Pandya v Specialist Diagnostic Services Pty Ltd - [2024] NSWPIC 278

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pandya v Specialist Diagnostic Services Pty Ltd [2024] NSWPIC 278
APPLICANT:	Divyaben Nilesh Pandya
RESPONDENT:	Specialist Diagnostic Services Pty Ltd
MEMBER:	Lea Drake
DATE OF DECISION:	27 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant sought a finding that she was injured by the nature and conditions of her employment and that liability for the surgical intervention recommended by her treating specialist be ordered against the respondent; Held – the applicant suffered a neck injury as a result of the nature and conditions of her employment; surgical intervention is reasonably necessary and arises from the injury suffered by the applicant from the nature and conditions of her employment; award in favour of the applicant for the payment of section 60 expenses incurred for the treatment of an injury sustained to the applicant’s neck, including the payment for surgery and ancillary treatment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a neck injury as a result of the nature and conditions of her employment throughout her employment including the lifting incidents which occurred on 17 April 2019. 2. The applicant’s underlying degenerative condition was aggravated, accelerated, exacerbated or deteriorated in the course of her employment. 3. The surgical intervention recommended by Dr Nair, the applicant’s treating specialist, is reasonably necessary and arises from the injury suffered by the applicant from the nature and conditions of her employment throughout her employment, including the lifting incidents which occurred on 17 April 2019. 4. The applicant’s employment with the respondent was the main contributing factor to her present incapacity. The Commission orders: 1. There will be an award in favour of the applicant for the payment of s 60 expenses incurred for the treatment of an injury sustained to the applicant’s neck in the employ of the respondent, including the payment for surgery and ancillary treatment recommended by Dr Nair.

STATEMENT OF REASONS

BACKGROUND

Ms Divyaben Nilesh Pandya (the applicant) was employed by Specialist Diagnostic Services Pty Ltd (the respondent). She commenced work with the respondent in April 2013 as a pathology collector. She was promoted to the position of Area Coordinator in 2018.
The applicant had no relevant medical issues prior to commencing employment with the respondent.
The applicant alleges that she experienced a gradual onset of pain as a result of the nature and conditions of her employment throughout her employment including heavy lifting incidents on 17 April 2019. After this heavy lifting she alleges that she experienced a significant increase in the pain in her neck into her shoulder and travelling down her right arm. She resigned her employment in December 2020.
Apart from unsuccessfully attempting a return to work for a month in 2021 for another employer in the same role, the applicant has remained unemployed and under medical treatment.
The applicant now wishes to proceed with the surgical intervention recommended by Dr Nair, liability for which is denied by the respondent.

MATTERS IN DISPUTE

There is…

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 278
Decision Date: 27 May 2024

CaseChat Overview and Summary

The applicant, Pandya, brought proceedings against Specialist Diagnostic Services Pty Ltd, seeking a finding that she had sustained an injury by the nature and conditions of her employment. Pandya also sought that the respondent be ordered to pay for the surgical intervention recommended by her treating specialist. The matter was heard in the relevant tribunal. The primary issue before the tribunal was whether Pandya had sustained an injury by the nature and conditions of her employment. A related issue was whether the recommended surgical intervention arose from the injury sustained by the applicant.

The tribunal found that Pandya had indeed suffered a neck injury as a result of the nature and conditions of her employment. Pandya's injury was sustained during the course of her employment, and it was determined that the recommended surgical intervention was reasonably necessary and arose from the injury. The tribunal concluded that the injury sustained by Pandya was work-related and that the surgical intervention was a direct consequence of that injury. Consequently, the tribunal awarded Pandya the payment of section 60 expenses incurred for the treatment of her neck injury, including the cost of the surgery and ancillary treatment.

Orders