McLeod v Precast Systems Pty Ltd - [2024] NSWPIC 343

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McLeod v Precast Systems Pty Ltd [2024] NSWPIC 343
APPLICANT:	Mitchell McLeod
RESPONDENT:	Precast Systems Pty Ltd
MEMBER:	Fiona Seaton
DATE OF DECISION:	26 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for proposed lumbar fusion surgery; whether surgery was reasonably necessary as a result of accepted injury; whether expert opinions in a fair climate; Paric v John Holland (Constructions) Pty Ltd; Held – the lumbar spine surgery proposed is reasonably necessary treatment as a result of injury, the respondent is to pay for the costs of the surgery pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The L5/S1 anterior lumbar interbody fusion and L5/S1 posterior decompression and fusion surgery proposed by Dr Bhisham Singh is reasonably necessary medical treatment as a result of the applicant’s lumbar spine injury pursuant to s 60 of the Workers Compensation Act 1987. The Commission orders: 2. The respondent is to pay the future medical hospital and related expenses of the L5/S1 anterior lumbar interbody fusion and L5/S1 posterior decompression and fusion surgery proposed by Dr Bhisham Singh in accordance with his request dated 22 October 2023 at the gazetted rates.

STATEMENT OF REASONS

BACKGROUND

The applicant Mr Mark McLeod was employed as a concreter with the respondent Precast Systems Pty Ltd in Armidale. He has an accepted psychological injury as a result of this employment which is not the subject of these proceedings. The applicant injured his back as a result of the nature and conditions of employment with the respondent for which liability is accepted. The deemed date of injury is 27 February 2019.
On 22 October 2023 the applicant’s treating orthopaedic surgeon Dr Bhisham Singh sought approval for two stages of surgery, the first being L5/S1 anterior lumbar interbody fusion and the second being L5/S1 posterior decompression and fusion.
On 7 November 2023 the respondent issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 disputing liability for L5/S1 anterior lumbar interbody fusion, L5 posterior decompression and fusion and a vascular screening examination. The dispute was confirmed on 28 March 2024 following an internal review.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (Commission) on 17 April 2024 the applicant claims future medical expenses for the surgeries recommended by Dr Singh pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The dispute was listed for conciliation/arbitration for determination of whether the surgery proposed by Dr Singh is reasonably necessary as a result of injury pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the issue in dispute is whether the surgery proposed by Dr Singh is reasonably necessary as a result of injury pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing before the Commission on 7 June 2024 by audio visual link.…

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.

Continue reading McLeod v Precast Systems Pty Ltd

Details

AGLC: McLeod v Precast Systems Pty Ltd [2024] NSWPIC 343
Case: [2024] NSWPIC 343
Decision Date: 26 June 2024

CaseChat Overview and Summary

McLeod brought a claim against Precast Systems Pty Ltd in relation to proposed lumbar fusion surgery. The dispute was heard by the Queensland District Court. McLeod argued that the surgery was reasonably necessary as a result of an injury sustained during employment, while Precast Systems Pty Ltd contested the necessity of the surgery and its connection to the injury.

The court had to decide whether the proposed lumbar fusion surgery was reasonably necessary as a result of the accepted injury, and whether the expert opinions presented were in a fair climate. The court considered the evidence and expert opinions provided by both parties and examined the relevant legislation under the Workers Compensation Act 1987. The court also referred to the case of Paric v John Holland (Constructions) Pty Ltd to determine the appropriate legal principles.

The court found that the lumbar fusion surgery proposed was reasonably necessary treatment as a result of the injury. The court was satisfied that the expert opinions presented were in a fair climate and that the evidence supported the necessity of the surgery. Therefore, the court held that Precast Systems Pty Ltd is responsible for paying the costs of the surgery pursuant to section 60 of the Workers Compensation Act 1987. The respondent is to bear the costs of the surgery as a result of the accepted injury sustained by the claimant during employment.

Orders