Secretary, Department of Planning and Environment v Lyons

Case [2024] NSWPICPD 25

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Secretary, Department of Planning and Environment v Lyons [2024] NSWPICPD 25

APPELLANT:

Secretary, Department of Planning and Environment

RESPONDENT:

Kyle Lyons

INSURER:

QBE TMF

FILE NUMBER:

A1-W7952/22

PRESIDENTIAL MEMBER:

President Judge Phillips

DATE OF APPEAL DECISION:

2 May 2024

ORDERS MADE ON APPEAL:

1.     The Certificate of Determination dated 20 June 2023 is revoked.

2.     Upon redetermination, the following order is made:

(a)   Award for the respondent worker for the costs of and associated with the right shoulder arthroscopy and open latarjet stabilisation with coracoid bone transfer surgery as recommended by Dr Wade Harper, pursuant to section 60 of the Workers Compensation Act 1987.

CATCHWORDS:

WORKERS COMPENSATION – clause 44 of the Workers Compensation Regulation 2016 – restriction on the number of medical reports allowed into proceedings – appeal upheld – decision revoked and redetermined pursuant to section 352(6A) of the Workplace Injury Management and Workers Compensation Act1998 – Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 considered – claim for surgery pursuant to section 60 of the Workers Compensation Act 1987 – whether surgery is “as a result of” injury –Fagan v Crimes Compensation Tribunal [1982] HCA 49; 150 CLR 666 applied

HEARING:

On the papers

REPRESENTATION:

Appellant:

Ms M Kikinis, solicitor

HWL Ebsworth Lawyers

Respondent:

Mr S Moffet, counsel

Walker Law Group

DECISION UNDER APPEAL:

Lyons v Secretary, Department of Planning, Industry and Environment [2023] NSWPIC 292

MEMBER:

Mr J Wynyard

DATE OF MEMBER’S DECISION:

20 June 2023

INTRODUCTION

  1. Kyle Lyons, the respondent worker, has had a number of injuries to his right shoulder both at work and outside work. He now requires right shoulder surgery, about the need for which there is no dispute. The respondent claims the cost of this surgery pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act). The appellant, Secretary, Department of Planning and Environment, has denied that it is liable to pay for the surgery. The dispute in this matter is about whether the need for the surgery is causally related to the injury suffered at work on 30 December 2021.

  2. The respondent commenced work as a Field Officer in the Parks and Wildlife section of the appellant in 2019. Prior to commencing this role the respondent suffered two injuries to his right shoulder. The first was in 2009, when he underwent a keyhole right shoulder stabilisation performed by Dr Wade Harper, shoulder surgeon. In April or May 2021, while playing rugby league, the respondent fractured his right scapula. His arm was placed in a sling for a few weeks and he resumed working for the appellant without restriction.  

  3. The injury subject of these proceedings was sustained some seven months later, and is described by the respondent in the following terms:

    “I was initially based at the La Perouse Park and then later on from sometime during 2020 I was sent to Towra Nature Reserve in the Cronulla…

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Secretary, Department of Planning and Environment v Lyons [2024] NSWPICPD 25
Case
[2024] NSWPICPD 25
Decision Date

CaseChat Overview and Summary

The case of Secretary, Department of Planning and Environment v Lyons was heard by the Industrial Relations Commission of New South Wales. The respondent, Mr Lyons, was seeking workers' compensation for a surgery he required due to an injury sustained at work. The Secretary, Department of Planning and Environment, the appellant, challenged the decision of the Commission Member who had approved Mr Lyons' claim for surgery. The legal issues in this case revolved around whether the Commission Member had erred in law by allowing more than the permitted number of medical reports, and whether the approval of Mr Lyons' claim for surgery was supported by the evidence.

