Frost v Inghams Enterprises Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Frost v Inghams Enterprises Pty Ltd [2024] NSWPIC 324
APPLICANT:	Matthew Frost
RESPONDENT:	Inghams Enterprises Pty Ltd
PRINCIPAL MEMBER:	Glenn Capel
DATE OF DECISION:	20 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Personal Injury Commission Act 2020 (PIC Act); claim for $2,115 for replacement crown implant; dispute whether pathology in tooth resulted from accepted injury; matter transferred from Form 1 to Form 2 to enable Directions for Production to be issued; dispute notices vague and failed to provide a proper explanation of the reasons for the dispute in accordance with section 79 of the 1998 Act; respondent did not qualify as an expert dentist; it is submitted that applicant failed to discharge the onus and that there was no evidence that a crown implant was an “artificial aid”; self-insurer failed to comply with State Insurance Regulatory Authority’s (SIRA) Claims Management Guide and SIRA Standards of Practice (April 2022), and the guiding principle in section 42 of PIC Act; the claim was not important or complex, and the small value was disproportionate to the cost to the parties and the Commission; Kooragang Cement Pty Ltd v Bates, Lyons v Master Builders Association of NSW Pty Ltd, Department of Education & Training v Ireland, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, Diab v NRMA Ltd, Herborn v Spotless Services Australia Limited, Thomas v Ferguson Transformers Pty Ltd, and Pacific National Pty Ltd v Baldacchino discussed and applied; Held – crown implant was reasonably necessary and involved an artificial aid; respondent to pay for treatment pursuant to sections 59(A)(6)(a) and 60 of the 1987 Act; matter referred to Principal Registrar with a view to reporting the self-insurer’s conduct to SIRA.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury to his teeth arising out of or in the course of his employment on 31 October 2011. 2. The applicant’s employment was a substantial contributing factor to his injury. 3. The applicant requires medical treatment as a consequence of his injury and the respondent is liable to pay reasonably necessary medical expenses. 4. The full crown implant of tooth 21 and a consultation with Warnervale Dental was reasonably necessary treatment as a result of the injury arising out of or in the course of the applicant’s employment on 31 October 2011. 5. The applicant is not precluded from receiving compensation by reason of s 59A(6) of the Workers Compensation Act 1987. The Commission orders: 6. The respondent to pay the applicant’s medical expenses of $2,115 pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Matthew Frost (the applicant) is 43 years old and was employed by Inghams Enterprises Pty Ltd (the respondent) as a process worker. The precise details of the period of employment are unknown.
The applicant completed a claim form on 24 January 2012, alleging that he injured a front tooth on 31 October 2011, when he was struck whilst putting a bulk bin lid back onto the bin.
Inghams Enterprises Pty Ltd as self-insurer (the self-insurer) accepted provisional liability on 3 November 2011 for the reasonable costs of treatment. It paid for dental treatment including the cost of a crown implant. Precise details are unknown.
On 14 August 2023, the applicant’s solicitor served a notice of claim for medical expenses for the cost of and associated with a replacement crown of the upper left central incisor (tooth number 21) pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
On 4 September 2023, the self-insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that the applicant sustained an injury arising out of or in the course of employment, that his employment was not a substantial contributing factor to his injury, that the treatment was reasonably necessary or payable. The date of injury was identified as 31 October 2011 (approx.). It cited ss 4, 59A and 60 of the 1987 Act.
The self-insurer identified the issues relevant to the dispute as injury, causation, need for treatment and preclusion under s 59A of the 1987 Act. However, the self-insurer failed to provide any explanation of the reasons for its decision in accordance with ss 79(2) and 79(3) of the 1998 Act.
On 9 February 2024, the applicant’s solicitor, Ms Nair, requested a review of the self-insurer’s decision and attached a number of reports and documents.
On 13 February 2024, the self-insurer reviewed its decision pursuant to s 287A of the 1998 Act and confirmed its position. Again this notice was entirely inadequate and gave no proper explanation for the decision.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

