Nejad v CJ Formwork Pty Ltd (in liquidation) - [2022] NSWPIC 227

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nejad v CJ Formwork Pty Ltd (in liquidation) [2022] NSWPIC 227
APPLICANT:	Mostafa Afzale Nejad
RESPONDENT:	CJ Formwork Pty Ltd (in liquidation)
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	19 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for proposed surgery at C5/6 level; application of section 60(5) Workers Compensation Act 1987; conflicting medical opinion as to whether surgery is reasonably necessary; Held: Surgery is reasonably necessary as result of workplace injury. Diab v NRMA Ltd applied.
DETERMINATIONS MADE:	The Commission declares: 1. Pursuant to section 162 of the Workers Compensation Act 1987 that the employer, CJ Formwork Pty Ltd entered into a contract with Insurance and Care NSW (known as icare) in respect of any liability under the Workers Compensation Act 1987. 2. The injury on 22 November 2019 took place before the commencement of the winding up of the employer. The Commission determines: 3. That the proposed C5/6 fusion surgery as recommended by Dr Bhisham Singh is reasonably necessary treatment as a result of the work-related injury on 22 November 2019. 4. The respondent is to pay the costs of the proposed surgery and associated treatment costs at the applicable workers compensation gazetted rates.

STATEMENT OF REASONS

BACKGROUND

Mostafa Afzale Nejad, the applicant, was employed with the respondent, CJ Formwork Pty Ltd, as a construction formworker when he sustained various injuries including to his cervical spine with a date of injury of 22 November 2019.
The Application to Resolve a Dispute (ARD) was amended to delete the reference to “both shoulders” and instead insert “right shoulder”. Also, the claim for weekly compensation was discontinued.
The claim for compensation now being pressed is confined to the costs of and incidental to the surgery proposed by Dr Bhisham Singh comprising of a cervical decompression/ fusion at C5/6 with prothesis inserted.
The respondent’s counsel confirmed at the arbitration hearing that the only issue in dispute is whether this proposed surgery is reasonably necessary.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 14 April 2022. Mr Phillip Perry, counsel, instructed by Mr Nicholas Bruno, solicitor, appeared for
Mr Afazle Nejad, who was present. Mr Dewashish Adhikary, counsel, instructed by
Mr Adel Saleh, solicitor, and Ms Melinda Hatfield and Mr Daniel Amin from the insurer appeared for the respondent. The proceedings were conducted by MS Teams audio-visual platform due to the COVID-19 situation.
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 parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this…

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: [2022] NSWPIC 227
Decision Date: 19 May 2022

CaseChat Overview and Summary

Nejad v CJ Formwork Pty Ltd (in liquidation) involved a claim for workers' compensation where the claimant sought approval for proposed surgery at the C5/6 level. The dispute was heard in the Industrial Court of Queensland. The core issue before the court was whether the proposed surgery was reasonably necessary for the treatment of injuries sustained in the course of employment, and whether the claimant had discharged the onus of proof under section 60(5) of the Workers Compensation Act 1987. This section requires that the claimant establish on the balance of probabilities that the proposed treatment is reasonably necessary.

The court examined conflicting medical opinions regarding the necessity of the surgery. The claimant's medical expert argued that the surgery was necessary due to the severity of the workplace injury, while the defendant's expert maintained that the surgery was not required. The court applied the principles from the case of Diab v NRMA Ltd, which established that the decision on the necessity of treatment is a question of fact to be determined based on the evidence presented. The court concluded that the claimant had successfully discharged the onus of proof, finding that the surgery was reasonably necessary to treat the injuries caused by the workplace incident.

In light of the findings, the court granted the claimant's application for approval of the proposed surgery. The defendant's objections were dismissed, and the court ordered that the costs of the surgery be paid by the defendant. The decision underscores the importance of a thorough assessment of medical evidence and the application of established legal principles in determining the necessity of medical treatment in workers' compensation claims.

Orders