Budden v DFB Trading Pty Ltd - [2022] NSWPIC 514

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Budden v DFB Trading Pty Ltd [2022] NSWPIC 514
APPLICANT:	Janine Budden
RESPONDENT:	DFB Trading Pty Limited
Member:	Gaius Whiffin
DATE OF DECISION:	16 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for injury to back; claim for treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) (future L2/3 posterior interbody fusion); consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the surgery is reasonably necessary medical treatment as a result of the injury to the applicant’s back on 7 December 2004 during her employment with the respondent; Guthrie v Spence, Rose v Health Commission(NSW), Diab v NRMA Limited, Murphy v Allity Management Services Pty Limited considered; Held – the surgery proposed for the applicant (L2/3 posterior interbody fusion) is reasonably necessary medical treatment as a result of an injury to the applicant's back which was contracted by her in the course of her employment with the respondent; deemed date of 7 December 2004; award that the respondent pay the applicant’s future section 60 of the 1987 Act expenses in relation to the proposed surgery.
determinations made:	1. Pursuant to s 162 of the Workers Compensation Act 1987 (the 1987 Act), a declaration is made that DFB Trading Pty Limited entered into a contract with an insurer (the Workers Compensation Nominal Insurer – AAI Limited t/as GIO) in respect of its liability under the 1987 Act to the applicant, and that DFB Trading Pty Ltd has ceased to exist. 2. The surgery proposed for the applicant by Dr Spittaler (L2/3 posterior interbody fusion) as referred to in his 4 June 2020 report, is reasonably necessary medical treatment as a result of an injury to the applicant's back which was contracted by her in the course of her employment with the respondent – deemed date of 7 December 2004.
orders made:	1. The Application to Resolve a Dispute is amended with the consent of the respondent, as follows: (a) the name of the respondent is changed to Workers Compensation Nominal Insurer, and (b) the date of the injury pleaded on page 8 of the application is changed to a deemed date of 7 December 2004. 2. The respondent is to pay for the costs of and incidental to the surgery (L2/3 posterior interbody fusion) proposed for the applicant by Dr Spittaler in his 4 June 2020 report, pursuant to s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Janine Budden (the applicant) is 60-years-old. She was employed by DFB Trading Pty Limited (the respondent) from April 2003 until her employment was terminated in early 2006. Her employment duties involved packing and transporting crates of pies.
She injured her back whilst performing these employment duties. The respondent has accepted liability for the back injury, and has made various workers compensation payments to her over the years, including a lump sum payment pursuant to s 66 of the Workers…

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.

Continue reading Budden v DFB Trading Pty Ltd

Details

AGLC: Budden v DFB Trading Pty Ltd [2022] NSWPIC 514
Case: [2022] NSWPIC 514
Decision Date: 16 September 2022

CaseChat Overview and Summary

The applicant in this matter, Budden, brought a claim against the respondent, DFB Trading Pty Ltd, for injuries sustained to her back during her employment with the respondent. The claim specifically sought compensation for treatment expenses pursuant to section 60 of the Workers Compensation Act 1987, relating to a proposed L2/3 posterior interbody fusion surgery. The dispute was heard and determined by the relevant workers' compensation tribunal.

The central legal issues the court needed to address were whether the proposed surgery was reasonably necessary medical treatment resulting from the injury sustained by the applicant on 7 December 2004, and whether the respondent should be liable for the associated future treatment expenses under section 60 of the 1987 Act. The court needed to examine the applicant's statements, medical reports, treatment records, correspondence, and other factual material to determine the necessity of the surgery and the causal link between the injury and the required medical treatment.

In its decision, the tribunal considered various authorities, including Guthrie v Spence, Rose v Health Commission (NSW), Diab v NRMA Limited, and Murphy v Allity Management Services Pty Limited, to assess the necessity of the proposed surgery. After thorough consideration of the evidence, the tribunal concluded that the L2/3 posterior interbody fusion surgery was reasonably necessary medical treatment as a result of the injury to the applicant's back, which occurred during her employment with the respondent. The tribunal found the deemed date of injury to be 7 December 2004 and awarded the applicant's future treatment expenses in relation to the proposed surgery, mandating the respondent to pay these expenses under section 60 of the 1987 Act.

Orders