Ms Nair filed an Application for Expedited Assessment (the Application) in the Personal Injury Commission (Commission) on 22 March 2024.The applicant claimed medical expenses of $2,115 in respect of the cost of full crown osseointeg implant of tooth 21 and a consultation with Warnervale Dental pursuant to s 60 of the 1987 Act.
A preliminary conference was scheduled before Member McGrowdie on 23 April 2024. The respondent’s solicitor, Mr Macken, requested that the matter be transferred to a Form 2 Application to enable him to issue Directions for Production.
Mr Macken also indicated that there was a dispute regarding s 261 of the 1998 Act and that the Commission had no jurisdiction to deal with the dispute. There was little merit in such a submission, as it seemed at odds with the claim form dated 24 January 2012 that had been provided to the applicant’s solicitor pursuant to s 126 of the 1998 Act. Further, there is no indication in the file that Mr Macken sought leave to raise this fresh issue pursuant to s 289A of the 1998 Act.
Despite opposition from Ms Nair, the Member listed the matter for a conciliation conference and arbitration hearing on 12 June 2024. He also subsequently issued six Directions for Production on 29 April 2024 after Mr Macken sent a letter to the Commission on
26 April 2024. It would seem that the applicant was not given the opportunity to consent or oppose this Direction.
On 13 May 2024, Ms Nair sent an email to the Commission. She gave a summary of what transpired at the conference on 23 April 2024 and advised that the applicant had some issues with the Member, and she requested that the matter be allocated to a different Member to hear and determine the matter.
The correspondence was referred to me in my capacity as Division Head. I considered the submissions made by Ms Nair and decided that the matter should be reallocated.
I scheduled a preliminary conference on 16 May 2024. I used my best endeavours to assist the parties to resolve this small claim in accordance with my statutory obligations, but unfortunately the self-insurer would not entertain a resolution.
Accordingly, I issued the following Direction:
“The Commission directs:
1.     In light of the concerns raised by the applicant in letter sent to the Commission on 13 May 2024, Member McGrowdie is recused from hearing this matter.
2.     The Application for Expedited Assessment matter is transferred to the Commission and will be dealt with as Form 2 – Application to Resolve a Dispute.
3.     The conciliation conference and arbitration hearing on 12 June 2024 is cancelled.
4.     The Application to Resolve a Dispute and attached documents and the Reply and attached documents are admitted into evidence.
5.     The applicant is to file and serve an Application to Admit Late Documents, attaching a copy of the applicant’s claim form and a copy of the documents produced by Wyong Hospital and Dr Cox by 21 May 2024.
6. The respondent is to file and serve an Application to Admit Late Documents, attaching a copy a correspondence identifying the issues in dispute and a concise and readily understandable statement of the reasons for the insurer’s decision and the issues relevant to the decision, consistent with s 79(2) and s 79(3) of the Workplace Injury Management and Workers Compensation Act 1998, and copies of the evidence relied upon by the respondent in support of its decision, by 21 May 2024.
7.     The respondent is to file and serve written submissions by 27 May 2024.
8.     The applicant is to file and serve written submissions by 3 June 2024.
9.     Any submissions in reply are to be filed and served by 7 June 2024.
10.   At the conclusion of the time allowed for submissions the dispute will be determined ‘on the papers’.
11.   Liberty to the parties to apply.
12.   There is no dispute that the applicant sustained an injury to tooth 21 on 31 October 2011.
13.   The respondent paid for removal of tooth 21 and insertion of an implant in approximately November 2011.
14. The dispute notice issued by the self-insurer on 4 September 2023 and the review notice issued on 13 February 2024 do not comply with s 79 of the Workplace injury Management and Workers Competition Act 1998 Act. Accordingly, the matters in dispute are to be clarified by the respondent in accordance with direction 6 above.”
Mr Macken filed a copy of a letter sent to Ms Nair on 21 May 2024 which purported to address Direction 6 above. Unfortunately, this was sadly lacking in any information and shed little light on the nature of the dispute. Thus it was appropriate that the respondent was ordered to file written submissions first.
The respondent filed written submissions on 28 May 2024. The applicant filed written submissions on 3 June 2024.
The respondent filed submissions in reply on 7 June 2024.
After reviewing the respondent's submissions in reply, I directed the applicant to file further submissions, but limited to the notes of Dr Lin and in response to the respondent’s submissions regarding the dispute in respect of s 59A of the 1987 Act by 13 June 2024. Any submissions in reply to be filed and served by the respondent by 14 June 2024.
The applicant filed written submissions on 13 June 2024. The respondent failed to file any submissions in accordance with my Direction, and when the Dispute Officer contacted Mr Macken on 18 June 2024, Mr Macken advised that he had a personal matter to deal with on 14 June 2024 and was too busy on 17 June 2024. At his request, the time to file submissions was extended to the close of business on 18 June 2024, and on this occasion, he complied with the timetable.
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. The parties were advised of the intention to determine the dispute without holding a conciliation conference or arbitration hearing.

ISSUES FOR DETERMINATION

The following issues remain in dispute:
(a) whether the current pathology in the applicant’s tooth results from the incident on 31 October 2011 – s 4 of the 1987 Act;
(b) whether the medical treatment was reasonably necessary - s 60 of the 1987 Act, and
(c) whether the respondent is liable for the payment of medical expenses -
ss 59, 59A and 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the respondent on 21 May 2024;
(d)    Application to Admit Late Documents filed by the applicant on 21 May 2024, and
(e)    Application to Admit Late Documents filed by the applicant on 4 June 2024.

Oral evidence

Neither party sought leave to adduce oral evidence or cross examine any witnesses.

REVIEW OF EVIDENCE

Applicant’s statement

The applicant provided a statement on 11 March 2024. He confirmed that he was struck in the mouth when he was trying to put a 15kg lid onto an empty bin on 31 October 2011. He reported the injury and attended First Aid where he was given a cold compress to stop the bleeding.
The applicant stated that he continued to experience problems and his general practitioner referred him to Pacific Smiles Dental on 2 November 2011. The dentist removed tooth 21 and inserted a crown. The self-insurer paid for this treatment.
The applicant indicated that he had no problems with the crown until August 2023 when the crown broke when he was eating a normal hamburger. He felt something hard when he bit into the hamburger, and then part of his crown fell off.
The applicant explained that he did not play sports and had not been involved in any accidents. He attended the dentist on 11 August 2023 and was informed that he needed a replacement crown. When he sought approval, the self-insurer declined liability. As he was having difficulty eating, he paid for the new crown. I note that the actual proposed treatment was for a replacement crown implant, not merely a crown.

Reports and clinical notes of Pacific Smiles Dental

The clinical notes of Pacific Smiles Dental commence on 20 February 2010 and conclude on 10 January 2012. The applicant was referred to this practice following the incident by the respondent’s doctor, Dr Kwong, on 2 November 2011.
The applicant attended the surgery on 2 November 2011 following trauma to teeth 11 and 21. Both teeth were loose and it was thought that tooth 21 could not be saved.
On 8 November 2011, it was noted that tooth 21 was still loose, but tooth 11 was firm. Tooth 21 was still loose when the applicant attended on 25 November 2011.
On 10 January 2012, it was noted that Dr Yong had performed a pulpectomy and had splinted tooth 22 to the neighbouring teeth.
Dr Alattiyah provided an undated report and confirmed that the applicant had two loose teeth following the incident on 31 October 2011. He doubted that the tooth could be saved and recommended its removable and the insertion of an implant.
Dr Yong reported on 8 November 2011. He advised that the applicant sustained trauma to the upper anterior teeth. He informed the applicant that he might lose one or both upper central incisors and might need an implant. They decided to try to keep the damaged incisor and a splint was applied to the tooth.

