Hawkes v The Disability Trust - [2024] NSWPIC 201

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hawkes v The Disability Trust [2024] NSWPIC 201
APPLICANT:	Rebecca Hawkes
RESPONDENT:	The Disability Trust
MEMBER:	Jane Peacock
DATE OF DECISION:	22 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Left elbow injury; respondent denied liability for proposed left elbow release surgery; evidence weighed in the balance and on the balance of probabilities it was determined that the proposed surgery was reasonably necessary as a result of the work injury; Held – award for the applicant for medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the applicant under s 60 of the Workers Compensation Act1987 in respect of the proposed surgery in the form of a tennis elbow release plus associated expenses as found to reasonably necessary as a result of injuries on 4 February 2023 and 15 February 2023.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the Application), Ms Rebecca Hawkes (the applicant) seeks a determination that surgical treatment in the form of a left tennis elbow release is reasonably necessary as a result of injuries on 4 February 2023 and 15 February 2023.
The respondent is The Disability Trust (the respondent). The respondent was insured at the relevant time for the purposes of workers compensation.
The respondent denied liability for the claim for the proposed surgery.

ISSUES FOR DETERMINATION

There is no dispute that the applicant suffered injury to her left forearm and left elbow at work on 4 February 2023 and 15 February 2023.
She now seeks a determination that surgery in the form of a left tennis elbow release is reasonably necessary as a result of injury on 4 February 2023 and 15 February 2023.
The respondent disputes that the proposed surgery is reasonably necessary as a result of the injuries on 4 February 2023 and 15 February 2023. The respondent also disputes that the proposed surgery is reasonably necessary at all. The respondent seeks that an award be made in favour of the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission, admitted by consent, and considered in making this determination:
For the applicant
a.     the Application and attached documents, and
b.     full copy of the general practitioner’s clinical records which were tendered by email at the arbitration hearing and as directed filed with an Application to Admit Late Documents by 4.00pm the following day and which were so filed.
For the respondent
a.     Reply and attached documents.

Oral evidence

The applicant did not seek leave to adduce oral evidence. The respondent did not seek leave to cross-examine the applicant.

FINDINGS AND REASONS

The applicant suffered injury to her left arm including her left elbow on two occasions (4 February 2023 and 15 February 2023) when she was struck by a patient under her care in the course of or arising out of her employment as a disability support worker with the respondent.
There is no dispute that the incidents on 4 February 2023 and 15 February 2023 took place as…

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: [2024] NSWPIC 201
Decision Date: 22 April 2024

CaseChat Overview and Summary

The parties involved in this case were Hawkes, the applicant, and The Disability Trust, the respondent. Hawkes sought compensation for a left elbow injury sustained during his employment, which the respondent had previously denied liability for. The crux of the dispute was whether the proposed left elbow release surgery was reasonably necessary as a result of the work injury. This matter was heard in the relevant Australian court, which was tasked with deciding the legal issues presented by the case.

The court was required to determine whether the proposed surgery for Hawkes' left elbow was reasonably necessary as a result of the work injury. To reach a decision, the court had to weigh the evidence presented and determine the balance of probabilities. This involved assessing the medical evidence, the applicant's testimony, and any other relevant information to determine the cause of the injury and the necessity of the proposed surgery.

After carefully considering the evidence presented, the court concluded that, on the balance of probabilities, the proposed left elbow release surgery was reasonably necessary as a result of the work injury. The court found that the applicant had demonstrated that the injury and subsequent surgery were directly related to his employment. Consequently, the court ruled in favour of the applicant, awarding compensation for the medical expenses associated with the proposed surgery.

In light of the court's decision, the final orders were made in favour of the applicant. The Disability Trust was required to compensate Hawkes for the medical expenses related to the proposed left elbow release surgery, as it was determined to be reasonably necessary as a result of the work injury.

Orders