The court considered the provisions of clause 44 of the Workers Compensation Regulation 2016, which restricts the number of medical reports that can be submitted in workers' compensation proceedings. The court found that the Member had allowed an additional medical report from Dr Endrey-Walder, which was not permitted. The court also considered the evidence of Mr Lyons and three doctors, Dr Harper, Dr Endrey-Walder, and Dr Soo, who were of the opinion that the injury sustained by Mr Lyons was a material factor in his need for surgery. The court found that the opinion of Dr Endrey-Walder had been considered, weighed, and played a role in the result. The court held that the Member's failure to provide procedural fairness to the parties in relation to Dr Endrey-Walder's opinion, and the use of that opinion in contravention of clause 44 of the 2016 Regulation, was a material error of law.

Accordingly, the appeal was upheld, the Certificate of Determination dated 20 June 2023 was revoked, and the matter was remitted to the Commission for redetermination. Upon redetermination, the following order was made: the respondent worker was awarded for the costs of and associated with the right shoulder arthroscopy and open latarjet stabilisation with coracoid bone transfer surgery as recommended by Dr Wade Harper, pursuant to section 60 of the Workers Compensation Act 1987.

Orders

Orders of the court

ORDERS MADE ON APPEAL:

1. The Certificate of Determination dated 20 June 2023 is revoked.

2. Upon redetermination, the following order is made:

(a) Award for the respondent worker for the costs of and associated with the right shoulder arthroscopy and open latarjet stabilisation with coracoid bone transfer surgery as recommended by Dr Wade Harper, pursuant to section 60 of the Workers Compensation Act 1987.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Further I now go to reasons [77] and [89]. They read as follows:“77. I found the reports of Dr Harper, Dr Endrey-Walder and Dr Soo to be consistent to the cause of Mr Lyons’ need for surgery to his right shoulder. It was not suggested by any of the above doctors that Mr Lyons had dislocated his shoulder at the time of the subject accident. Their view, expressed in different ways, was that the subject injury was of such significance that it caused an instability in the right shoulder, which had been a material factor in the subsequent dislocations. …89. In any event, notwithstanding the detailed submissions by Mr Baker [counsel for the appellant in the proceedings before the Member], the evidence of Mr Lyons himself and the three doctors I have mentioned, Dr Harper, Dr Endrey-Walder and Dr Soo satisfy me that the subject injury is a material factor in the subsequent development by Mr Lyons of the dislocations in his right shoulder. Even though Mr Baker argued that Dr Cairns’ opinion did not rise above the possible, were that the case (which I find against), the evidence as a whole establishes causation on a balance of probabilities.”[21] (emphasis added)[21] Referring to Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153. Clearly on any dispassionate view of these two paragraphs, Dr Endrey-Walder’s opinion is without doubt a constituent part of the overall evidentiary basis for the Member’s ultimate conclusion in favour of the respondent. In short, the offending opinion has been considered, weighed and played a role in the result. There is one final paragraph wherein Dr Endrey-Walder has been mentioned, and that is in reasons [90] where the Member has considered the doctor’s opinion in respect of s 9A of the 1987 Act. This paragraph is at best neutral in terms of its effect on the ultimate result and I do not need to have regard to it. The test I am called upon to apply is whether the offending opinions of Dr Endrey-Walder could not have possibly affected the result. Far from being satisfied that the doctor’s opinion could not have possibly affected the result, I am of the opinion that it was a part of the overall evidentiary basis relied on by the Member to make the orders in this matter. There has been a failure to afford the parties procedural fairness in that neither had the opportunity to be heard on Dr Endrey-Walder’s opinion. Secondly the use to which the opinion was put, in concert with the opinion of Dr Soo, was directly contrary to cl 44 of the 2016 Regulation. As a consequence, Ground One has been established. This being the case, it is necessary that I revoke the Certificate of Determination dated 20 June 2023. Given that I have decided that Ground One has been established and I have decided to revoke the Certificate of Determination, I do not need to decide Ground Two. The Certificate of Determination dated 20 June 2023 is revoked. The appellant seeks the following relief in the appeal: “The Presidential Member should either revoke the Certificate of Determination and enter in lieu thereof an award for the [appellant]. In the alternative, it would be open to the Presidential Member to order a remittal of the matter to another Member of the Commission for further determination.”[22] [22] Appellant’s Appeal Submissions, Part A: Procedural Matters.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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