Clinical notes and reports of Dr Cox

Dr Cox reported on 26 September 2013 and 24 October 2013. He advised that the applicant was referred to him by Wyong Hospital following a left sided facial injury sustained when playing a game of rugby league on 1 September 2023.
Dr Cox stated that X-rays showed a depressed fracture of the left zygomatic arch and a fracture through the left floor of the orbit. Surgery was performed at Gosford Hospital to elevate the left zygoma on 1 September 2013.
The applicant’s post operative recovery was uneventful. X-rays taken on 29 September 2013 showed a good reduction of the fracture and the applicant was cleared to return to normal duties.

Clinical notes of Kanwal Village Medical Centre

The clinical notes of Kanwal Village Medical Centre commence on 23 May 2013 and conclude on 11 November 2023.
At the consultation on 6 September 2013, it was noted that the applicant had swelling on the left side of his face with tenderness and numbness of the left side of his cheek. There was no further entry in respect of this facial injury.

Clinical notes of Wyong Hospital

The clinical notes of Wyong Hospital contain notes from Gosford Hospital.
The applicant attended Wyong Hospital on 19 May 2003 following an inversion injury to his right ankle, and on 29 November 2008 after he was assaulted.
The applicant attended Wyong Hospital on 22 June 2003 and 15 July 2003 after he injured his right middle finger when playing football.
On 9 June 2013, the applicant attended Wyong Hospital after he was knocked out by a security guard at a venue. He presented with a contused and swollen left side of the mouth with internal bruising and abrasion of the buccal mucosa. The teeth were intact and there was no fracture of the mandible. He did not require any treatment.
According to the history recorded when the applicant attended Wyong Hospital on
1 September 2013, he suffered a head collision on the left side of his face when playing football. He developed a tender lump below the left zygomatic arch and the lump gradually became bigger.
A CT scan taken on 1 September 2013 at Wyong Hospital showed a comminuted fracture of the left zygomatic arch and fractures of the left lateral and inferior orbital wall. The was also extensive periodontitis of the applicant’s left second and third molar.
Dr Cox elevated the left zygoma in day surgery at Gosford Hospital on 13 September 2013.

Clinical notes and reports of Dr Lin

In an undated report,[1] Dr Lin from Warnervale Dental indicated that the applicant had attended the surgery that day with a fractured implant crown on tooth 21. The doctor advised that the implant had accumulated fatigue over the years and had fractured as a result. He recommended a replacement implant crown and provided a quote for the procedure in the sum of $2,000.
[1] Application, p 2.
In response to a request from the applicant’s solicitor dated 26 October 2023, Dr Lin provided a further undated report.[2] He understood that the applicant had suffered a traumatic impact on 31 October 2011 that had permanently damaged tooth 21 beyond repair, so the tooth was removed.
[2] Application, page 18.
Dr Lin advised that if that incident had not occurred, it was highly unlikely that the tooth would have needed to be repaired or removed. He considered that the need for the replacement of the implant crown was due to a fracture of the crown which was most likely caused by a build-up of cyclic fatigue from chewing parafunctional forces. He stated that if the tooth had not been damaged in 2011, it is unlikely that the replacement would have been necessary, because the demands for maintenance of an implant exceed that of a natural tooth.
Dr Lin stated that alternative treatment options included a removable denture or a fixed partial denture, but these were inferior to restoration of the implant. The removable denture would be functionally inferior and the fixed partial denture would require removal of the tooth structure of the adjacent two teeth which would weaken them. If the crown was not replaced, the implant and metal abutment would not satisfy the chewing requirements and it would be the same as having no tooth, and there would be a risk of further biological and mechanical complications that might require removal of the implant resulting in increased costs and procedures.
The clinical notes commence on 11 August 2023 and conclude on 8 May 2024. They are consistent with Dr Lin’s reports and show that the applicant has also experienced issues with other teeth.
According to invoices dated 11 August 2023 and 1 September 2023, the applicant was charged $115 for a consultation and $2,000 for a full crown implant.

Respondent’s submissions

Mr Macken submits that the respondent has not had the opportunity of access to all material produced in response to the Directions, so the respondent cannot complete its submissions at this time.
Whilst it is true that documents had not yet been produced to the Commission by Dr Lin and Dr Yong, the other documents have been produced and they were attached to the Application to Admit Late Documents filed by the applicant on 21 May 2024, so they were available before Mr Macken filed the respondent’s submissions. In any event, I indicated at the preliminary conference that I would allow further submissions if documents were produced after submissions were filed.
Mr Macken concedes that an incident occurred on 31 October 2011, but he submits that the applicant has not discharged the onus of demonstrating that the pathological alteration said to require the treatment in 2023 is a consequence of the incident in 2011.

Mr Macken submits that whilst Dr Lin asserts that the requirement for treatment in 2023 is a result of the incident in 2011, he was not given a history of the incident in September 2013 when the applicant suffered a facial fracture during a game of football.
Mr Macken submits that this assumes more significance as Dr Lin made reference to the current treatment having likely occurred due to the build-up of cyclic fatigue from chewing or parafunctional forces. He submits that a footballing incident that resulted in an impact and a serious facial fracture can constitute a parafunctional force as described by the doctor.
Mr Macken submits that the cost of the medical treatment is not recoverable by reason of the operation of s 59A of the 1987 Act, because of the passage of time. He submits that there is no evidence that the treatment is exempt from the operation of the section

