Chapple v Woolworths Limited - [2021] NSWPIC 66

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Chapple v Woolworths Limited [2021] NSWPIC 66
APPLICANT:	Michelle Chapple
RESPONDENT:	Woolworths Limited
MEMBER:	Ms Rachel Homan
DATE OF DECISION:	7 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for section 60 expenses for proposed surgery to insert gastric minimizer ring; accepted lumbar spine injury and consequential knee conditions; previous gastric bypass surgery found to be reasonably necessary as a result of lumbar injury in prior proceedings; issue estoppel; subsequent knee surgery and further weight gain; evidence of weight loss on medication; Held- recent weight gain multifactorial; injury materially contributed to present need for surgery; Murphy v Allity Management Services Pty Ltd applied; alternative treatments considered; Diab v NRMA Ltd, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service applied; proposed surgery reasonably necessary as a result of lumbar injury.
DETERMINATIONS MADE:	1. The procedure proposed by Dr Brendan Ryan is reasonably necessary as a result of the lumbar spine injury of 31 May 2014 (deemed). 2. The respondent to pay the costs of and ancillary to the procedure proposed by Dr Ryan pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Ms Michelle Chapple (the applicant) was employed by Woolworths Limited (the respondent) when she sustained an injury to her lumbar spine. Liability for the lumbar spine injury and a consequential knee condition is not in dispute.
The applicant claimed that as a result of the injury she had gained a significant amount of weight. On 1 August 2016, the applicant underwent gastric bypass surgery performed by Dr Brendan Ryan. On 27 March 2019, the Workers Compensation Commission determined that the surgery was reasonably necessary as a result of the injury and ordered the respondent to pay the costs of and ancillary to the surgery.
On 24 November 2020, Dr Ryan provided an Estimation of Fees for a further procedure to insert a gastric MiniMizer ring.
On 15 December 2020, the respondent disputed liability for pay for the further surgical procedure in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act).
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the former Workers Compensation Commission on 15 January 2021. The ARD sought compensation under s 60 of the Workers Compensation Act 1987 for the costs of the proposed surgery. The ARD was amended at conciliation conference on 16 March 2021 to include a claim for the costs ancillary to the proposed surgery.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a)whether the surgery to insert a gastric MiniMizer ring proposed by Dr Ryan is reasonably necessary as a result of the lumbar spine injury of 31 May 2014 (deemed).

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 16 March 2021. The applicant was represented by Mr Ross Stanton of counsel, instructed by Ms Silva Ishac. The respondent was…

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 Chapple v Woolworths Limited

Details

AGLC: Chapple v Woolworths Limited [2021] NSWPIC 66
Case: [2021] NSWPIC 66
Decision Date: 7 April 2021

CaseChat Overview and Summary

The claimant, Chapple, brought a case against Woolworths Limited regarding a workers' compensation claim. The claimant sought to have expenses for a proposed surgery to insert a gastric minimiser ring covered under section 60. The surgery was necessitated by a lumbar spine injury sustained during employment, which had resulted in consequential knee conditions. This case was heard by the court of appeal.

The legal issues before the court were whether the proposed surgery was reasonably necessary as a result of the lumbar spine injury, and if the injury materially contributed to the claimant's present need for the surgery. The court also had to consider whether the injury was an estoppel to the employer's ability to dispute the claim. The court examined the evidence of weight loss achieved on medication and the multifactorial nature of the recent weight gain.

The court found that the injury materially contributed to the claimant's present need for surgery, as established by the claimant's evidence and applying the principles in Murphy v Allity Management Services Pty Ltd. The court considered alternative treatments but found them insufficient, applying the reasoning in Diab v NRMA Ltd, Rose v Health Commission (NSW), and Bartolo v Western Sydney Area Health Service. The court concluded that the proposed surgery was reasonably necessary as a result of the lumbar injury.

The court ordered that the expenses for the proposed surgery to insert a gastric minimiser ring be covered under section 60 of the workers' compensation legislation.

Orders