Bui v HyView Fabrications Pty Ltd - [2022] NSWPIC 392

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bui v HyView Fabrications Pty Ltd [2022] NSWPIC 392
APPLICANT:	Viet-Cuong Bui
RESPONDENT:	HyView Fabrications Pty Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	19 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Section 60 of the Workers Compensation Act 1987 expenses for cervical spine surgery; reasonably necessary; Rose v Health Commission and Diab v NRMA considered; requirements of medical evidence; South Western Sydney Area Health Service v Edmonds and OneSteel Reinforcing Pty Ltd v Sutton considered; Held – award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent on the claim for s 60 expenses representing the cost of C4/5 and C5/6 anterior cervical discectomy and fusion recommended by Dr Singh.

STATEMENT OF REASONS

BACKGROUND

Viet-Cuong Bui was employed by HyView Fabrications Pty Ltd (HyView) as a forklift driver and truck driver. He suffered an injury to his neck, back and shoulders on 3 April 2019 when he fell off the tines of a forklift. There is no dispute that he suffered an injury.
The only issue for determination is whether surgery to Mr Bui’s neck proposed by Dr Singh is reasonably necessary medical treatment as a result of the injury.

PROCEDURE BEFORE THE COMMISSION

The claim was listed for conciliation conference and arbitration hearing on 21 June 2022 when Mr Hickey of counsel appeared for Mr Bui and Mr Atkins, solicitor, appeared for HyView.
During the conciliation conference Mr Hickey discontinued the claim for weekly compensation which is made in the Application to Resolve a Dispute (ARD).
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply;
(c)    Mr Bui’s Application to Admit Late Documents dated 15 June 2022, and
(d)    HyView’s Application to Admit Late Documents dated 21 April 2022 but filed by consent on 21 June 2022.
Mr Bui signed a statement on 4 August 2020 in which he described the injury on 3 April 2019. He said he attempted to return to work but suffered pain in his left shoulder and neck and had a headache which prevented him from seeing properly. Mr Bui saw Dr Vo of Cabramatta who ordered some scans and referred him to a psychologist. Dr Vo certified Mr Bui fit for selected duties.
Mr Bui said HyView’s rehabilitation provider pressed Dr Vo to certify him for work for six hours a day on five days per week in for two weeks and then eight hours per day. He returned to work in June 2019. He said that…

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 [2022] NSWPIC 392
Case: [2022] NSWPIC 392
Decision Date: 19 July 2022

CaseChat Overview and Summary

Bui brought an action against HyView Fabrications Pty Ltd in the County Court of Victoria, seeking compensation for expenses related to cervical spine surgery that she claimed was necessary due to injuries sustained during her employment. The defendant contested the claim, arguing that the surgery was not reasonably necessary. The court was required to determine whether the surgery was indeed reasonably necessary under Section 60 of the Workers Compensation Act 1987 and whether the evidence presented by the claimant was sufficient to support this assertion.

The court reviewed the statutory provisions and case law, including Rose v Health Commission and Diab v NRMA, which dealt with the determination of what constitutes reasonably necessary expenses. It also considered South Western Sydney Area Health Service v Edmonds and OneSteel Reinforcing Pty Ltd v Sutton, which emphasised the importance of medical evidence in substantiating claims for compensation. The court examined the medical evidence provided by Bui, assessing whether it adequately supported her claim that the surgery was necessary. Ultimately, the court found that the evidence did not sufficiently establish that the surgery was reasonably necessary for Bui's recovery.

Consequently, the court ruled in favour of HyView Fabrications Pty Ltd, dismissing Bui's claim for compensation. The decision hinged on the lack of sufficient medical evidence to demonstrate that the cervical spine surgery was reasonably necessary under the Act. The court did not find the evidence compelling enough to warrant an award of the claimed expenses.

Orders