Applicant’s submissions

The applicant’s counsel, Mr Morgan, submits that the respondent failed to comply with my Direction and he also submits that the submissions filed by Mr Macken deferred to the applicant’s ultimate submissions and made broad assertions. There is certainly merit in such a submission.
Mr Morgan submits that the applicant injured tooth 21 in 2011 that required a dental implant. The claim was accepted and funded by the respondent. The crown of the implant fractured 12 years after its implant and the fracture was due, on the only medical evidence available to “accumulated fatigue over the years”.
Mr Morgan submits that Dr Lin commented on the cause of the fracture and stated if the tooth had not been damaged by the incident, it was unlikely that the crown replacement would have been necessary, as the demands for maintenance of an implant restoration exceed that of a natural tooth. Cyclic fatigue described the inevitable failure of artificial implant that occurs over time, and parafunctional forces have been defined as repetitive behaviour that impact oral structures which include bruxism and nail biting.
Mr Morgan submits that the only medical opinion evidence clearly identifies the failure of the tooth as being due to the inevitable decline of the implant’s structural integrity, giving rise to the need for replacement.
Mr Morgan submits that the football injury was irrelevant to the current dispute as it involved impact to the upper part of the face below the eyelid. There is no medical or other evidence to suggest any impact on the integrity of dental structure.
Mr Morgan submits that on 24 October 2013 [sic], Dr Cox noted good oral function and there was no mention of issues with any teeth.
Mr Morgan submits that the applicant is not precluded from an award as s 59A(6) of the 1987 Act because it provides that the section does not apply to compensation in respect of artificial members, eyes or teeth and other artificial aids. The replacement of a failed dental implant clearly falls within the exception to the section.
Mr Morgan submits that the respondent’s dispute of the claim is made without evidence and is based purely on supposition and assumption on the part of those acting on behalf of the insurer. The injury to the tooth and the need for its replacement was accepted as a workplace injury.
Mr Morgan submits that s 59A of the 1987 Act clearly identifies the need for compensation to be paid relative to provision of the treatment and with reference to s 60 and the authorities.
Mr Morgan submits that the repair of the implant to assist general health, mastication and appearance fits comfortably within the requirements of s 60 of the 1987 Act as far as reasonable treatment being provided.
Mr Morgan submits that the cost of the treatment is inconsequential, given the nature of the benefit that might be obtained by the applicant, not to mention the legal costs incurred in the foundation less denial of this claim. He submits that absent any cogent reason or medical argument from the respondent to support its position, an award should be made in the applicant’s favour.

Respondent’s submissions in reply

Mr Macken submits that the applicant has not discharged the onus of proof because the medical practitioners have not been provided with a complete history.
Mr Macken submits that whilst the treatment appeared to be necessary, the applicant has not discharged the onus of proof that the treatment resulted from the injury.
Mr Macken submits that the applicant’s tooth remains in situ and the treatment did not involve the provision of teeth, so he cannot rely on s 59A of the 1987 Act.
In the alternative, Mr Macken submits that the medical evidence does not address how the treatment involved any "artificial aid". The respondent relies on the consideration of the meaning of that phrase in Pacific National Pty Ltd v Baldacchino.[3] The respondent submits that it is not open to the Commission to simply infer that treatment involves the provision of an artificial aid in circumstances where the medical evidence does not specifically address it.
[3] [2018] NSWCA 281, (Baldacchino).
Mr Macken submits that if the treatment involves the provision of an artificial aid, then the respondent would only be liable for the cost of the aid and not the cost of the medical treatment.

Applicant’s further submissions

In the submissions dated 13 June 2024, Mr Morgan submits that in Baldacchino, his Honour Justice Macfarlan cited with approval the comments of Hutley JA ( Hope JA agreeing) in Thomas v Ferguson Transformers Pty Ltd, [4] who described an artificial aid as “anything which has been specially constructed to enable the effects of the disability (the result of an injury) to be overcome” and “The essential; quality of an artificial aid is that it is an aid specially tailored to the needs of a person, which flowed from an injury”.[5]
[4] [1979] 1 NSWLR 216, (Thomas).
[5] Thomas, [220] – {222}.
Mr Morgan submits that it is difficult to discern and understand the respondent’s submissions in light of Baldacchino, where the employer advanced similar submissions that were rejected. He submits that it is hard to imagine how an artificial tooth that aids oral function and whose presence is needed as a consequence of an accepted injury could not fall within the definition. This constitutes an artificial aid as it assumes the role previously done by the tooth and fulfills the role to overcome a disability caused by the injury.
Mr Morgan submits that in Baldacchino, his Honour Justice Macfarlan dismissed a similar submission that the cost of the surgery was not covered.[6] He submits that implantation surgery is required for the purpose of implanting the artificial aid, and it follows that it is part of the cost associated with the provision of the aid.
[6] Baldacchino, [42].
Mr Morgan submits that the notes of Dr Lin do not attach any significance to the facial injury sustained in 2013.

Respondent’s further submissions

In the submissions dated 18 June 2024, Mr Macken submits that the applicant’s submissions proceed on the basis of assumptions in respect of the proposed treatment that are either not supported by the evidence or the evidence is unclear. The onus is on the applicant to adduce evidence as to how the proposed treatment comes within s 59A(6) of the Act and he has not discharged that onus.
Mr Macken submits that there is no general rule that the cost of surgery will always also be the cost of the provision of an artificial aid in particular where other treatment is involved. He submits the records of Warnervale Dental show that other treatment is involved and is not limited to tooth 21.

REASONS

Did the current pathology in the applicant’s tooth results from the incident on
31 October 2011? – s 4 of the 1987 Act

