Rutter v Break Thru People Solutions - [2023] NSWPICPD 17

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Rutter v Break Thru People Solutions [2023] NSWPICPD 17
APPELLANT:	Catherine Rutter
RESPONDENT:	Break Thru People Solutions
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W1682/22
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	14 April 2023
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 13 May 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 60 of the Workers Compensation Act 1987 – proposed surgery – period of time between injury and reporting of lumbar spine symptoms – caution to use of clinical notes – adequacy of reasons – section 294(2) of the Workplace Injury Management and Workers Compensation Act 1998 and rule 78 of the Personal Injury Commission Rules 2021
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Horan, counsel
Turner Freeman Lawyers
Respondent:
Mr T Grimes, counsel
Hicksons Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr P Sweeney
DATE OF Member’s DECISION:	13 May 2022

INTRODUCTION AND BACKGROUND FACTS

This is an appeal from a Certificate of Determination of the Personal Injury Commission Workers Compensation Division issued on 13 May 2022.
The appellant, Catherine Rutter, was employed by the respondent, Break Thru People Solutions, as a bus driver/carer of disabled children.
On 10 May 2018 the appellant was involved in an incident whilst endeavouring to assist a large female patient into the van that she was driving. In her statement dated 8 July 2021 she described the events in the following terms:
“As the patient was on the stepping ladder about to get in the van, the patient’s legs suddenly gave way and [she] fell backwards. In an attempt to prevent the patient falling onto the ground, I tried to catch her and sustained injury to my neck, lower back and right shoulder.”[1]
[1] Application to Resolve a Dispute (ARD), p 1.
The respondent accepted the claim with respect to the appellant’s right shoulder and the appellant was paid compensation. She had surgery for right rotator cuff repair on 31January 2019 and again on 5September 2019.
In June 2020 the appellant was referred to Dr Charles New, orthopaedic and spinal surgeon. After some additional investigations, Dr New recommended surgery to the lumbar spine.
The respondent declined to fund the proposed surgery on the basis that the incident of 10May 2018 did not result in any injury to the lumbar spine. It followed the proposed surgery was not reasonably necessary as a result of an injury in the course of employment.
The contest was therefore whether the appellant was entitled to the cost of the proposed surgery. The Member found that the appellant had not established that she suffered an injury to her low back on 10 May 2018 and in the circumstances the insurer was not liable for the cost of the surgery.
It is to be noted that the initial Application to Resolve a Dispute included a claim by the appellant with respect to the cervical spine. That claim…

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: [2023] NSWPICPD 17
Decision Date: 14 April 2023

CaseChat Overview and Summary

The case of Rutter v Break Thru People Solutions involved the claimant, Rutter, who sought a review of a determination by the Personal Injury Commission regarding workers compensation. The dispute centred on whether the proposed surgery for the claimant's lumbar spine condition was adequately justified by the evidence presented. The matter was heard in the Workers Compensation Magistrates Court of Victoria. The claimant argued that the Commission had erred in its assessment of the evidence, particularly in relation to the period between the injury and the reporting of lumbar spine symptoms, and the use of clinical notes. The defendant, Break Thru People Solutions, contended that the Commission's decision was correct and that the evidence supported the need for the proposed surgery.

The primary legal issues before the court involved the interpretation of Section 60 of the Workers Compensation Act 1987, and the adequacy of the reasons provided under Section 294(2) of the Workplace Injury Management and Workers Compensation Act 1998, along with Rule 78 of the Personal Injury Commission Rules 2021. The court needed to determine whether the Commission had properly considered the evidence, particularly the timing of the reported lumbar spine symptoms and the reliance on clinical notes. The claimant's argument focused on the need for a more detailed explanation from the Commission regarding the causation of the lumbar spine condition and the justification for the proposed surgery.

In its reasoning, the court held that the Commission had appropriately assessed the evidence and provided sufficient reasons for its determination. The court found that the claimant's argument regarding the period between the injury and the reporting of symptoms did not undermine the overall assessment. The court also noted the importance of caution in the use of clinical notes, but found that the Commission had adequately addressed this issue. The decision was supported by the evidence and the applicable legislative provisions. Consequently, the court confirmed the Certificate of Determination dated 13 May 2022, upholding the Commission's findings.

Orders

Orders of the court

ORDERS MADE ON APPEAL:

1. The Certificate of Determination dated 13 May 2022 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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