Clarke v Great Lakes Glass & Aluminium Pty Ltd - [2025] NSWPIC 390

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Clarke v Great Lakes Glass & Aluminium Pty Ltd [2025] NSWPIC 390
APPLICANT:	Andrew Clarke
RESPONDENT:	Great Lakes Glass & Aluminium Pty Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	8 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for costs of a two stage L5-S1 anterior lumbar interbody fusion and L5-S1 posterior decompression and fusion surgery; accepted lumbar injury; whether proposed surgery reasonably necessary as a result of the injury; whether evidence as to the nature of the injury; whether evidence as to conservative treatments trialled; appropriateness of the particular procedure; Diab v NRMA Ltd considered; Held – opinions of respondent’s medicolegal expert largely unchallenged; gaps in the applicant’s evidence; applicant failed to discharge onus of establishing that proposed surgery is presently reasonably necessary as a result of the injury.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has not discharged his onus of establishing that the surgery proposed by Dr Brian Hsu is, at the present time, reasonably necessary as a result of the injury on 7 September 2023. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr Andrew Clarke (the applicant) sustained an injury to his lumbar spine in the course of his employment with Great Lakes Glass & Aluminium Pty Limited (the respondent) on
7 September 2023. Liability for the injury was accepted by the respondent’s insurer.
On 2 July 2024, orthopaedic surgeon, Dr Brian Hsu wrote to the insurer requesting approval for the applicant to undergo a two stage L5-S1 Anterior Lumbar Interbody Fusion and L5-S1 Posterior Decompression and Fusion surgery.
Liability for the surgery was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on
15 November 2024. That decision was maintained following internal review on 7 May 2025.
The applicant commenced the current proceedings in the Personal Injury Commission (Commission) on 23 May 2025. The applicant seeks compensation under s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the proposed surgery.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the proposed surgery is reasonably necessary as a result of the injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared before the Commission via Microsoft Teams on 4 August 2025. The applicant was represented by Mr Graham Barter of counsel, instructed by Mr Digby Dunn. The respondent was represented by Ms Nicole Compton of counsel, instructed by Mr Dane Twohill. A representative from the insurer was also present.
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 have 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…

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 Clarke v Great Lakes Glass & Aluminium Pty Ltd

Details

AGLC: Clarke v Great Lakes Glass & Aluminium Pty Ltd [2025] NSWPIC 390
Case: [2025] NSWPIC 390
Decision Date: 8 August 2025

CaseChat Overview and Summary

The applicant, Clarke, brought a claim against Great Lakes Glass & Aluminium Pty Ltd in the Workers Compensation Court of New South Wales for the costs of a two-stage surgical procedure, specifically an L5-S1 anterior lumbar interbody fusion and an L5-S1 posterior decompression and fusion. Clarke's claim arose from an accepted lumbar injury sustained during his employment, and the central issue before the court was whether the proposed surgical intervention was reasonably necessary as a result of the injury. The court was required to assess the sufficiency of the evidence provided regarding the nature of the injury, the conservative treatments attempted, and the appropriateness of the surgical procedure proposed.

In considering the matter, the court noted that the opinions of the respondent's medicolegal expert were largely unchallenged, while there were notable gaps in the applicant's evidence. The court found that Clarke had failed to discharge the burden of establishing that the proposed surgery was presently reasonably necessary as a consequence of the injury. The reasoning relied upon the precedent set in Diab v NRMA Ltd, which underscored the necessity for a robust evidentiary basis to support the need for surgical intervention in workers' compensation claims. The court concluded that the applicant's evidence did not sufficiently demonstrate that the proposed surgery met the criteria for reasonableness and necessity as required by the Workers Compensation Act 1987.

Consequently, the court dismissed Clarke's claim for the costs of the proposed surgery. The final orders of the court reflected the determination that the applicant had not met the requisite standard of proof to justify the reasonableness of the surgical procedure. Clarke's claim was therefore rejected, and the costs of the proposed surgery were not to be borne by Great Lakes Glass & Aluminium Pty Ltd under the circumstances presented.

Orders