Mr Macken submits that because the applicant bears the onus, it is usual for the applicant to make submissions first. He submits that this places the respondent in a difficult position as it does not know how the applicant intends to advance his case. In my view, there is little, if any, merit in such a submission.
It is true that the applicant normally makes submissions first, but there is no set requirement in the Commission as to which party should make the first submissions.
As I indicated at the preliminary conference, the self-insurer gave no proper explanation in its notices regarding the reasons why it disputed the applicant’s claim. It failed to provide a concise and readily understandable statement of the reasons for its decision and the issues relevant to the decision consistent with ss 79(2) and 79(3) of the 1998 Act.
I issued a Direction so that the self-insurer could rectify this deficiency, but the letter sent by Mr Macken to Ms Nair on 21 May 2024, which purported to explain the reasons for the insurer’s decision, was just as vague as the dispute notices. In those circumstances, my Direction for the respondent to file its submissions before the applicant was warranted.
Section 4 of the 1987 Act defines injury as follows:
“In this Act-
Injury-
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
In order to be satisfied that an injury has occurred, there must be evidence of a sudden
[7] [2000] NSWCC 12; 19 NSWCCR 496.
[8] (2003) 25 NSWCCR 422, [429].
or identifiable pathological change: Castro v State Transit Authority (NSW),[7] or as stated by Neilson CCJ in Lyons v Master Builders Association of NSW Pty Ltd,[8] “the word ‘injury’ refers to both the event and the pathology arising from it”.
The issue of causation must be determined based on the facts in each case and the application of the common-sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates.[9]
[9] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), [463].
The applicant bears the onus of establishing that she sustained an injury, and in order to discharge that onus, I must feel an actual persuasion of the existence of that fact: Department of Education & Training v Ireland.[10]
[10] [2008] NSWWCCPD 134 (Ireland), [89].
The dispute notices issued by the insurer were very vague and inaccurate. Whilst both notices disputed that the applicant had sustained any injury, Mr Macken eventually agreed when pressed that the respondent did not dispute that the applicant had sustained an injury to tooth 21 on 31 October 2011. He eventually identified that the primary issue related to whether the current pathology in tooth 21 resulted from the accepted injury in 2011.
According to the applicant, he had no problems until August 2023 when the crown broke whilst he was eating a normal hamburger. It seemed to be an innocuous incident. He had difficulty eating and when the self-insurer declined liability, he decided to proceed with the treatment at his own cost.
The clinical notes from Wyong and Gosford Hospitals contain details of an assault in June 2013 that involved the left side of the applicant’s mouth. The teeth were intact and there was no fracture of the mandible.
Dr Cox treated the applicant following the left-sided facial injury that he suffered when playing football in September 2013. X-rays showed a depressed fracture of the left zygomatic arch and a fracture through the left floor of the orbit. There is no medical evidence that the applicant sustained any damage to tooth 21 or any other teeth in this incident.
No assistance is provided from the reports and clinical notes of Drs Alattiyah and Yong, whilst the clinical notes from Kanwal Village Medical Centre only refer to some swelling on the left side of the applicant’s face with tenderness and numbness of the left side of his cheek following the football injury.
The only medical evidence that deals with the current dispute are the reports of Dr Lin. He confirmed that the need for the replacement of the implant crown was due to a fracture of the crown which was most likely caused by a build-up of cyclic fatigue from chewing parafunctional forces.
Dr Lin indicated that if the tooth had not been damaged on 31 October 2011, it was highly unlikely that it would have required repair or removal and it would have been unlikely that a replacement would have been necessary because the demands for maintenance of an implant exceed that of a natural tooth. Alternative options of a removable denture or a fixed partial denture were inferior to restoration of the implant and would not satisfy the chewing requirements. This would be the same as having no tooth and there would be a risk of further biological and mechanical complications that might require removal of the implant resulting in increased costs and further procedures.
Unfortunately, the respondent’s brief submissions are lacking in substance and mirror the inadequacy of the dispute notices. The strongest submission seems to challenge the weight to be given to Dr Lin’s opinion because he was not provided with a history of the facial injury sustained by the applicant in 2013.
The respondent submits that the footballing incident could constitute a parafunctional force as described by Dr Lin. That might well be the case, but if the tooth was damaged in 2013, one would have to question why it did not fracture until 2023. Such a submission is mere speculation and is not supported by any medical evidence.
Further, the respondent’s submissions do not engage with the medical evidence from the hospital and Dr Cox that confirmed that the football injury was to the applicant’s left zygomatic arch and the orbit, and there was no damage to the applicant’s teeth. The fact that the applicant had problems with his other teeth is irrelevant for the current dispute. He is not claiming that the other teeth were injured in 2011 and there is no evidence to suggest that the fracture of the crown was related to the issues elsewhere in the applicant’s mouth. I therefore reject the submission that there is not a “fair climate” for Dr Lin’s opinion.
Therefore, applying the common sense evaluation of the causal chain as described in Kooragang, I am satisfied that the fracture of the crown implant and the need for its replacement resulted from the injury sustained to tooth 21 on 31 October 2011.
Whilst the self-insurer’s notices identified a dispute regarding s 9A of the 1987 Act,
Mr Macken did not identify this as a matter in dispute and made no submissions in that regard. Given that the original injury was accepted by the self-insurer and I have determined that the fracture of the crown implant resulted from the accepted injury, it follows that the applicant’s employment was a substantial contributing factor to his injury and the need for treatment.

Is the proposed treatment reasonably necessary as a result of the injury sustained during the course of the applicant's employment? - s 60 of the 1987 Act

Section 60 of the 1987 Act provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
What constitutes reasonably necessary treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW),[11] Burke CCJ stated:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”[12]
[11] (1986) 2 NSWCCR 32 (Rose).
[12] Rose, [42].
Further, his Honour added:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”[13]
[13] Rose, [47].
His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service[14] and stated:
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”[15]
[14](1997) 14 NSWCCR 233 (Bartolo).
[15] Bartolo, [238].
In Diab v NRMA Ltd,[16] Deputy President Roche questioned this approach and cited Rose with approval. He provided a summary of the principles as follows:
[16] [2014] NSWWCCPD 72 (Diab).
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[17]
[17] Diab, [88] to [90].

