Hanna v Aus Inventive Design Pty Ltd - [2021] NSWPIC 210

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hanna v Aus Inventive Design Pty Ltd [2021] NSWPIC 210
APPLICANT:	Laoun Hanna
RESPONDENT:	Aus Inventive Design Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	25 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for compensation pursuant to section 60 for proposed dental treatment; undisputed bilateral carpal tunnel injury found by AMS to have resulted in 74% WPI; whether consequential dental condition due to being unable to maintain adequate oral hygiene and xerostomia induced by anti-depressant medication; significant pre-existing dental condition; extensive surveillance suggesting greater ability to use upper limbs than claimed; Held- Commission satisfied that applicant sustained a consequential dental condition; Murphy v Allity Management Services Pty Ltd and Taxis Combined Services (Victoria) Pty Ltd v Schokman applied; proposed treatment reasonably necessary as a result of injury.
DETERMINATIONS MADE:	1. The dental treatment proposed by Dr Rex Liu is reasonably necessary as a result of the work injury.
ORDERS MADE	1. The respondent to pay the costs of and incidental the treatment proposed by Dr Liu in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Laoun Hanna (the applicant) was employed by Aus Inventive Design Pty Ltd (the respondent) as a welder. As a result of the nature and conditions of his employment with the respondent on and prior to 5 September 2012, the applicant sustained an injury in the nature of carpal tunnel syndrome to his left and right upper extremities.
In previous proceedings before the former Workers Compensation Commission, Approved Medical Specialist (AMS), Dr David Crocker assessed the applicant as having 74% whole person impairment (WPI) as a result of the injury to his upper extremities.

In 2015, the applicant sought compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for dental treatment said to be reasonably necessary as a result of the injury.

Liability for a consequential dental condition was disputed by the respondent’s insurer in a notice issued pursuant to former s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 13 November 2015. The applicant sought review of that notice on 22 October 2020.
The present proceedings were commenced by an Application to Resolve a Dispute lodged in the Commission on 17 March 2021.
On 7 April 2021, the respondent’s solicitors wrote to the applicant advising that the decision to dispute liability in respect of the alleged dental condition was maintained.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 17 May 2021. The applicant was represented by Mr Craig Tanner of counsel, instructed by Ms Emily Delaney. The respondent was represented by Mr Stephen Harris, a legal practitioner.
During the conciliation conference, leave was granted to the applicant to amend the Application to Resolve a Dispute to discontinue a claim for incurred s 60 expenses as well as a claim for compensation in respect of a disputed cervical spine injury.
I am satisfied that the parties…

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: [2021] NSWPIC 210
Decision Date: 25 June 2021

CaseChat Overview and Summary

The applicant in this case, Ms Hanna, sought compensation under section 60 for proposed dental treatment. The respondent, Aus Inventive Design Pty Ltd, contested the claim. The dispute was heard in the Workers Compensation Division of the Queensland Civil and Administrative Tribunal (QCAT). Ms Hanna alleged that she had sustained a dental condition as a consequence of an industrial injury, which resulted in a bilateral carpal tunnel injury and the need for anti-depressant medication. This medication, in turn, caused xerostomia, leading to difficulties in maintaining adequate oral hygiene.

The legal issues before the Tribunal included whether Ms Hanna's dental condition was a consequence of her industrial injury and, if so, whether the proposed dental treatment was reasonably necessary. The Tribunal had to consider the extent of Ms Hanna's ability to use her upper limbs and the impact of the injury on her oral hygiene and dental health. The respondent argued that Ms Hanna's pre-existing dental condition and the surveillance evidence suggested she had greater ability to use her upper limbs than claimed.

The Tribunal found that Ms Hanna sustained a consequential dental condition as a result of her industrial injury. Applying the principles from Murphy v Allity Management Services Pty Ltd and Taxis Combined Services (Victoria) Pty Ltd v Schokman, the Tribunal was satisfied that the dental condition was a consequence of the injury. The Tribunal accepted that the proposed treatment was reasonably necessary as a result of the injury, despite the extensive surveillance evidence suggesting greater ability to use her upper limbs. The Tribunal ordered the respondent to pay for the proposed dental treatment.

Orders