Reed v National Contracting Services Pty Ltd - [2025] NSWPIC 48

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Reed v National Contracting Services Pty Ltd [2025] NSWPIC 48
APPLICANT:	Jason Bryant Reed
RESPONDENT:	National Contracting Services Pty Ltd
MEMBER:	Fiona Seaton
DATE OF DECISION:	17 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for cost of lumbar spine fusion surgery; whether the proposed lumbar spine fusion surgery is reasonably necessary; Held – the lumbar spine fusion surgery proposed by the Medical Assessor is reasonably necessary medical treatment pursuant to section 60; the respondent is to pay the medical, hospital and related expenses of the lumbar spine fusion surgery at the gazetted rates.
DETERMINATIONS MADE:	The Commission determines: 1. No estoppel arises in relation to the claim made by the applicant for L5/S1 anterior lumbar interbody fusion surgery proposed by Dr Khong. 2. The L5/S1 anterior lumbar interbody fusion surgery proposed by Dr Khong is reasonably necessary medical treatment as a result of the accepted injury on 22 June 2017 pursuant to s 60 of the Workers Compensation Act 1987. 3. The respondent is to pay the costs of and incidental to the L5/S1 anterior lumbar interbody fusion surgery proposed by Dr Khong at the applicable gazetted rates. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant Jason Reed was employed by the respondent National Contracting Services Pty Ltd as a truck driver, transporting sand and gravel from a quarry to concrete plants.
On 22 June 2017 the applicant was washing and cleaning a truck in a muddy field when he slipped and fell, injuring his right ankle and suffering consequential injuries to his lumbar spine and left knee.
The applicant’s previous claim brought in the Personal Injury Commission (Commission) for payment of the cost of L5/S1 anterior lumbar interbody fusion surgery was unsuccessful and an award was entered for the respondent by Member Wynyard on 14 January 2022.
Dr Peter Khong, the applicant’s treating specialist, again recommends in February 2024 that the applicant undergo L5/S1 anterior lumbar interbody fusion surgery and a further claim was made by the applicant.
A notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 was issued on 28 March 2024 disputing liability for the proposed lumbar spine surgery.
The applicant lodged an Application to Resolve a Dispute (ARD) with the Commission on
6 November 2024 claiming the amount of $24,701.40 for the proposed surgery including proposed instrumentation and bone graft.
The dispute was listed for conciliation conference and arbitration hearing on 17 January 2025 to determine whether the applicant has an entitlement to payment of the cost of the proposed surgery.

ISSUES FOR DETERMINATION

The parties agree the following issues remain in dispute:
(a) whether an estoppel arises in relation to the L5/S1 anterior lumbar interbody fusion surgery proposed by Dr Khong now claimed by the applicant, and
(b) if not, whether the proposed surgery proposed by Dr Khong is reasonably necessary medical and related treatment as a…

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: [2025] NSWPIC 48
Decision Date: 17 February 2025

CaseChat Overview and Summary

The case of Reed v National Contracting Services Pty Ltd involved a claim by the plaintiff, Reed, for the cost of lumbar spine fusion surgery against the defendant, National Contracting Services Pty Ltd. The dispute centred on whether the proposed lumbar spine fusion surgery was reasonably necessary medical treatment under the Workers Compensation Act 1987. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issue before the tribunal was whether the lumbar spine fusion surgery proposed by the Medical Assessor was reasonably necessary medical treatment. The tribunal had to determine if the surgery was in line with the provisions of section 60 of the Workers Compensation Act 1987, which governs the provision of medical treatment for workers’ compensation claims. The primary focus was on the necessity and reasonableness of the surgery in the context of the plaintiff's condition and the medical evidence presented.

In delivering its decision, the tribunal examined the evidence provided by the Medical Assessor, who recommended the lumbar spine fusion surgery as a necessary medical intervention for the plaintiff’s condition. The tribunal considered the plaintiff's medical history, the findings of the assessor, and the arguments presented by both parties. The tribunal concluded that the proposed surgery met the criteria for being reasonably necessary medical treatment under the Act, as it was supported by the assessor's expert opinion and aligned with the statutory requirements. Consequently, the tribunal ruled that the defendant was liable for the medical, hospital, and related expenses of the lumbar spine fusion surgery at the rates specified by the relevant legislation.

As a result of the tribunal's decision, the defendant, National Contracting Services Pty Ltd, was ordered to pay the costs associated with the lumbar spine fusion surgery for the plaintiff. This included the medical fees, hospital charges, and any related expenses, all at the rates gazetted under the Workers Compensation Act 1987. The ruling affirmed the plaintiff's entitlement to the proposed medical treatment and clarified the defendant's obligations in providing compensation for such necessary healthcare.

Orders