Herborn v Spotless Services Australia Limited

[2020] NSWWCCPD 24

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:

Herborn v Spotless Services Australia Limited [2020] NSWWCCPD 24

APPELLANT:

Stephen John Herborn

FIRST RESPONDENT:

Spotless Services Australia Limited

SECOND RESPONDENT:

Precise Air Group Pty Ltd

INSURER:

AAI Limited trading as GIO

FILE NUMBER:

A1-2576/19

ARBITRATOR:

Mr J Wynyard

DATE OF ARBITRATOR’S DECISION:

25 October 2019

DATE OF APPEAL DECISION:

24 April 2020

SUBJECT MATTER OF DECISION:

Section 59A(6)(a) of the Workers Compensation Act 1987 – whether a bone graft, pedicle screws and interbody cage to be implanted in surgery involving a lumbar decompression and spinal fusion constitutes an “artificial aid” – Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216, Pacific National Pty Ltd v Baldacchino [2018] NSWCA 281 considered and applied

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

HEARING:

On the papers

REPRESENTATION:

Appellant:
Mr P Stockley, counsel
Masselos & Co Lawyers

First and Second Respondents:
Mr T Ainsworth, solicitor
HWL Ebsworth

ORDERS MADE ON APPEAL:

1.     The Arbitrator’s Certificate of Determination dated 25 October 2019 is revoked and the following findings and orders are made in its place:

(a) The provision of a bone graft with pedicle screws and interbody cages to be implanted in a spinal nerve root decompression and fusion is an “artificial aid” for the purposes of s 59A(6)(a) of the Workers Compensation Act 1987.

(b) The respondents are to pay the costs of and incidental to the lumbar decompression and spinal fusion as proposed by Associate Professor Mark Davies pursuant to s 60 of the Workers Compensation Act 1987.

INTRODUCTION

1. This appeal concerns a claim by Mr Stephen Herborn (the appellant) for treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) in respect of proposed surgery. The surgery, which was proposed by the appellant’s treating surgeon Associate Professor Mark Davies, neurosurgeon, was described by A/Prof Davies as a “re-do” lumbar laminectomy, pedicle screw internal fixation and fusion.

2. The appellant sought approval for the surgery from both Spotless Services Australia Limited (the first respondent) and Precise Air Group Pty Ltd (the second respondent). Initially, the claim was denied on the basis that the surgery was not reasonably necessary as required by s 60 of the 1987 Act. Ultimately, when the matter came to arbitration, the issue between the parties was limited to whether the proposed surgery was for the provision of “artificial aids” in accordance with s 59A(6)(a) of the 1987 Act. Section 59A precludes payment of treatment expenses incurred beyond two years after weekly payments have ceased but subs 59A(6)(a) provides, among other things, that if the treatment is for the provision of artificial aids, the preclusion in s 59A does not apply.

BACKGROUND

1. The appellant initially suffered an injury to his lumbar spine in 1990 when he was self-employed. He came under the care of Dr John Sheehy, neurosurgeon, who performed a lumbar laminectomy in 1991. The surgery was largely successful, in that the appellant’s sciatic pain resolved, but the…