Duck v EB and De Bunt Pty Limited

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:

Duck v EB and DE Bunt Pty Limited [2020] NSWWCCPD 11

APPELLANT:

Michael Duck

RESPONDENT:

EB & DE Bunt Pty Limited

INSURER:

AAI Limited t/as GIO

FILE NUMBER:

A1-3126/19

ARBITRATOR:

Mr G Egan

DATE OF ARBITRATOR’S DECISION:

21 August 2019

DATE OF APPEAL DECISION:

9 March 2020

SUBJECT MATTER OF DECISION:

Extension of time; medical expenses pursuant to s 60 of the Workers Compensation Act 1987

PRESIDENTIAL MEMBER:

Acting Deputy President Geoffrey Parker SC

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr R Hanrahan, counsel

LHD Lawyers

Respondent:

Mr A Combe, counsel

Gair Legal

ORDERS MADE ON APPEAL:

1.     The appellant worker’s application to extend the time for the filing of the Application to Appeal is granted and the time for filing the Application is extended to 19 September 2019.

2.   The Arbitrator’s Certificate of Determination dated 21 August 2019 is confirmed.

INTRODUCTION

1. This is an appeal from an Arbitrator’s decision of 21 August 2019 declining to award compensation pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) with respect to a claim for surgical release of bilateral carpal tunnel.

CERTIFICATE OF DETERMINATION

1. On 21 August 2019 the Commission, pursuant to s 294 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act), issued a Certificate of Determination in the following terms:

   “The Commission determines:

   1.     There is an Award for the respondent with respect to the Applicant’s claim for injury to the right and left wrists in the form of bilateral carpal tunnel syndrome.

   2.     There is an Award for the respondent with respect to the claim for proposed bilateral carpal tunnel release.”[1]

   [1] Duck v EB & DE Bunt Pty Ltd [2019] NSWWCC 279 (Reasons).

2. The appellant seeks an order revoking the determination in Order 2, and a further order that the surgical treatment sought by the appellant, namely bilateral carpal tunnel surgery, is reasonably necessary as a result of the injury sustained to his right forearm and elbow in August 2017.

BACKGROUND FACTS

1. The appellant, Michael Duck, sustained injuries in August 2017 when he fell during the course of his employment with the respondent, EB & DE Bunt Pty Limited.

2. It is common ground that Mr Duck sustained some injury on that day. The Arbitrator held, accepting the appellant’s oral evidence, that Mr Duck fell and landed on both his hands and his right elbow.

3. The appellant first consulted his general practitioner, Dr Ruthnam, in respect of his injuries on 21 September 2017.

4. The appellant consulted Dr Marshall, orthopaedic surgeon, in November 2017.

5. The appellant consulted the attending physiotherapist, Mr Robinson, on 27 November 2017.

6. On 5 June 2018 Dr Marshall requested approval to fund a bilateral carpal tunnel release procedure.

7. The insurer refused to approve funding for the procedure.

THE ARBITRATOR’S STATEMENT OF REASONS

1. The Arbitrator identifies at paragraph [2] of the Statement of Reasons the areas of dispute between the parties namely (1) whether…