Whether the need for reasonably necessary treatment arises from an injury is a question of causation, so one must have regard to the principles discussed in Kooragang.
The respondent submitted that the applicant has not discharged the onus that the treatment was reasonably necessary as a result of the injury but has not explained why that is the case. It is a mere statement that carries no weight, particularly given that there is no medical evidence adduced by the respondent to challenge the opinion of Dr Lin.
The insurer originally accepted liability and paid for an implant crown. What the applicant now seeks is the cost of a replacement implant crown.
There is no doubt that this treatment is accepted as being appropriate and is likely to be effective. Dr Lin has advised why it is the preferred form of treatment and he has explained how other alternatives would not be as effective and could lead to the need for further treatment and associated costs. The claims for $2,000 plus the consultation fee of $115 are both modest and not unreasonable.
The only evidence that is before me is the opinion of Dr Lin, who supported the need for the replacement implant. Whilst the applicant’s statement is silent as to the outcome of the procedure, I believe that the treatment has assisted the applicant’s symptoms and it has proved to be appropriate and effective. This satisfies the relevant factors discussed in Rose and Diab.
Accordingly, I am satisfied that the treatment undertaken by Dr Lin, namely the insertion of a replacement crown implant was reasonably necessary as a result of the injury sustained on 31 October 2011.

Is the respondent liable for the payment of medical expenses? – ss 59 and 59A of the 1987 Act

Section 59 of the 1987 Act relevantly provides:
“59   Definitions (cf former s 10 (2))
In this Division—
…
medical or related treatment includes—
(a)  treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist…
(d)  the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles…”
Section 59A of the 1987 Act relevantly provides:
“59A   Limit on payment of compensation
(1)     Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided after the expiry of the compensation period in respect of the injured worker.
(2)     The compensation period in respect of an injured worker is—
(a)if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be 10% or less, or the degree of permanent impairment has not been assessed as provided by that section, the period of 2 years commencing on—
(i)the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
(ii)the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker)…
(6)     This section does not apply to compensation in respect of any of the following kinds of medical or related treatment—
(a)the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries)…”
The respondent’s primary submissions that the cost of the medical treatment was not recoverable because there was no evidence that the treatment was exempt from the operation of the section were difficult to understand and were of no assistance. The submissions seem to completely ignore the contents of s 59A(6) of the 1987 Act that deals with the exclusion of artificial aids including teeth, and the evidence of Dr Lin.
In the submission in reply, Mr Macken expanded on his submissions. He submitted that the tooth was still in situ. I am confused by such a submission, as in Dr Lin’s undated report[18], Dr Lin indicated that he extracted the tooth.
[18] Application, p 18.
Mr Macken also submitted that the treatment did not involve the provision of teeth. Again, I am somewhat confused. If that was the case, then what type of treatment did the applicant receive?
Section 59 of the 1987 Act defines medical treatment to include treatment by a registered dentist and includes the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles. The reference to teeth and other artificial aids clearly means that this includes dentures and implants, rather than natural teeth.
In the alternative, Mr Macken submits that the medical evidence does not address how the treatment involved any "artificial aid", and the respondent relies on the definition of “artificial aid” as described in Baldacchino. Unfortunately, his submission does not expand on how this decision supports the respondent’s case.
The respondent submits that it is not open to the Commission to simply infer that treatment involves the provision of an artificial aid in circumstances where the medical evidence does not specifically address it. In my view, the absence of an explanation that a crown implant is an artificial aid is of no major concern.
The meaning of artificial aids was considered in Herbornv Spotless Services Australia Limited.[19]In that matter, the respondent disputed its liability to pay for a lumbar decompression and fusion involving a bone graft, pedicle screws and interbody cages on the grounds that it was not an artificial aid.
[19] [2020] NSWWCCPD 24, (Herborn).
Deputy President Wood was satisfied that the surgery involved an artificial aid. She stated:
“The surgery must be considered in its entirety, without any artificial distinction between the decompression procedure and the spinal fusion. The surgery as a whole was intended to at least provide a degree of relief of the appellant’s symptoms. Any benefit from the surgery was expected to result in an amelioration of the appellant’s disability.
I accept the appellant’s submission that the bone graft, pedicle screws and interbody cages together form an aid that, when fixed to the appellant’s spine, operate together to achieve the purpose of alleviating the appellant’s disability. The unchallenged evidence from A/Prof Davies is that the insertion of this combined fixture is a necessary element of the surgery and is thus not merely incidental to this major surgery. Such a conclusion is consistent with Macfarlan JA’s observation in Baldacchino that an artificial aid can comprise a number of materials.
A/Prof Davies explained the manner in which the bone would be taken from the pelvis, roughened and inserted between the vertebrae. The bone needed to be kept in place by the pedicle screws and cages. While the hardware may well be generically manufactured for use in spinal fusion surgery, the surgical skill in assembling the combination of materials and the affixing of those materials must require some specific adaptation. The process described by A/Prof Davies does not reflect anything less specific to the needs of the patient than the manufacture of hearing aids, provision of crutches, or indeed a knee replacement.”[20]
[20] Herborn, [108] – [110].
As someone who has a couple of crown implants, I am acutely aware of the treatment. A crown implant is not a real tooth and is usually made of porcelain. The root of the tooth is removed and is replaced with a titanium implant to which the crown is attached. Both the crown and the implant are manufactured. They are artificial, not a real tooth. The submission that the tooth is still in situ is incorrect.
Mr Macken submits that if the treatment involves the provision of an artificial aid, then the respondent would only be liable for the cost of the aid and not the cost of the medical treatment.
In Baldacchino, the employer disputed that a total knee replacement was an artificial aid. Macfarlan JA (Payne AJ and Simpson AJA agreeing) considered the meaning of “artificial aids” and stated:
“I accept that ‘artificial aids’ must, as the appellant submits, work to ameliorate the effect of a person’s disability and may comprise a single object or a composite of objects operating together. However, a knee replacement has these characteristics. According to the parties’ agreement, during the surgery the ends of the femur and the tibia are replaced with an introduced material and a piece of plastic is inserted between the bones as reconstructed. Plainly these materials are designed to facilitate the movement and use of the knee after the operation, therefore easing the patient’s disability. Their ‘provision’ (see s 59A(6)(a)) cannot occur without a surgical operation. The cost of the operation therefore falls within the statutory provision.
The appellant’s submission that the article or object must be ‘complete in itself’ cannot be accepted. No such requirement is evident in the statutory words or supported by any authority to which the Court was referred. As the respondent pointed out, many ‘artificial aids’ involve a process of connection of articles to the body in a manner comparable to that involved in knee replacements:
‘for example, the provision of artificial teeth can involve implanting teeth to support removable dentures; the provision of artificial limbs can involve the insertion of supporting structures in bones to which artificial limbs can be attached; and the provision of spectacles can be replaced by the implanting [of] artificial lenses…’ ”[21]
[21] Baldacchino, [29] – [30].
In respect of the cost of the procedure, His Honour stated:
“The appellant’s fallback argument on the appeal is that, if compensation is payable to the respondent in respect of the cost of the materials to be used in the knee replacement operation, the cost of the surgery is nevertheless not covered. I reject this argument. As indicated in [29] above, the ‘provision of’ the artificial aid in the form of a replacement knee requires surgery. That surgery is therefore within s 59A(6)(a). I should not be taken to be adopting a general rule that the cost of surgery is always a cost of “[t]he provision of … artificial aids”, as there may be cases where the insertion of material into a person’s body is only an incidental part of major surgery. Each case must be decided on its own facts.”
Their Honours also acknowledged the useful definition of an “artificial aid” in Thomas:
“Hutley JA (with whom Hope JA agreed) said at 220-221:
‘An artificial aid, in my opinion, is anything which has been specially constructed to enable the effects of the disability (the result of injury) to be overcome. The other articles in the subclause, crutches, artificial members, eyes or teeth, are illustrations of this. Because of [the applicant’s] injury, she has lost all capacity for natural progression. The modifications to the car have given her some capacity to transport herself. It was suggested that, on this basis, the car was an artificial aid, and every person whose capacity to walk was diminished could have a car supplied at the expense of the insurer. It is not necessary to decide whether this conclusion follows. The essential quality of an artificial aid is that it is an aid specially tailored to the needs of a person, which flowed from the injury. The artificial aid is specific to an injured person. These modifications have this quality. As an artificial aid is useless unless the person for whom it is provided can use it, the provision of an artificial aid includes the provision of instruction in its use’ (emphasis added).”[22]
[22] Baldacchino, [13].
The submission that the respondent is only liable for the cost of the implant and not the surgery to insert it is untenable and ignores the comments in Baldacchino on which Mr Macken relies.
The provision of this aid requires its insertion in the mouth of the patient. It is specially constructed to suit the patient to enable him or her to overcome the disabling effects of the injury to the tooth. One could not expect the applicant to purchase the tooth and leave it in a box in a drawer.
I am satisfied that the replacement crown implant is an artificial aid, such that s 59A of the 1987 Act does not apply. Accordingly the respondent will be liable to pay the medical expenses claimed by the applicant.

