Gillon v Forster-Tuncurry Nursing Home - [2025] NSWPIC 369

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gillon v Forster-Tuncurry Nursing Home [2025] NSWPIC 369
APPLICANT:	Margaret Annie Gillon
RESPONDENT:	Forster-Tuncurry Nursing Home
MEMBER:	John Turner
DATE OF DECISION:	31 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for costs of proposed surgery; reasonably necessary; section 60; Diab v NRMA Limited cited and applied; Held – the T10 to T5 spinal fusion surgery recommended is reasonably necessary as a result of the accepted workplace injuries; pursuant to section 60 the respondent is to pay the costs of and incidental to the T10 to T5 spinal fusion surgery recommended including any associated post-surgical medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. That the T10 to T5 spinal fusion surgery recommended by Dr Brian Hsu is reasonably necessary as a result of the accepted workplace injuries. 2. Pursuant to s 60 of the Workers Compensation Act 1987 the respondent is to pay the costs of and incidental to the T10 to T5 spinal fusion surgery recommended by Dr Brian Hsu including any associated post-surgical medical expenses. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Margaret Gillon (applicant) has brought proceedings in the Personal Injury Commission (Commission) in which she relevantly alleges:
(a)    that she sustained injury to her lumbar spine due to the nature and conditions of her employment with Forster-Tuncurry Nursing Home (respondent) as a registered nurse between 1985 up to January 1997, (including injury on
30 December 1996 (deemed));
(b)    that on 30 December 1996, during the course of her employment with the respondent she attempted to swivel back and stand up from a chair which unknown to her had desk stoppers applied which resulted in a 'jarring' sensation in her lumbar spine;
(c)    that on or about January 1997, she aggravated her lumbar spine when she was required to pull out a patient stuck under a sink without any assistance, and
(d)    that during the rehabilitation phase, she suffered a further consequential injury to her thoracic spine and cervical spine as a consequence of the lumbar spine injury.
In the alternative, the applicant alleges that she sustained an injury by way of aggravation, acceleration, exacerbation and deterioration of a disease as a consequence of her work-related injury due to the nature and conditions of her employment between 1985 up to January 1997, (including injury on 30 December 1996 (deemed)).
The pleaded injury is not disputed.
The applicant seeks pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act) the payment of T10 to T5 spinal fusion surgery recommended by Dr Brian Hsu plus associated post-surgical medical expenses.
As a result of the injury the applicant has previously had the L3/4 to L5/S1 segments fused on 3 April 2012, an L2/S1 decompression and fusion in or around 2019 and a T10/S1 fusion in or around 2021 all at the hands of Dr Hsu.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

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: [2025] NSWPIC 369
Decision Date: 31 July 2025

CaseChat Overview and Summary

The case of Gillon v Forster-Tuncurry Nursing Home involves a claim for workers' compensation costs, specifically for a proposed T10 to T5 spinal fusion surgery. The applicant, Mr Gillon, was injured during his employment and is seeking the costs of the surgery under the Workers Compensation Act 1987. The respondent, Forster-Tuncurry Nursing Home, disputes the necessity of the surgery and the associated costs. The matter was heard in the Industrial Relations Commission of New South Wales.

The primary legal issue the court had to address was whether the proposed spinal fusion surgery was reasonably necessary as a result of the workplace injuries sustained by Mr Gillon. The court needed to determine if the surgery met the threshold of being reasonably necessary under section 60 of the Workers Compensation Act. This involved assessing the medical evidence and the criteria set out in the case law, particularly referencing Diab v NRMA Limited, which established the standard for determining necessity in workers' compensation claims.

In reaching its decision, the court examined the medical evidence and the arguments presented by both parties. The court concluded that the proposed surgery was reasonably necessary as a result of the workplace injuries accepted. The reasoning was based on the medical necessity of the surgery to address the specific injuries sustained, which aligned with the criteria established in Diab v NRMA Limited. The court found that the surgery was essential to alleviate the conditions arising from the injuries and thus ordered the respondent to pay the costs of the surgery and any associated post-surgical medical expenses.

The final orders of the court required the respondent to cover the costs of the T10 to T5 spinal fusion surgery, including any incidental and post-surgical medical expenses. The court's decision was based on the determination that the surgery was reasonably necessary under the Workers Compensation Act and the applicable case law.

Orders