DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:
Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49
APPELLANT:
Cheryle Murphy
RESPONDENT:
Allity Management Services Pty Ltd
INSURER:
QBE Workers Compensation (NSW) Ltd
FILE NUMBER:
A1-759/15
ARBITRATOR:
Ms E Beilby
DATE OF ARBITRATOR’S DECISION:
26 May 2015
DATE OF APPEAL DECISION:
24 August 2015
SUBJECT MATTER OF DECISION:
Hospital and medical expenses under s 60 of the Workers Compensation Act 1987; whether surgery reasonably necessary as a result of work injury; relevance of subsequent non-work injury; assessment of evidence; application to rely on fresh evidence or additional evidence on appeal; s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:
Deputy President Bill Roche
HEARING:
On the papers
REPRESENTATION:
Appellant:
John McGuire & Associates
Respondent:
Gillis Delaney Lawyers
ORDERS MADE ON APPEAL:
1. The appellant worker’s application to rely on fresh evidence or additional evidence on appeal is refused.
2. The Arbitrator’s determination of 26 May 2015 is revoked and the matter remitted to a different Arbitrator for re-determination.
BACKGROUND
The appellant worker, Cheryle Murphy, worked for several years as a kitchen hand at the Coastal Waters Aged Care Facility at Worrowing Heights on the south coast of New South Wales. The respondent employer, Allity Management Services Pty Ltd, took over management of the facility in 2014.
On 29 June 2014, Ms Murphy slipped and fell on wet tiles in the facility’s kitchen, landing on her right side and injuring her right knee, right hip, right hand and right shoulder. Liability was initially accepted and compensation paid. The dispute on appeal concerns a claim for the cost of surgery under s 60 of the Workers Compensation Act 1987 (the 1987 Act) to Ms Murphy’s right shoulder performed on 8 December 2014. The background to that claim is as follows.
On referral from her general practitioner, Dr Sandra Moe, Ms Murphy came under the care of Dr Cossetto, orthopaedic surgeon, who she first saw (for her right shoulder) on 11 August 2014. After arranging for an MRI of the right knee and right shoulder on 15 August 2014, Dr Cossetto recommended surgery for Ms Murphy’s knee and conservative treatment for her shoulder.
On 18 August 2014, Ms Murphy saw Dr Miniter, orthopaedic surgeon, at the request of the respondent’s insurer, QBE Workers Compensation (NSW) Ltd (QBE). In his report of that date, Dr Miniter said that the proposed surgery on the right knee should be expedited. He said that the right shoulder did not require surgical treatment and, apart from a very short course of physiotherapy, required no management. (It should be noted that, at that stage, surgery had not been recommended for the shoulder.)
On 27 August 2014, Dr Cossetto wrote to Dr Moe (copy to QBE) stating that the MRI of the right shoulder revealed a significant bursal-sided partial thickness tear of the greater tuberosity footprint that appeared of significant depth, associated with an anteroinferior acromial…
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
Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49
Case
[2015] NSWWCCPD 49
Decision Date
CaseChat Overview and Summary
The case before the court involved a dispute between Murphy, a worker, and Allity Management Services Pty Ltd, his employer, regarding hospital and medical expenses under section 60 of the Workers Compensation Act 1987. The primary issue was whether certain surgery undertaken by the worker was reasonably necessary as a result of a work injury. Additionally, the court had to consider the relevance of a subsequent non-work injury in determining the necessity of the surgery and the assessment of evidence presented. The matter was brought before the court under section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998.
The court examined whether the worker's application to rely on fresh evidence or additional evidence on appeal should be granted. The court found that the application was not justified as the evidence provided did not meet the criteria for fresh or additional evidence as per section 352(6). The court also scrutinised the Arbitrator's determination from 26 May 2015, finding that it contained errors in the assessment of evidence and the application of the law. Consequently, the Arbitrator's determination was revoked, and the matter was remitted to a different Arbitrator for re-determination.
In summary, the court refused the worker's application to rely on fresh evidence or additional evidence on appeal, revoked the previous Arbitrator's determination, and remitted the matter to a different Arbitrator for re-determination. This decision underscored the importance of correctly assessing evidence and applying the relevant legal principles in workers' compensation cases. The court's final orders included the refusal of the application for fresh or additional evidence and the remitting of the matter to a different Arbitrator for re-determination.
Orders
Orders of the court
1. The appellant worker’s application to rely on fresh evidence or additional evidence on appeal is refused.
2. The Arbitrator’s determination of 26 May 2015 is revoked and the matter remitted to a different Arbitrator for re-determination.