Sabine v HammondCare - [2024] NSWPIC 664

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sabine v HammondCare [2024] NSWPIC 664
APPLICANT:	Tapa'Autaua Sabine
RESPONDENT:	HammondCare
MEMBER:	Cameron Burge
DATE OF DECISION:	3 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of total right knee replacement; injury admitted; requirement for surgery admitted; issue for determination is whether the requirement for surgery came about as a result of the injury; the applicant suffered an accepted injury to her right knee by way of aggravation to pre-existing pathology when she was lifting a patient who fell towards her, in turn causing the applicant to fall and (relevantly) injure her right knee; the applicant had, from time to time, made complaints in relation to her right knee before the injury at issue, including to her GP the day before the injury; however, she stated the injury caused her consistent ongoing pain which has worsened over time, necessitating the surgery; the respondent argued the applicant had not discharged her onus of proving the causal connection between the injury and the proposed surgery, and also effects of the injury had passed, as a result of which the surgery was necessary because of her underlying condition; Held – the injury made a material contribution to the need for the surgery, meaning the operation is reasonably necessary as a result of the injury; Murphy v Allity Management Services Pty Ltd followed, Kooragang Cement Pty Ltd v Bates referred to; the evidentiary onus of proving the effects of an accepted injury have passed is on the party so alleging; Commonwealth v Muratore referred to; the respondent did not lead any medical evidence to support the proposition the effects of the injury had passed, and as such failed to discharge its onus of proof on that point; on balance, the evidence discloses the proposed surgery is reasonably necessary as a result of the injury; respondent to pay the costs of and incidental to the proposed surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to her right knee in the course of her employment with the respondent on 7 October 2022 in the nature of a frank aggravation to pre-existing pathology. 2. As a result of the applicant’s injury, she requires a total right knee replacement as recommended by Dr Rahme. 3. The proposed surgery is reasonably necessary as a result of the applicant’s injury. 4. The respondent is to pay the costs of and incidental to the proposed surgery. 5. Notation: a. the Commission notes the agreement of the parties that the proposed surgery relates to an artificial aid and accordingly, the provisions of s 59A of the Workers Compensation Act 1987 do not apply.

STATEMENT OF REASONS

BACKGROUND

On 7 October 2002, the applicant, Tapa’Autaua Sabine was lifting a patient in the course of her employment with HammondCare (the respondent) when the patient fell towards her, causing the applicant to fall forward out of a chair and hitting the ground with both her knees, together with causing her right ankle and back to…

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.

Continue reading Sabine v HammondCare

Details

AGLC: Sabine v HammondCare [2024] NSWPIC 664
Case: [2024] NSWPIC 664
Decision Date: 3 December 2024

CaseChat Overview and Summary

The case of Sabine v HammondCare involved a claim for the costs of a total right knee replacement. The applicant alleged that her injury was admitted and the requirement for surgery was also admitted. The central issue before the court was whether the requirement for surgery arose as a result of the injury. The applicant had suffered an injury to her right knee, which was an aggravation of pre-existing pathology, when she was lifting a patient who fell towards her, causing the applicant to fall and injure her right knee. Despite previous complaints about her right knee, the applicant claimed that the injury caused consistent ongoing pain that necessitated the surgery.

The legal issues that the court needed to resolve were whether the applicant had proven the causal connection between the injury and the proposed surgery, and whether the effects of the injury had passed, making the surgery necessary due to her underlying condition. The respondent argued that the applicant had not discharged the onus of proving the causal connection and that the effects of the injury had passed, rendering the surgery necessary because of her pre-existing condition. The court found that the injury had made a material contribution to the need for the surgery, thereby establishing that the operation was reasonably necessary as a result of the injury. The court followed the decision in Murphy v Allity Management Services Pty Ltd and referred to Kooragang Cement Pty Ltd v Bates. The court also noted that the evidentiary onus of proving the effects of the accepted injury had passed was on the party alleging this. The respondent did not provide any medical evidence to support the claim that the effects of the injury had passed and thus failed to discharge its onus of proof on that point. The court concluded that the evidence demonstrated the proposed surgery was reasonably necessary as a result of the injury.

The final orders of the court were that the respondent was to pay the costs of and incidental to the proposed surgery. The court's decision hinged on the lack of evidence from the respondent to support its claims regarding the passing of the effects of the injury and the necessity of the surgery due to the applicant's underlying condition. The applicant's claim for the costs of the surgery was upheld, as the court found that the injury had a material contribution to the need for the surgery.

Orders