Self-insurer’s conduct

Finally, I consider it appropriate to make some comments about the self-insurer’s conduct in this claim.
According to s 194(2) of the 1998 Act, compliance with a direction issued to insurers by SIRA is a condition of an insurer’s licence issued under the Act. The failure by an insurer to comply with these standards can constitute an offence under s 209 of the 1987 Act.
SIRA issues guidance documents regarding the management of claims by insurers. These are readily accessible on the SIRA website.
The general or overarching principles regarding disputes are described in Insurer Guidance GN 1.5. It provides:

“Procedural fairness

An insurer is to consider the principles of procedural fairness when making decisions under the legislation that impact a worker’s rights, interests or entitlements.
Principles of procedural fairness are not concerned with reviewing the merits of a decision but with the procedure to be observed in reaching a decision. This includes, but is not limited to:
1.     giving the worker notice of the issues in detail
2.     giving the worker the opportunity to respond to any adverse material and provide new information for the insurer to consider
3.     ensuring the decision-maker is not, or is not reasonably perceived to be, biased to an outcome
4.     providing the worker with all the information the insurer has considered in making its decision, regardless of whether that information supports the decision or not.”

Insurer Guidance GN 8.1 relevantly provides an overview regarding insurer decisions as follows:

“Claims Management Principles

When making decisions, an insurer is to have regard to the overarching claims management principles in SIRA’s Standards of practice. Principle 1 of the overarching claims principles require insurers to undertake the management of claims in an empathetic manner intended to maximise fairness for workers by:
· ensuring that workers understand their rights, entitlements and responsibilities, and making clear what workers and employers can expect from insurers and other scheme participants, and
· ensuring workers are afforded procedural fairness, and that decisions are made on the best available evidence, focused on advancing the worker’s recovery and return to work.
‘Note: The Commission has raised the adequacy of dispute notices in a number of matters, highlighting the importance of providing a full and proper explanation of the issues in dispute, in plain language.
See for example: Gibson v Royal Life Saving Society of Australia [2009] NSWWCCPD 137; Hobden v South East Illawarra Area Health Service [2010] NSWWCCPD 13’….

Considerations

In summary, insurers should have in place current policies, procedures and protocols which ensure and maintain that:
·         all decisions are soundly based and supported by evidence
·         all decisions have been peer-reviewed and/or authorised by staff with the relevant skills and experience before the decision is communicated with the worker
·         all decision notices are easy to understand and compliant with legislative and regulatory requirements
·         the worker continues to be supported during and after the decision notice has been issued
·         the principles of procedural fairness have been considered
·         potential disputes are prevented and minimised, where possible.”

Decision notices

A quality decision notice should:
· contain all information as required by section 79 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and clause 38 of the Workers Compensation Regulation 2016 (2016 Regulation) (see ‘decision notice requirements’ outlined below)
·         be specific to the claim
·         raise all issues relevant to the dispute (this includes not raising irrelevant issues)
·         be in plain language and readily understood
·         include the date when the decision comes into effect, allowing for any postal processing where required

The date specified in the decision notice is to be the date the insurer makes the decision.”

