Roeser v AKM Earth Pty Ltd - [2024] NSWPIC 174

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Roeser v AKM Earth Pty Ltd [2024] NSWPIC 174
APPLICANT:	George Albert Roeser
RESPONDENT:	AKM Earth Pty Ltd
MEMBER:	Sophie Jones
DATE OF DECISION:	9 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; whether the applicant sustained injury to the cervical spine; whether C5/6 and C6/7 anterior cervical discectomy and fusion surgery proposed by Dr Neil Cochrane in his report dated 18 July 2023 is reasonably necessary medical treatment; Held – on 22 August 2018, the applicant sustained an aggravation, acceleration, exacerbation or deterioration of a pre-existing cervical spine condition and his employment was the main contributing factor to that aggravation, acceleration, exacerbation or deterioration; injury to the cervical spine established pursuant to section 4; C5/6 and C6/7 anterior cervical discectomy and fusion surgery is reasonably necessary medical treatment pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. Respondent to pay the applicant’s s 60 expenses in the amount of $46,251.55 in respect of the surgery proposed by Dr Neil Cochrane in his report dated 18 July 2023, namely C5/6 and C6/7 anterior cervical discectomy and fusion surgery as a result of injury to the cervical spine on 22 August 2018.

STATEMENT OF REASONS

BACKGROUND

On 22 August 2018, Mr George Roeser (the applicant) was injured while working as a labourer/machine operator for AKM Earth Pty Ltd in the construction of a freeway at Woodburn NSW. The applicant was washing dirt and gravel from stairs at the bottom of an embankment when he slipped on loose gravel and fell a distance he approximates was about 1m.
The applicant was initially treated in Lismore Base Hospital and over the course of 2019 and 2020, underwent surgical procedures to his left shoulder and lumbar spine.
Liability was accepted by the insurer in respect of injuries to the left knee, lower back and left shoulder.
The insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 25 July 2023 stating that the insurer disputed the applicant’s claim for compensation for his alleged cervical spine injury on
22 August 2018 and alternatively that a consequential cervical spine condition resulted from his accepted injury on 22 August 2018.
On 11 August 2023, the applicant made a claim on the insurer for medical treatment expenses in the amount of $46,251.55 for C5/6 and C6/7 anterior cervical discectomy and fusion surgery.
The insurer disputes liability for this expense.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute (Application) in the Personal Injury Commission (Commission) on
16 November 2023.
The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for compensation in the amount of $46,251.55 for future medical treatment, being C5/6 and C6/7 anterior cervical discectomy and fusion surgery.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(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: [2024] NSWPIC 174
Decision Date: 9 April 2024

CaseChat Overview and Summary

The applicant, Roeser, filed a claim for compensation for medical treatment against AKM Earth Pty Ltd under the Workers Compensation Act 1987. Roeser argued that his employment with AKM Earth Pty Ltd resulted in an injury to his cervical spine, which required C5/6 and C6/7 anterior cervical discectomy and fusion surgery. The dispute was heard and determined in the Workers Compensation Court. The primary legal issue was whether Roeser sustained an injury to his cervical spine that was caused or contributed to by his employment with AKM Earth Pty Ltd. Additionally, the court had to determine whether the proposed medical treatment by Dr Neil Cochrane, which included the anterior cervical discectomy and fusion surgery, was reasonably necessary.

The court examined evidence from Dr Neil Cochrane's report dated 18 July 2023, which concluded that Roeser had sustained an aggravation, acceleration, exacerbation or deterioration of a pre-existing cervical spine condition on 22 August 2018. The court found that Roeser's employment was the main contributing factor to this injury, and thus, it was established under section 4 of the Workers Compensation Act 1987. Given this finding, the court considered the necessity of the proposed medical treatment. The court found that the C5/6 and C6/7 anterior cervical discectomy and fusion surgery recommended by Dr Cochrane was reasonably necessary medical treatment under section 60 of the Act.

In conclusion, the court granted the applicant's claim for compensation for medical treatment, establishing that he sustained an injury to his cervical spine due to his employment with AKM Earth Pty Ltd. The court also determined that the proposed medical treatment was reasonably necessary.

Orders