.

The legal issues the court needed to resolve included determining the causal link between the knee injury and the lower back condition, the relevance of pre-existing conditions in the knees, hip, and back, and whether the proposed surgery was reasonably necessary as a consequence of the knee injury. The court had to weigh the medical evidence, including the treating and medicolegal opinions, to establish the factual sequence of events and the medical necessity of the surgery.

In its reasoning, the court found that while Broadbent's knee injury materially contributed to his lower back condition and the need for surgery, he had not discharged the onus of proving that the lower back injury was a direct result of the injurious event. The court accepted the evidence that Broadbent's altered gait following surgeries to his left knee was a consequence of the injury. However, it was concluded that the lower back condition was a consequential condition rather than a direct injury from the fall. Despite this, the court determined that the surgery was reasonably necessary due to the knee injury and awarded compensation to Broadbent.

The court ordered that the applicant be compensated for the costs of the surgery, finding that the proposed surgery was reasonably necessary as a result of the knee injury.

Orders