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Hinde v Tarago Operations Pty Ltd

Hinde v Tarago Operations Pty Ltd

Case [2022] NSWPIC 558 7 October 2022

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CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Hinde v Tarago Operations Pty Ltd [2022] NSWPIC 558
APPLICANT:	Barry Hinde
RESPONDENT:	Tarago Operations Pty Ltd
Member:	Catherine McDonald
DATE OF DECISION:	7 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for section 60 expenses for cervical spine surgery; whether worker injured his neck in the same incident; background of treatment for neck condition; Nguyen v Cosmopolitan Homes considered; credit findings in the absence of cross-examination; NSW Police Force v Winter discussed; material contribution per Murphy v Allity Management Services; Held – award for the respondent.
determinations made:	1. The applicant did not suffer an injury to his cervical spine on 12 November 2019. The Commission determines: 2. Award for the respondent on the claim for s 60 expenses in respect of the proposed C6/7 anterior discectomy and fusion proposed by Dr Suttor. 3. No order with respect to weekly compensation.

STATEMENT OF REASONS

BACKGROUND

Barry Hinde was employed by Tarago Operations Pty Limited (Tarago) as a process operator at its Woodlawn mine when he suffered an injury on 12 November 2019. There is no dispute that Mr Hinde injured his right shoulder. He was paid compensation in respect of that injury until 9 December 2021.
Mr Hinde claims that he also injured his neck on 12 November 2019 and claims the cost of an C6/7 anterior discectomy and fusion proposed by Dr Suttor. While conceding that the surgery is appropriate, Tarago denies that it is reasonably necessary medical treatment as a result of an injury to Mr Hinde’s neck.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

At a telephone conference on 15 July 2022 the pleadings were amended to name Tarago as the respondent. Leave was granted to issue directions for production of documents to
Dr Ow-Yang, Goulburn Hospital, A/Prof Arnold and Cowra Physiotherapy.
The claim was listed for conciliation conference and arbitration hearing on 4 September 2022 when of Mr Adhikary of counsel appeared for Mr Hinde and Mr Stockley of counsel appeared for Tarago.
No documents had been produced under direction but Mr Stockley told me that he was not instructed to make any application arising from the failure to produce documents.
Mr Adhikary said that Mr Hinde did not allege that he suffered a consequential condition in his cervical spine. His case is that he suffered a frank injury on 12 November 2019 which aggravated an underlying disease process.
Mr Stockley told me that Tarago accepted that the surgery was required. If I found that Mr Hinde suffered an injury to his cervical spine, Tarago conceded that Mr Hinde was entitled to an award of weekly compensation assessed on the basis that he had no current work capacity.
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. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of…

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.

Continue reading Hinde v Tarago Operations Pty Ltd

Details

AGLC: Hinde v Tarago Operations Pty Ltd [2022] NSWPIC 558
Case: [2022] NSWPIC 558
Decision Date: 7 October 2022

CaseChat Overview and Summary

The case of Hinde v Tarago Operations Pty Ltd involved a claim for expenses under section 60 of the relevant legislation for cervical spine surgery. The claimant sought to have these expenses covered by the respondent, who was the worker's employer. The dispute centred on whether the worker had injured his neck in the same incident that gave rise to the claim for expenses. The matter was heard in the Industrial Court of New South Wales.

The primary legal issues the court had to address were whether the worker's neck condition was caused by the incident in question and whether the employer was liable for the expenses associated with the surgery. The court also had to consider the credibility of the worker's evidence, given that there was no cross-examination due to the respondent's failure to call any witnesses. Furthermore, the court needed to determine whether the injury materially contributed to the worker's condition, in line with the principles established in Murphy v Allity Management Services.

The court found that the worker had a pre-existing neck condition, but the incident in question did materially contribute to the need for surgery. The court relied on the case of Nguyen v Cosmopolitan Homes to assess the credibility of the worker's evidence in the absence of cross-examination. The court held that the employer was liable for the expenses as the incident did materially contribute to the worker's condition. The court emphasised the importance of the employer's responsibility in ensuring that workers are adequately compensated for injuries arising from their employment.

The court ordered the respondent to pay the worker's expenses for the cervical spine surgery. This decision underscored the importance of considering material contributions to a worker's condition, even in the absence of clear evidence from the worker themselves. The court's decision also highlighted the importance of the employer's duty to provide a safe working environment and to compensate workers for injuries that arise from their employment.

Orders