Prpic v Robert Wayne Grimley t/as Manning Auto Salvage - [2021] NSWPIC 115

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Prpic v Robert Wayne Grimley t/as Manning Auto Salvage [2021] NSWPIC 115
APPLICANT:	John Prpic
RESPONDENT:	Robert Wayne Grimley t/as Manning Auto Salvage
MEMBER:	Ms Jacqueline Snell
DATE OF DECISION:	11 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for costs payable under section 60 of the 1987 Act for proposed surgical treatment in the nature of arthroscopic left shoulder cuff repair as a result of injury sustained to the applicant’s right shoulder with a deemed date of injury of 11 February 2018; consequential left shoulder injury placed in issue; Held– the applicant has sustained consequential injury to his left shoulder and the proposed surgical treatment in the nature of arthroscopic left shoulder cuff repair is reasonably necessary treatment resulting from that injury.
DETERMINATIONS MADE:	1. The applicant has sustained consequential injury to his left shoulder. 2. The applicant requires medical and related treatment as a result of the consequential injury he has sustained to his left shoulder. The arthroscopic left shoulder cuff repair proposed by Associate Professor Haber is reasonably necessary treatment for the consequential injury the applicant has sustained to his left shoulder. The respondent is to pay the cost of the arthroscopic left shoulder cuff repair and associated expenses as recommended by Associate Professor Haber in accordance with s 60 of the Workers compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

John Prpic (the applicant) was employed by Robert Wayne Grimley t/as Manning Auto Salvage (the respondent) as a tow truck driver between September 2013 and 11 February 2018. The applicant is currently 58 years of age.
The applicant sustained a non-work injury to his right arm and shoulder in or about October 2009 and came to right shoulder replacement in August 2010. In or about January 2018 the applicant suffered a septic infection in his right shoulder during the course of his employment with the respondent. Liability is accepted for this injury to the applicant’s right shoulder.
The applicant initially came under the orthopaedic specialist care of Dr White. The applicant came to surgery on 2 March 2018, and with complication resulting from infection the applicant remained in hospital for some three months. He came to further surgery on 3 April 2018.
The applicant subsequently came under the orthopaedic specialist care of Associate Professor Haber (A/P Haber) and came to further surgery on 25 May 2018 which saw removal of his original right shoulder prosthesis. The applicant participated in an “hospital in the home program” which saw him placed on an antibiotic drip medication. The applicant then came to revision right shoulder replacement on 15 August 2018 and remained on antibiotic medication until the end of 2018.
With the applicant’s left shoulder having now become problematic, A/P Haber has recommended arthroscopic rotator cuff repair, liability for which is declined with injury placed in issue. The insurer of the respondent has issued notices dated 22 October 2020 and 26 October 2020 in accordance with s 78 of the Workplace Injury Management Act 1998

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: [2021] NSWPIC 115
Decision Date: 11 May 2021

CaseChat Overview and Summary

The applicant in this case sought costs payable under section 60 of the Workers Compensation Act 1987 for proposed surgical treatment in the nature of an arthroscopic left shoulder cuff repair. The treatment was to address an injury sustained to the applicant's right shoulder, with a deemed date of injury of 11 February 2018. The consequential left shoulder injury was a matter in dispute. The case was heard in the Industrial Relations Commission of New South Wales.

The legal issues before the court were whether the applicant had sustained a consequential injury to his left shoulder and whether the proposed surgical treatment for the left shoulder was reasonably necessary as a result of that injury. The primary focus was on determining the causal link between the initial injury to the right shoulder and the subsequent injury to the left shoulder, as well as the necessity of the proposed treatment.

The court determined that the applicant had indeed sustained a consequential injury to his left shoulder. It found that the proposed surgical treatment in the nature of an arthroscopic left shoulder cuff repair was reasonably necessary as a result of that injury. The court considered the evidence presented by both parties, including medical reports and the applicant's account of the injury and its impact on his daily activities. The court was satisfied that the treatment was necessary and reasonable given the nature and extent of the consequential injury.

The court ordered that the costs for the proposed surgical treatment in the nature of an arthroscopic left shoulder cuff repair be paid under section 60 of the Workers Compensation Act 1987. The decision was based on the findings that the applicant had sustained a consequential injury to his left shoulder and that the proposed treatment was reasonably necessary as a result of that injury.

Orders