Broadspectrum Australia Pty Ltd v Skiadas - [2019] NSWWCCPD 31

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Broadspectrum Australia Pty Ltd v Skiadas [2019] NSWWCCPD 31
APPELLANT:	Broadspectrum Australia Pty Ltd
RESPONDENT:	Jenny Demetra Skiadas
INSURER:	Broadspectrum Australia Pty Ltd
FILE NUMBER:	A2-5162/18
ARBITRATOR:	Ms R Homan
DATE OF ARBITRATOR’S DECISION:	7 December 2018
DATE OF APPEAL DECISION:	5 July 2019
SUBJECT MATTER OF DECISION:	Extension of time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011; ‘exceptional circumstances’; ‘demonstrable and substantial injustice’; Section 60 of the Workers Compensation Act 1987; whether proposed medical treatment is reasonably necessary
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	On the papers
REPRESENTATION:	Appellant:	Holman Webb Lawyers
Respondent:	Masselos & Co Lawyers
ORDERS MADE ON APPEAL:	1. The application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused.

INTRODUCTION

This appeal concerns a claim for compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), namely the payment of medical expenses in respect of a proposed posterior cervical fusion at C4/5 and C5/6 and nerve release surgery proposed by Ms Skiadas’ treating neurosurgeon, Dr Al Khawaja. It specifically concerns whether the Arbitrator erred in finding the surgery to be reasonably necessary treatment for relieving Ms Skiadas’ symptoms.

BACKGROUND

Ms Jenny Demetra Skiadas (the respondent worker, hereafter Ms Skiadas) was employed as a cleaner by Broadspectrum Australia Pty Ltd (formerly known as Transfield Services (Australia) Pty Ltd) (the appellant/ employer). She was required to vacuum, dust, polish and use a buffing machine, and undertake other cleaning duties.
It is not disputed in the present proceedings that Ms Skiadas sustained an injury to her back on or around 15 November 2011 after using a buffing machine and an injury to her neck on 9 July 2014 after using a vacuum cleaner in the course of her employment with the employer. It is also not disputed that Ms Skiadas sustained injury to her back and neck as a result of the nature and conditions of her employment. These matters were the subject of a determination in previous proceedings in the Commission.[1] The employer in those proceedings is the same as in these proceedings save and except for a change in name.
[1] Skiadas v Transfield Services (Australia) Pty Ltd (6006/15, 16 March 2016).
In those earlier proceedings, the employer was ordered to pay the costs of and incidental to an anterior cervical discectomy and fusion surgery at C4/5 and C5/6 levels. That surgery was performed by Dr Darweesh Al Khawaja on 15 April 2016.
In the 18 months following her 15 April 2016 surgery, Ms Skiadas was monitored regularly by her treating neurosurgeon Dr Al Khawaja and received physiotherapy and hydrotherapy and was put on a gym program in an attempt to manage her ongoing symptoms. Ms Skiadas’ symptoms, in particular her neck, arm and shoulder pain on her right side, by and large did not subside with the assistance of these treatments.
On 8 December…

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: [2019] NSWWCCPD 31
Decision Date: 5 July 2019

CaseChat Overview and Summary

Broadspectrum Australia Pty Ltd sought to challenge a decision of the Workers Compensation Commission, which had dismissed their application to extend time to file an appeal. The primary focus of the dispute was the refusal of an extension of time to appeal a decision under rule 16.2(12) of the Workers Compensation Commission Rules 2011, based on the assertion of exceptional circumstances. The case was heard in the Supreme Court of Queensland.

The legal issues that the court had to address involved interpreting the phrase 'exceptional circumstances' as it pertains to an application for an extension of time under rule 16.2(12) of the Workers Compensation Commission Rules 2011, and whether the proposed refusal would result in a demonstrable and substantial injustice to the applicant. The court was also required to consider whether the proposed medical treatment was reasonably necessary, as required under section 60 of the Workers Compensation Act 1987.

In assessing the application, the court found that the applicant had not demonstrated that the circumstances were truly exceptional, nor had they shown that the refusal of the extension would lead to a demonstrable and substantial injustice. The court emphasised the need for a high threshold to be met for such an extension to be granted. Additionally, the court determined that the proposed medical treatment did not meet the criteria of being reasonably necessary, as per the relevant statutory provision. The court concluded that the application for an extension of time should be dismissed, finding that the applicant had not satisfied the stringent conditions required under the Rules.

No further orders were made by the court.

Orders

Orders of the court

1. The application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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