Martis v Dnata Catering Australia - [2021] NSWPIC 11

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Martis v Dnata Catering Australia [2021] NSWPIC 11
APPLICANT:	Andreas Martis
RESPONDENT:	Dnata Catering Australia
MEMBER:	Rachel Homan
DATE OF DECISION:	8 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for section 60 expenses in relation to proposed cervical spine surgery; injury to cervical spine disputed; whether surgery proposed is reasonably necessary as a result of injury; Held– applicant sustained injury pursuant to section 4(b)(ii); the proposed surgery is reasonably necessary as a result of injury; respondent to pay the costs of and incidental to the surgery.
DETERMINATIONS MADE:	1. The applicant sustained an injury to his cervical spine as a result of the nature and conditions of his employment with the respondent pursuant to s 4(b)(ii) of the Workers Compensation Act 1987. 2. The C5/C6 & C6/C7 Anterior Cervical Discectomy and Fusion surgery proposed by Dr Donnellan is reasonably necessary as a result of the injury.
ORDERS MADE	The respondent to pay the costs of and incidental to the proposed surgery in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Andreas Martis (the applicant) was employed by Dnata Catering Australia (the respondent) to provide aircraft catering services from 29 July 2002 onwards. The applicant claims that he sustained an injury to his left shoulder and cervical spine as a result of the nature and conditions of his employment.
Liability for an injury to the applicant’s left shoulder was accepted by the respondent’s insurer. On 5 December 2018, the applicant sought approval for cervical spine surgery proposed by his neurosurgeon, Dr Michael Donnellan.
Liability for an injury to the applicant’s cervical spine and to pay the costs of the surgery was declined in a dispute notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 24 January 2019. That decision was maintained in a further notice dated 25 June 2019.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 13 November 2020. The applicant seeks compensation under s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the C5/C6 & C6/C7 Anterior Cervical Discectomy and Fusion surgery proposed by Dr Donnellan.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 3 February 2021. The applicant was represented by Mr Ross Stanton of counsel instructed by Ms Sarah Bell-Bagguley. The applicant was assisted by an interpreter in the Greek language. The respondent was represented by Mr Andrew Parker of counsel instructed by Ms Mai Nguyen. A representative from iCare was also present.
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 have 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…

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: [2021] NSWPIC 11
Decision Date: 8 March 2021

CaseChat Overview and Summary

The case of Martis v Dnata Catering Australia was brought before the court to resolve a dispute regarding workers' compensation expenses. The applicant sought reimbursement for proposed cervical spine surgery costs under section 60 of the relevant legislation. The respondent contested the claim, arguing that the applicant's injury to the cervical spine was not a result of employment, and that the proposed surgery was not reasonably necessary.

The court had to determine whether the applicant's injury to the cervical spine was sustained pursuant to section 4(b)(ii) of the legislation, and if the proposed surgery was reasonably necessary as a result of the injury. Additionally, the court had to consider whether the applicant had met the burden of proof in establishing the necessity of the surgery and the associated costs.

In its decision, the court found that the applicant had sustained an injury to the cervical spine pursuant to section 4(b)(ii) of the legislation. The court accepted that the injury was a result of the applicant's employment, and that the proposed surgery was reasonably necessary. The court held that the respondent was liable to pay the costs of and incidental to the surgery as the applicant had discharged the burden of proof. The court ordered the respondent to pay the applicant the costs of the proposed cervical spine surgery and any incidental expenses associated with the procedure.

Orders