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Bui v HyView Fabrications Pty Ltd

Bui v HyView Fabrications Pty Ltd

Case [2023] NSWPICPD 49 16 August 2023

Reasonably Necessary Medical Expense

Expert Evidence

Judicial Review

Appeal

Revocation and Redetermination

Workers Compensation Law

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Bui v HyView Fabrications Pty Ltd [2023] NSWPICPD 49
APPELLANT:	Viet-Cuong Bui
RESPONDENT:	HyView Fabrications Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W1908/22
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	16 August 2023
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 19 July 2022 is revoked. 2. There is an award in favour of the appellant for the cost of the C4-6 Anterior Cervical Decompression and Fusion recommended by Dr Singh. The respondent is to pay the reasonable cost of this surgery as particularised by the appellant.
CATCHWORDS:	WORKERS COMPENSATION – whether surgery is a reasonably necessary medical expense pursuant to section 60 of the Workers Compensation Act 1987 – Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 and Diab v NRMA Ltd [2014] NSWWCCPD 72 considered – approach to expert evidence – Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11, Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246, South Western Sydney Area Health Service v Edmonds 2007 NSWCA 16 and Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351 applied – guiding principles under rule 73 of the Personal Injury Commission Rules 2021 and section 21 of the Personal Injury Commission Act2020 – revocation and redetermination on appeal – section 352(6A) of the Workplace Injury Management and Workers Compensation Act 1998 – Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D Lam, solicitor
Longton Compensation Lawyers
Respondent:
Mr B Stringer
Moray & Agnew Lawyers

DECISION UNDER APPEAL
MEMBER:	Ms C McDonald
DATE OF MEMBER’S DECISION:	19 July 2022

INTRODUCTION

Viet-Cuong Bui, the appellant, was born in Vietnam, migrating to Australia in 1987. Thereafter he held various positions which involved him undertaking heavy physical work until commencing employment with HyView Fabrications Pty Ltd, the respondent, on 10 October 2018. On 3 April 2019, in the course of his employment with the respondent, the appellant fell off the tynes of a forklift and suffered injuries to his neck, shoulder and head in the nature of a concussion. Injury is not in dispute.
The appellant’s treating specialist, Dr Bhisham Singh, orthopaedic and spine surgeon, has recommended that the appellant undertake surgery, being a C4 to C6 decompression and fusion.[1] The respondent has contested whether the proposed surgery is reasonably necessary as contemplated by s 60(1) of the Workers Compensation Act 1987 (the 1987 Act). This was the sole issue to be determined by the Member.
[1] Application to Resolve a Dispute (ARD), p 48, [5].
In a decision dated 19 July 2022, the Member found that the proposed surgery was not reasonably necessary and entered an award in favour of the respondent. It is from that decision that the appellant pursues this appeal.
I would remark that the respondent, in a letter from its solicitors…

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 Bui v HyView Fabrications Pty Ltd

Details

AGLC: Bui v HyView Fabrications Pty Ltd [2023] NSWPICPD 49
Case: [2023] NSWPICPD 49
Decision Date: 16 August 2023

CaseChat Overview and Summary

The matter of Bui v HyView Fabrications Pty Ltd involved a claim by Bui, a former employee, against HyView Fabrications Pty Ltd, his former employer, for workers' compensation. The dispute centred on the issue of whether certain surgical procedures were reasonably necessary medical expenses under section 60 of the Workers Compensation Act 1987. The case was heard in the Workers Compensation Commission of New South Wales.

The legal issues before the court included the interpretation of section 60 of the Workers Compensation Act 1987, the assessment of expert evidence, and the application of principles under rule 73 of the Personal Injury Commission Rules 2021 and section 21 of the Personal Injury Commission Act 2020. The court had to determine whether the surgical procedures in question were reasonably necessary and thus compensable under the relevant legislation. It also had to consider the weight and relevance of expert evidence provided by both parties and the appropriate application of legal principles to the facts of the case.

In its reasoning, the court referred to established case law, including Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32, Diab v NRMA Ltd [2014] NSWWCCPD 72, and principles from Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11, Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246, South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, and Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351. The court examined the nature of the surgery, the medical necessity of the procedures, and the quality and reliability of the expert evidence presented. Ultimately, the court found that the surgery was not reasonably necessary, leading to a decision that the claim for compensation for those surgical expenses was not upheld. The matter was remitted for redetermination in light of the court's findings.

Orders