Lewthwaite v State of New South Wales (Southern NSW Local Health District) - [2025] NSWPIC 398

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lewthwaite v State of New South Wales (Southern NSW Local Health District) [2025] NSWPIC 398
APPLICANT:	Michelle Lorraine Lewthwaite
RESPONDENT:	State of New South Wales (Southern NSW Local Health District)
MEMBER:	John Turner
DATE OF DECISION:	12 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for medical and treatment expenses; reasonably necessary; injury; consequential condition; sections 4 and 60; Kooragang Cement Pty Ltd v Bates, Briginshaw v Briginshaw, King v Collins, Nominal Defendant v Clancy, Davis v Council of the City of Wagga Wagga, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty Limited, Watson’s Culcairn Hotel Pty Ltd v Dwyer, Diab v NRMA Limited, and Murphy v Allity Management Services Pty Ltd cited and applied; Held – there is an award for the respondent in respect to the alleged injury to the right knee; the applicant sustained a consequential right knee condition due to the accepted left knee injury; the proposed total right knee replacement surgery is reasonably necessary as a result of the injury; the respondent is to pay pursuant to section 60 the costs of and incidental to total right knee replacement surgery.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent in respect to the alleged injury to the right knee on 19 April 2012. 2. That the applicant sustained a consequential right knee condition due to the accepted left knee injury. 3. That the proposed total right knee replacement surgery is reasonably necessary as a result of the injury. 4. The respondent is to pay pursuant to s 60 of the Workers Compensation Act 1987 the costs of and incidental to total right knee replacement surgery. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Michelle Lewthwaite (applicant) has brought proceedings in the Personal Injury Commission (Commission) in which she relevantly alleges that she sustained injury to both her knees on 19 April 2012 when she slipped on a wet ramp whilst in the course of her employment with State of New South Wales (Southern NSW Local Health District) (respondent).
The relief which the applicant seeks is the costs of and ancillary to bilateral total arthroplasty including patella of both knees pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act).
The respondent has accepted liability for the left total knee replacement surgery in respect to which a direction was made on 26 May 2025. The respondent disputes liability in respect to the right knee.

ISSUES FOR DETERMINATION

The following issues remain in dispute:
(a) whether the applicant sustained the alleged injury to her right knee as defined by s 4 of the 1987 Act;
(b) whether the applicant sustained a consequential condition of the left knee, and
(c) whether the proposed treatment is reasonably necessary as a result of injury: s 60 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.

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Details

AGLC: Lewthwaite v State of New South Wales (Southern NSW Local Health District) [2025] NSWPIC 398
Case: [2025] NSWPIC 398
Decision Date: 12 August 2025

CaseChat Overview and Summary

The matter of Lewthwaite v State of New South Wales (Southern NSW Local Health District) involved a claim for medical and treatment expenses under the Workers Compensation Act 1987. The applicant sought compensation for expenses related to a proposed total right knee replacement surgery, which they argued was reasonably necessary as a consequence of an accepted injury to their left knee. The dispute was adjudicated in the NSW Civil and Administrative Tribunal.

The primary legal issue before the court was whether the proposed total right knee replacement surgery was reasonably necessary as a result of the injury to the left knee. This required an assessment of the nature of the injury and its consequences, as well as the necessity of the proposed surgery in light of the legislative provisions of the Workers Compensation Act 1987. The court needed to determine if the applicant’s proposed right knee surgery qualified as a reasonably necessary treatment under section 4 of the Act, and if so, whether the respondent was liable to pay the costs of the surgery under section 60.

The tribunal reviewed the evidence and applicable legal principles, including the definition of 'reasonably necessary' as established in previous cases such as Kooragang Cement Pty Ltd v Bates, Briginshaw v Briginshaw, King v Collins, and others. The tribunal concluded that the applicant had sustained a consequential condition to their right knee as a result of the accepted injury to the left knee, and that the proposed total right knee replacement surgery was reasonably necessary. This finding was based on the balance of probabilities and the evidence presented. Consequently, the tribunal held that the respondent was liable to pay for the costs of the surgery.

As a result of the tribunal’s determination, the respondent was ordered to pay the costs of and incidental to the total right knee replacement surgery. The tribunal made clear that the decision was based on the specific circumstances of the case and the evidence provided, and it underscored the importance of the reasonable necessity of medical treatment in the context of workers compensation claims.

Orders