| 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…
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- Case
- [2021] NSWPIC 502
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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