Cleverly v Anglican Community Services - [2025] NSWPIC 323

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cleverly v Anglican Community Services [2025] NSWPIC 323
APPLICANT:	Racheal Cleverly
RESPONDENT:	Anglican Community Services
MEMBER:	Kathryn Camp
DATE OF DECISION:	7 July 2025
DATE OF AMENDMENT:	24 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60; claim for proposed surgery for accepted lumbar spine injury; acceptance that surgery results from injury; dispute as to whether surgery is reasonably necessary; fair climate for acceptance of expert medical opinion; Commission’s expert knowledge and inferences; whether 50% chance of success is determinative; phrase “likely to be effective”; Hendrix v Accuro Homecare Pty Ltd, Rose v Health Commission (NSW) and Diab v NRMA Limited considered and applied; Held – likely effectiveness of treatment not determinative; poor prospects does not preclude treatment being reasonably necessary where purpose and potential effect is to alleviate injury consequences and is most effective modality; applicant discharged onus of proof; respondent to pay costs of and ancillary to proposed lumbar spine surgery pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The proposed lumbar spine surgery in the nature of “Bilateral L4/5 wiltse approach to L4/5 decompression + posterior interbody fusion + pedicle screw internal fixation + posterolateral fusion procedure”, recommended by Dr Ow-Yang, is reasonably necessary treatment as a result of injury to the applicant’s lumbar spine on 18 September 2019. The Commission orders: 2. The respondent is to pay the applicant’s reasonably necessary costs of and incidental to proposed lumbar spine surgery recommended by Dr Ow-Yang, pursuant to s 60(5) of the Workers Compensation Act 1987. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns whether proposed lumbar spine surgery is reasonably necessary pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), in circumstances where it is not disputed that surgery results from an accepted workplace injury. For the reasons discussed below, the worker’s claim for compensation is successful.

BACKGROUND

On 18 September 2019, Racheal Cleverly, the applicant worker, sustained an accepted injury to her lumbar spine while working as an aged care worker for the respondent, Anglican Community Services.
The respondent’s insurer issued notices pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998 declining the claim for medical expenses for the costs of proposed lumbar spine surgery.
On 6 March 2025, the applicant lodged an Application to Resolve a Dispute in respect of the claim for medical expenses.
On 28 March 2025, the respondent lodged a Reply.

ISSUE FOR DETERMINATION

The issue in dispute is:
(a) whether the proposed lumbar spine surgery and related expenses is reasonably necessary pursuant to s 60 of the 1987.
The respondent concedes injury to the lumbar spine and that the proposed surgery (and related expenses) is as a result of the accepted injury, but disputes the reasonable necessity of the surgery.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 14 April 2025, the parties attended…

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.

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Details

AGLC: Cleverly v Anglican Community Services [2025] NSWPIC 323
Case: [2025] NSWPIC 323
Decision Date: 7 July 2025

CaseChat Overview and Summary

The case of Cleverly v Anglican Community Services involved the applicant, Cleverly, seeking compensation for a proposed lumbar spine surgery arising from an accepted injury. The dispute centred on whether the surgery was reasonably necessary to address the injury. The matter was heard in the Workers Compensation Commission, with the decision ultimately being reviewed by the courts. The legal issues before the court were whether the Commission had correctly assessed the necessity of the surgery and whether it had appropriately considered the medical evidence presented.

The court examined the Commission’s application of the Workers Compensation Act 1987, particularly section 60, which pertains to the approval of medical treatment. The central issue was whether the surgery's likely effectiveness, which was considered to have less than a 50% chance of success, precluded it from being deemed reasonably necessary. The court referenced previous cases such as Hendrix v Accuro Homecare Pty Ltd, Rose v Health Commission (NSW), and Diab v NRMA Limited to interpret the phrase "likely to be effective" and to establish that the prospects of success were not the sole determinant in assessing the necessity of the treatment. The court held that the likelihood of effectiveness was not determinative if the treatment was intended to alleviate the consequences of the injury and represented the most effective available modality.

The court concluded that the Commission had properly discharged its onus of proof by considering the expert medical opinions and the potential benefits of the surgery in the context of the injury. The court also found that the respondent was liable to pay the costs of and ancillary to the proposed surgery as mandated by section 60 of the Act. This decision underscores the importance of evaluating the necessity of medical treatment based on its potential to alleviate injury consequences, rather than solely on the likelihood of its success.

Orders