Nightingale v Subee Pty Ltd - [2024] NSWPIC 569

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nightingale v Subee Pty Ltd [2024] NSWPIC 569
APPLICANT:	Colleen Evelyn Nightingale
RESPONDENT:	Subee Pty Limited
MEMBER:	Jane Peacock
DATE OF DECISION:	15 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Undisputed injury; treatment sought in the form of a trial of CBD oil; disputed by the respondent on the basis it is not reasonably necessary; Held – award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the applicant under s 60 of the Workers Compensation Act1987 in respect of the proposed treatment in the form of a three month trial of CBD oil as recommended by Dr Jin and found to be reasonably necessary as a result of injury on 23 February 2018. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the Application), as amended, Ms Colleen Nightingale (the applicant) seeks a determination that treatment proposed by Dr Jin in the form of a trial of CBD oil is reasonably necessary as a result of injury on 23 February 2018.
The respondent is Subee Pty Ltd (the respondent). The respondent was insured at the relevant time for the purposes of workers compensation.
The respondent denied liability for the claim for the proposed treatment.

ISSUES FOR DETERMINATION

There is no dispute that the applicant suffered injury to her lumbar spine at work when she slipped and fell on 23 February 2018.
She now seeks a determination that treatment in the form of CBD oil is reasonably necessary as a result of injury on 23 February 2018. This treatment is proposed as a three month trial by the applicant’s treating pain management physician Dr Jin. At the arbitration and by consent the applicant amended the application to seek the proposed treatment in the form of CBD oil for a three month trial period.
The respondent disputes that the proposed treatment is reasonably necessary as a result of the injury on 23 February 2018. The respondent does not dispute that the proposed treatment results from the injury but rather the dispute lies in whether the treatment is reasonably necessary at all. The respondent seeks that an award be made in favour of the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission), admitted by consent, and considered in making this determination:
For the applicant:
(a) The Application, as amended, and attached documents.
For the respondent:
(a) Reply and attached documents.

Oral evidence

The applicant did not seek leave to adduce oral evidence. The respondent did not seek leave to cross-examine the applicant.
It is noted that by consent the applicant amended her statement dated 24 May 2024 to clarify typographical errors of “2022” instead of “2023” for the fusion surgery as well as referring to problems “after” rather than “before” (amendments were transcribed and recorded). These amendments were able to be made by consent and the respondent did not require the applicant…

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: [2024] NSWPIC 569
Decision Date: 15 October 2024

CaseChat Overview and Summary

The case of Nightingale v Subee Pty Ltd arose from a dispute over the treatment of an injury sustained by the applicant, Nightingale, in the course of employment. Nightingale sought workers' compensation for his injury and requested a specific treatment involving the use of CBD oil. Subee Pty Ltd, the respondent, contested the necessity of this treatment, arguing that it was not reasonably necessary for the applicant’s recovery. The matter was brought before the court to determine whether the treatment sought by Nightingale was a necessary component of his rehabilitation and compensation.

The primary legal issue before the court was whether the proposed treatment, which involved the use of CBD oil, constituted a reasonably necessary part of the applicant's rehabilitation and recovery process. The court needed to balance the applicant's right to seek treatment with the respondent's duty to provide reasonably necessary care under the workers' compensation framework. The court also had to consider the broader context of the legislative intent behind the workers' compensation laws, particularly focusing on the principle of providing appropriate and necessary medical care to injured workers.

In its determination, the court examined the evidence presented regarding the benefits and risks of CBD oil as a treatment option for Nightingale's injury. The court concluded that the evidence supported the view that the treatment was reasonably necessary for the applicant's recovery and rehabilitation. The court found that the respondent had not successfully demonstrated that the treatment was not reasonably necessary, and therefore, the applicant was entitled to the proposed treatment as part of his compensation. The court awarded the applicant the costs associated with the treatment of CBD oil.

Consequently, the court made an order in favour of Nightingale, mandating that Subee Pty Ltd provide the necessary funding for the treatment of CBD oil as part of the applicant's rehabilitation and compensation package. This decision underscores the importance of considering innovative treatment options in workers' compensation cases, provided they are reasonably necessary for the injured worker's recovery.

Orders