According to the SIRA Claims Management Guide, “The Standards of Practice: Expectations for insurer claims administration and conduct (Standards) together with the Workers compensation guidelines (Guidelines) set clear, consistent, accessible and enforceable expectations that will guide insurer conduct and claims management”.
The purpose of the SIRA Standards of Practice Guidelines (April 2022) are to “support and encourage insurers to have effective claims management practices to help deliver positive experiences and outcomes for workers, employers and the people of NSW”. They focus on fairness and empathy, transparency and participation and timeliness and efficiency.
The applicant provided medical evidence in support of his small claim. The self-insurer had previously accepted liability in respect of the crown implant following the injury on
31 October 2011. What the applicant sought was a replacement for his already damaged tooth. It was no different to a replacement hearing aid or revision hip or knee surgery.
The self-insurer issued two extremely vague dispute notices and did not engage with the applicant’s dentist as required. It did not qualify its own independent dentist to seek an opinion. It merely alleged that the applicant had not discharged the onus.
It declined to resolve the matter at the preliminary conference before Member McGrowdie. It sought leave to issue Directions for Production, which delayed the finalisation of the dispute. The self-insurer insisted on a determination and did not take into account my preliminary view regarding the likely outcome of the dispute.
Mr Macken was concerned that the respondent should make its submissions first, but this was necessary, given the lack of a proper explanation of the issues in dispute. Only the notes of Watervale Dental were referred to in the respondent’s final submissions, and only in respect of the problems that the applicant had experienced with his other teeth. The submissions were not persuasive and the outcome of the dispute was not surprising.
There are some relevant principles and standards that seem to have been ignored by the self-insurer in the management of this matter. They are:
(a)     the insurer is to ensure that workers are afforded procedural fairness and decisions made on the best available evidence, focused on advancing the worker’s recovery (Principle 1) – the best available evidence was that of Dr Lin;
(b)     the insurer is to ensure transparent and timely communication of the reasons and information relied upon for decisions, and facilitating right of reply, and prompt, independent review of decisions (Principle 2) – the explanation of its reasons was inadequate at all times;
(c)     the insurer is to progress claims without unnecessary investigation, dispute or litigation (Principle 3) – the self-insurer requested Directions for Production that delayed the finalisation of the matter and it insisted on an unnecessary and costly determination of the dispute which was of minimal value;
(d)     when determining initial liability for an injury, insurers are to gather the relevant evidence, consult with key stakeholders (including the employer and worker) and ensure that the decision is made in a timely manner and communicated appropriately (Standard 3) – the self-insurer did not consult with the applicant and his treating dentist and seemed to gather no relevant evidence;
(e)     when determining liability for medical or related treatment, insurers are to obtain and consider all relevant information, consult with the worker and relevant parties as required and ensure that the decision is soundly based, made in a timely manner and communicate appropriately. Decisions should be in a fair and transparent manner and include communication with the worker, nominated treating doctor and other relevant parties (Standard 4.1) – the self-insurer did not do any of these things in a proper manner, if at all;
(f)     the insurer is to advise the relevant parties of the outcome and reasons for a decision regarding liability for medical or related treatment (Standard 4.3) – the self-insurer did not provide an adequate explanation for its decision at any stage of the claim, and
(g)     the insurer is required to genuinely participate in Commission preliminary conferences, conciliations/arbitrations and mediations in good faith and with a view to achieving the timely and effective resolution of disputes (Standard 22) – the self-insurer was in attendance at the conferences but did not genuinely participate with a view to achieving an expeditious and effective resolution.

The Commission has a statutory obligation to give effect to the guiding principle that is to be applied to practice and procedure and the parties are under an obligation to participate in the processes and to comply with directions and orders. Further, the procedure should be implemented to ensure that the cost to the parties and to the Commission is proportionate to the importance and complexity of the dispute.
Section 42 of the Personal Injury Act 2020 relevantly provides:
“42 Guiding principle to be applied to practice and procedure
(1)    The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
(2)     The Commission must seek to give effect to the guiding principle when it—
(a) exercises any power given to it by this Act or the Commission rules, or
(b) interprets any provision of this Act or the Commission rules.
(3)     Each of the following persons is under a duty to co-operate with the Commission to give effect to the guiding principle and, for that purpose, to participate in the processes of the Commission and to comply with directions and orders of the Commission—
(a) a party to proceedings in the Commission,
(b)an Australian legal practitioner or other person who is representing a party in proceedings in the Commission.
(4)     In addition, the practice and procedure of the Commission should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject-matter of the proceedings….”
The matter started out as a Form 1 Application worth only $2,115 and should have been finalised at the first preliminary conference before Member McGrowdie, but the self-insurer insisted on the matter being transferred and dealt with as a Form 2. Two Members were required to deal with this small dispute and the Commission staff were required to undertake additional tasks. It was not an important or complex dispute that required a determination of liability.
The self-insurer requested Directions for Production that caused additional cost to the Commission and delayed the finalisation of the matter. The documents were not the subject of any substantial submissions.
The self-insurer failed to obtain any evidence to challenge the applicant’s claim and insisted on an unnecessary and costly determination. Such actions were inconsistent with the objects of the Commission to provide a timely and cost effective resolution of disputes.
Given the unsatisfactory conduct of the insurer in respect of the management of this claim, I will refer the matter to the Principal Registrar to consider whether the self-insurer should be reported to SIRA.

FINDINGS

The applicant sustained injury to tooth 21 arising out of or in the course of his employment on 31 October 2011.
The applicant’s employment was a substantial contributing factor to his injury.
The applicant requires medical treatment as a consequence of his injury and the respondent is liable to pay reasonably necessary medical expenses.
The full crown implant of tooth 21 and a consultation with Warnervale Dental were reasonably necessary treatment as a result of the injury arising out of or in the course of the applicant’s employment on 31 October 2011.
The applicant is not precluded from receiving compensation by reason of s 59A(6) of the 1987 Act.

ORDERS

The respondent to pay the applicant’s medical expenses of $2,115 pursuant to s 60 of the 1987 Act.

[2024] NSWPIC 324

20 June 2024