Quigg v Woolstar Pty Ltd - [2021] NSWPIC 505

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Quigg v Woolstar Pty Ltd [2021] NSWPIC 505
APPLICANT:	Robert Quigg
RESPONDENT:	Woolstar Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	8 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for compensation pursuant to section 60 of the Workers Compensation Act 1987 for costs of and incidental to left reverse total shoulder replacement surgery; injury in the nature of aggravation of pre-existing osteoarthritis accepted; whether effects of aggravation ceased in dispute; Murphy v Allity Management Services Pty Ltd applied; Held - proposed surgery is reasonably necessary as a result of injury; award for the applicant.
DETERMINATIONS MADE:	1. The left reverse total shoulder replacement surgery proposed by Dr Steve Marchalleck is reasonably necessary as a result of the injury on 7 March 2019.
ORDERS MADE:	1. The respondent to pay the costs of and incidental to the left reverse total shoulder replacement surgery in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Robert Quigg (the applicant) was employed as a storeman by Woolstar Pty Ltd (the respondent). The applicant sustained an injury to his left shoulder when he tripped and fell whilst walking up a set of stairs on 7 March 2019.
On 10 February 2020, the applicant’s orthopaedic surgeon, Dr Steve Marchalleck, sought approval for a left reverse total shoulder replacement.
The respondent’s insurer denied liability for the surgery in a dispute notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 2 March 2020.
Liability to pay compensation pursuant to s 60 of the Workers Compensation Act 1987 in respect of the injury remained disputed in a further notice issued on 15 October 2020.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 23 September 2021. The applicant seeks compensation for the costs of and incidental to the proposed left reverse total shoulder replacement surgery.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) whether the proposed left reverse total shoulder replacement surgery is reasonably necessary as a result of the injury on 7 March 2019.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing by telephone on 30 November 2021. The applicant was represented by Ms Eraine Grotte of counsel, instructed by Mr John Peisley. The respondent was represented by Ms Sarah Warren of counsel, instructed by Mr Robert Passas.
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…

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 505
Decision Date: 8 December 2021

CaseChat Overview and Summary

Quigg v Woolstar Pty Ltd involved a claim for workers' compensation under section 60 of the Workers Compensation Act 1987. The applicant, Quigg, sought compensation for the costs associated with a left reverse total shoulder replacement surgery. The injury in question was an aggravation of pre-existing osteoarthritis, which was accepted as work-related. However, there was a dispute over whether the effects of this aggravation had ceased. The case hinged on the interpretation and application of relevant legal principles, particularly in relation to the necessity of the proposed surgery and its connection to the work-related injury.

The primary legal issue was whether the proposed surgery was reasonably necessary as a result of the work-related injury. The court had to consider the accepted aggravation of pre-existing osteoarthritis and determine if it warranted the proposed surgical intervention. This involved examining the medical evidence and the case law, particularly the decision in Murphy v Allity Management Services Pty Ltd, to ascertain the connection between the aggravation and the necessity of the surgery.

The court applied the principles established in Murphy v Allity Management Services Pty Ltd, which emphasised that the aggravation of a pre-existing condition could lead to a reasonably necessary surgical intervention if the injury was work-related. In this instance, the court found that the aggravation of the pre-existing osteoarthritis was indeed work-related, and that the proposed surgery was reasonably necessary as a result of this work-related aggravation. Consequently, the court awarded the applicant compensation for the costs of and incidental to the left reverse total shoulder replacement surgery.

The court's decision was in favour of the applicant, granting the compensation claim. The final orders reflected this, awarding Quigg compensation for the costs of the surgery and any incidental expenses related to the procedure.

Orders