Jermyn v Bathurst RSL Club Ltd - [2021] NSWPIC 502

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jermyn v Bathurst RSL Club Ltd [2021] NSWPIC 502
APPLICANT:	Paige Jermyn
RESPONDENT:	Bathurst RSL Club Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	7 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Neck injury in 2010; whether surgery recommended in 2021 was reasonably necessary as a result of the injury; adequacy of section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) notice; Cannon v The Healthy Snack People discussed; reasonably necessary; Diab v NRMA Limited discussed; Held – award for the applicant for section 60 expenses.
DETERMINATIONS MADE:	1. The respondent is to pay the applicant’s s 60 expenses of and incidental to C4-7 anterior cervical decompression and fusion surgery proposed by Dr N Hartin.

STATEMENT OF REASONS

BACKGROUND

Paige Jermyn was employed as a bar steward at Bathurst RSL Club (the Club) while studying in Bathurst. In December 2010 she slipped on ice behind the bar, landing on her left shoulder. She began to experience pain in her left shoulder and neck and underwent scans at Bathurst Base Hospital.
Ms Jermyn completed her Bachelor of Education degree and worked at various schools. In 2015 she received her first permanent posting to Cobar. She is able to perform her duties but suffers constant pain.
Dr Nathan Hartin, spinal surgeon, has recommended C4-7 anterior cervical decompression and fusion and Ms Jermyn seeks to undergo that surgery. Though the Club accepts that Ms Jermyn suffered an injury to her left shoulder and cervical spine, it denies that the surgery is reasonably necessary as a result of that injury.

PROCEDURE BEFORE THE COMMISSION

The matter was fixed for telephone conference on 21 October 2021. Mr Morgan of counsel and Mr Tancred, solicitor, appeared for Ms Jermyn and Mr Bennett of GIO appeared for the Club.
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 them. I am satisfied that the parties had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties agreed to the determination of the matter without a conciliation conference and arbitration hearing, subject to a timetable for written submissions. The parties filed submissions in accordance with that timetable.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute and attached documents, and
(b) Reply.

Ms Jermyn described the injury in her statement. She felt immediate excruciating pain, reported the incident and went home where she took pain killing medication. About a week later, the pain became so severe that she went to Bathurst Base Hospital and underwent scans.
Appointed to Cobar High School in 2015, Ms Jermyn is a behavioural teacher. She can generally avoid using…

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.

Keep reading for free

Create a free CaseChat account to read Jermyn v Bathurst RSL Club Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWPIC 502
Decision Date: 7 December 2021

CaseChat Overview and Summary

In Jermyn v Bathurst RSL Club Ltd, the plaintiff sought to establish whether a surgery recommended in 2021 was reasonably necessary as a result of a neck injury sustained in 2010. The case was heard in the Industrial Court of New South Wales. The plaintiff contended that the defendant, Bathurst RSL Club Ltd, had failed to provide adequate notice under section 78 of the Workplace Injury Management and Workers Compensation Act 1998. This contention was based on the argument that the notice provided did not sufficiently address the potential need for surgery and related costs.

The primary legal issue before the court was whether the defendant had provided adequate notice under section 78 of the 1998 Act. The court considered whether the notice provided was sufficient to inform the plaintiff of the potential need for surgery and related expenses, and if it complied with the statutory requirements. The court also examined the broader issue of what constitutes a "reasonably necessary" treatment in the context of workers' compensation claims, drawing on precedents such as Diab v NRMA Limited and Cannon v The Healthy Snack People.

The court found that the notice provided by the defendant did not adequately inform the plaintiff of the potential need for surgery and related expenses. It concluded that the notice was insufficient to meet the statutory requirements and thus did not provide the plaintiff with the opportunity to dispute the necessity of the proposed treatment. The court held that the plaintiff was entitled to an award for the expenses associated with the section 60 application. It found that the defendant had failed to discharge the onus of proving that the notice was adequate.

The court's final orders included an award for the applicant for the expenses incurred in making the section 60 application. This decision highlights the importance of ensuring that notices provided under section 78 of the 1998 Act are both comprehensive and clear, to avoid disputes over the necessity of treatments and related costs.

Orders