Jordan v Heidelberg Materials Australia Pty Ltd - [2025] NSWPIC 392

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jordan v Heidelberg Materials Australia Pty Ltd [2025] NSWPIC 392
APPLICANT:	Yass Jordan
RESPONDENT:	Heidelberg Materials Australia Pty Ltd
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	11 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for section 60 expenses in respect of proposed left C4/C5 cervical foraminotomy; whether the surgery was reasonably necessary as a result of the accepted injury; Held – left C4/C5 cervical foraminotomy surgery is reasonably necessary treatment as a result of the accepted cervical spine injury; order that the respondent to pay the costs of and incidental to the surgery pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. Respondent to pay the applicant’s s 60 expenses in respect of the treatment proposed by Dr Ganesh Shiva, namely, a left C4/C5 cervical foraminotomy (described as a direct spinal decompression (via a partial or total laminectomy or a partial vertebrectomy), or a posterior spinal release, 1 motion segment) and associated treatment expenses as a result of the injury on 22 November 2022 on production of accounts and/or receipts. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Yass Jordan (the applicant), was employed by Heidelburg Materials Australia Pty Ltd (the respondent) as a truck driver. The respondent was insured by GIO General Limited (the insurer) at all relevant times.
In the course of his employment on 22 November 2022 the applicant slipped on a wet and soapy floor. A further incident occurred on 31 January 2024 when the applicant was pulling a concrete hose from a truck.
The applicant made a claim for compensation on 16 February 2024.
The insurer issued a s 78 Notice dated 8 March 2024 declining the claim for compensation in respect of the injury to neck, back and left shoulder on 22 November 2022.
In a Review Notice dated 28 August 2024, the insurer withdrew the decision of 8 March 2024 and reliance on ss 4, 9A, 4(b), 33, 59 and 60 of the Workers Compensation Act 1987 (1987 Act) as the insurer was satisfied that the applicant had a compensable workplace injury.
The applicant made a claim for medical treatment in relation to a proposed left‑sided C4/C5 foraminotomy (described as a direct spinal decompression (via a partial or total laminectomy or a partial vertebrectomy), or a posterior spinal release, 1 motion segment) and associated expenses recommended by Dr Ganesh Shiva on 30 September 2024. For convenience, I shall refer to the proposed treatment as left‑sided C4/C5 foraminotomy.
The respondent disputed liability in respect of the claim for surgery to the cervical spine in a s 78 notice dated 30 October 2024 and a review notice dated 11 March 2025.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the surgery to the cervical spine, namely a left-sided C4/5 foraminotomy proposed by Dr Shiva, is reasonably necessary (s 60 of the 1987 Act) as a result…

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: [2025] NSWPIC 392
Decision Date: 11 August 2025

CaseChat Overview and Summary

The applicant, Jordan, lodged a claim for expenses under section 60 of the Workers Compensation Act 1987, seeking reimbursement for a proposed left C4/C5 cervical foraminotomy. The respondent, Heidelberg Materials Australia Pty Ltd, contested the claim, arguing that the surgery was not reasonably necessary as a result of the accepted injury. The case was heard by the Workers Compensation Regulator, who was tasked with determining whether the proposed surgery was reasonably necessary treatment for the injury sustained by the applicant.

The primary legal issue before the court was whether the proposed left C4/C5 cervical foraminotomy was reasonably necessary treatment for the injury sustained by the applicant, and therefore reimbursable under section 60 of the Workers Compensation Act 1987. The court needed to assess the evidence provided by both parties, including medical reports and expert opinions, to determine the necessity of the surgery. The respondent argued that the surgery was not required, while the applicant maintained that it was essential for the treatment of the accepted injury.

In reaching its decision, the court considered the medical evidence presented, including the applicant's history of the injury and the recommendations of the treating medical practitioners. The court found that the proposed left C4/C5 cervical foraminotomy was reasonably necessary treatment for the injury sustained by the applicant, and therefore reimbursable under section 60 of the Workers Compensation Act 1987. The court was satisfied that the surgery was necessary to alleviate the symptoms and complications arising from the accepted injury, and that it was a reasonable and appropriate course of treatment. The court ordered the respondent to pay the costs of and incidental to the surgery, as well as the costs of the proceeding.

As a result of the court's decision, the applicant is entitled to reimbursement for the expenses associated with the proposed left C4/C5 cervical foraminotomy, as well as the costs of the proceeding. The respondent is ordered to pay the costs of the surgery and the proceeding, in accordance with section 60 of the Workers Compensation Act 1987. The court's determination provides clarity for both parties regarding the reimbursability of the proposed surgery under the relevant legislation.

Orders