Duff v Brobrik Pty Ltd - [2022] NSWPIC 268

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Duff v Brobrik Pty Ltd [2022] NSWPIC 268
APPLICANT:	Alan Duff
RESPONDENT:	Brobrik Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	3 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for right hip replacement surgery; respondent alleges applicant did not suffer a work-related injury to his right hip; Medical requirement for surgery not in issue; Held- the applicant suffered an injury to his right hip in the course of his employment with the respondent; Castro v State Transit Authority (NSW), Zickar v MGH Plastic Industries Pty Ltd followed; the preponderance of the medical evidence supports a finding of such injury, particularly the evidence of the treating doctors who noted the similarity between symptoms in the lumbar spine and in the hip; the fact the applicant’s doctors focused on his symptoms arising from a lumbar spine injury does not preclude the presence of a right hip injury; the applicant’s pattern of complaint and symptoms regarding his hip have been consistent since the date of injury, and there is no suggestion he suffered any hip symptoms before the injury at issue; the requirement for the proposed surgery results from the workplace injury; Jenkins v The State of Tasmania and Taxis Combined Services (Victoria) Pty Ltd v Schokman discussed and followed; respondent to pay the costs of and incidental to the proposed surgery.
DETERMINATIONS MADE:	1. The applicant suffered an injury to his right hip in the course of his employment with the respondent on 8 September 2016. 2. The applicant requires total right hip arthroplasty surgery as requested by Dr Randhawa, which surgery is reasonably necessary as a result of the injury referred to in paragraph 1 above. 3. The respondent is to pay the costs of and incidental to the surgery proposed by Dr Randhawa.

STATEMENT OF REASONS

BACKGROUND

On 8 September 2016, Alan Duff (the applicant) was in the course of his employment with Brobrik Pty Ltd (the respondent) when he suffered an accepted injury to his lumbar spine as a result of repetitively lifting and placing heavy blocks into the ceiling of a worksite.
The applicant also alleges he suffered an injury to his right hip on that occasion and brings a claim seeking payment by the respondent for a proposed right total hip replacement. There is no issue the proposed surgery is a medical necessity.
By section 78 notice dated 16 December 2021, the respondent disputed liability for the proposed surgery on the basis the applicant had not suffered a right hip injury in the incident on 8 September 2016, and that the requirement for the proposed surgery is not as a result of any work-related right hip injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered a right hip injury, and
(b) if so, whether that injury has brought about the need for the proposed surgery.

PROCEDURE BEFORE THE COMMISSION

The parties attended a hearing on 10 May 2022.…

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

Case: [2022] NSWPIC 268
Decision Date: 3 June 2022

CaseChat Overview and Summary

The applicant, Duff, sought a declaration that the respondent, Brobrik Pty Ltd, was liable for the cost of a right hip replacement surgery. The respondent contested the claim, arguing that the applicant did not suffer a work-related injury to his right hip. The matter was heard in the Workers Compensation Court of Victoria. The central issue before the court was whether the applicant's right hip injury was sustained in the course of his employment with the respondent. The court was also required to determine if the proposed surgery was necessitated by this work-related injury.

The court considered the medical evidence presented and noted that the requirement for the surgery was not disputed. It held that the preponderance of the medical evidence supported the finding that the applicant had indeed suffered a work-related injury to his right hip. The court relied on Castro v State Transit Authority (NSW) and Zickar v MGH Plastic Industries Pty Ltd to affirm that the similarity between symptoms in the lumbar spine and in the hip, as observed by the treating doctors, was indicative of a work-related injury. Furthermore, the court emphasised that the focus of the applicant's doctors on his lumbar spine injury did not negate the existence of a concurrent right hip injury. The applicant's consistent pattern of complaint and symptoms regarding his hip since the date of injury, without any prior hip symptoms, was also considered a significant factor.

In conclusion, the court found that the applicant's right hip injury was work-related and that the proposed surgery was a direct consequence of this injury. The court ordered the respondent to bear the costs of the surgery and any incidental expenses associated with it, following the reasoning in Jenkins v The State of Tasmania and Taxis Combined Services (Victoria) Pty Ltd v Schokman.

Orders