DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:
Diab v NRMA Ltd [2014] NSWWCCPD 72
APPELLANT:
John Diab
RESPONDENT:
NRMA Ltd
INSURER:
CGU Workers Compensation (NSW) Ltd
FILE NUMBER:
A1-5150/13
ARBITRATOR:
Ms K Haddock
DATE OF ARBITRATOR’S DECISION:
22 July 2014
DATE OF APPEAL HEARING:
5 November 2014
DATE OF APPEAL DECISION:
10 November 2014
SUBJECT MATTER OF DECISION:
Hospital and medical expenses under s 60 of the Workers Compensation Act 1987; whether knee surgery was reasonably necessary as a result of accepted work injuries; causation; meaning of “reasonably necessary”; Rose v Health Commission (NSW) (1986) 2 NSWCCR 32 and Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233 discussed and explained in light of Clampett v WorkCover Authority (NSW) (2003) 25 NSWCCR 99; failure to draw compelling inferences; requirement for an expert to explain his or her opinion
PRESIDENTIAL MEMBER:
Deputy President Bill Roche
HEARING:
Oral
REPRESENTATION:
Appellant:
Ms E Grotte, instructed by Turner Freeman
Respondent:
Mr S Flett, instructed by Moray & Agnew
ORDERS MADE ON APPEAL:
1. The Arbitrator’s determination of 22 July 2014 is revoked and the matter is remitted to a different Arbitrator for determination of all outstanding issues in accordance with the reasons in this decision.
2. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.
INTRODUCTION
This appeal involves a challenge to an Arbitrator’s finding that the cost of hospital and medical treatment under s 60 of the Workers Compensation Act 1987 was not reasonably necessary as a result of certain accepted work injuries. For the reasons explained below, the appeal is successful.
BACKGROUND
The appellant, John Diab, works for the respondent employer, NRMA Ltd (the respondent), as a road service patrol officer. It is not disputed that he injured his left knee in the course of his employment with the respondent on several occasions, but the nature of the injury and the need for surgery as a result of injury is disputed.
The first injury was on 3 January 2005. Mr Diab gave unchallenged evidence that, on that day, he twisted his left knee while getting out of a low vehicle and he felt “acute and debilitating pain” in his knee. He saw his general practitioner, Dr Dick Kuo, who referred him for physiotherapy. Though Mr Diab remained at work, initially on light duties and then on full duties, he said that he continued to experience intermittent symptoms in his knee.
In or about April 2012, Mr Diab again twisted his left knee while getting out of his vehicle to assist an NRMA member. He felt pain and clicking in his knee and reported it to the respondent. He again had physiotherapy and Dr D Kuo referred him to Dr B Fritsch, orthopaedic surgeon. Though this injury has not been specifically pleaded, it is not disputed that it occurred or that Mr Diab is entitled to rely on it.
On 1…
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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AGLC
Diab v NRMA Ltd [2014] NSWWCCPD 72
Case
[2014] NSWWCCPD 72
Decision Date
CaseChat Overview and Summary
The case of Diab v NRMA Ltd involves an appeal against a decision made by an Arbitrator concerning the eligibility for hospital and medical expenses under section 60 of the Workers Compensation Act 1987. The dispute arose from a claim by the appellant, Mr Diab, for medical expenses related to knee surgery, which he argued were a consequence of work-related injuries accepted by the respondent, NRMA Ltd. The matter was heard in the New South Wales Civil and Administrative Tribunal, specifically within its Workers Compensation List.
The primary legal issue before the Tribunal was whether the knee surgery undergone by Mr Diab was reasonably necessary as a result of the accepted work injuries. The court had to interpret the phrase "reasonably necessary" in the context of section 60 of the Workers Compensation Act. This required a careful examination of the jurisprudence, notably considering decisions such as Rose v Health Commission (NSW) (1986) 2 NSWCCR 32, Bartolo v Western Sydney Area Health Service [1997] NSWCC; 14 NSWCCR 233, and Clampett v WorkCover Authority (NSW) (2003) 25 NSWCCR 99. The Tribunal needed to determine whether the Arbitrator had correctly applied these precedents and whether the failure to draw compelling inferences from the evidence and the lack of an expert's explanation for their opinion constituted a material error in the decision-making process.
In reaching its decision, the Tribunal found that the Arbitrator had failed to adequately apply the relevant legal principles in assessing the necessity of the knee surgery. The Tribunal emphasised that under Clampett, it is imperative for the decision-maker to draw compelling inferences from the evidence when determining the necessity of medical treatment. Furthermore, it was critical that an expert's opinion be adequately explained. The Tribunal concluded that the Arbitrator had not fulfilled these requirements, leading to a material error in the determination. Consequently, the Tribunal revoked the Arbitrator’s decision and remitted the matter to a different Arbitrator for re-determination, ensuring all outstanding issues are addressed in accordance with the Tribunal's reasons. Additionally, the Tribunal ordered that the respondent employer bear the costs of the appeal as agreed or assessed.
Orders
Orders of the court
1. The Arbitrator’s determination of 22 July 2014 is revoked and the matter is remitted to a different Arbitrator for determination of all outstanding issues in accordance with the reasons in this decision.
2. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.