Shankar v Transdev NSW South Pty Limited - [2024] NSWPIC 447

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shankar v Transdev NSW South Pty Limited [2024] NSWPIC 447
APPLICANT:	Ashween Shankar
RESPONDENT:	Transdev NSW South Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	19 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60; claim for compensation for proposed cervical spine surgery; no dispute that surgery reasonably necessary medical treatment for a condition at the applicant’s spine; whether injury to cervical spine due to nature and conditions of employment as a bus driver; previously accepted injury to lumbar spine due to nature and conditions of employment; contemporaneous evidence of cervical spine symptoms during employment; claim for injury not made until approximately two and half years after employment ceased; Held – applicant has not discharged her onus of establishing injury or material contribution to need for surgery from injury; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Ms Ashween Shankar (the applicant) was employed as a bus driver by Transdev NSW South Pty Limited (the respondent).
The applicant claims that, as a result of the nature and conditions of her employment with the respondent, she has sustained an injury to her cervical spine in respect of which surgery, in the form of a C5/C6 decompression, laminectomy, and intervertebral total disc replacement, has been recommended by Dr Ashish Diwan.
Liability for the injury and the surgery was disputed by the respondent’s insurer in notices issued pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 21 April 2022, 24 June 2022, 21 February 2023, 27 June 2023 and 26 March 2024.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute lodged in the Personal Injury Commission (Commission) on 8 May 2024. The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the surgery proposed by Dr Diwan.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 19 July 2024 in Sydney. The applicant was represented by Mr Grimes of counsel. The respondent was represented by Mr Doak of counsel.
During the conciliation conference, the parties reached agreement that the surgical treatment proposed by Dr Diwan was reasonably necessary medical treatment for the condition at the applicant’s cervical spine. The causal relationship between that condition and the applicant’s employment with the respondent remained in dispute.
The parties were advised that, given the large volume of material filed in the proceedings, I would only take into account the material to which I was directed in submissions when making my determination.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of…

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 447
Decision Date: 19 August 2024

CaseChat Overview and Summary

Shankar and Transdev NSW South Pty Limited presented a workers' compensation case before the court, where the applicant sought compensation for proposed cervical spine surgery. The applicant, a former bus driver, argued that the injury to her cervical spine was due to the nature and conditions of her employment, and that the surgery was reasonably necessary medical treatment. The employer conceded that the surgery was required but contested whether the injury arose from the employment.

The legal issues before the court involved determining whether the applicant's cervical spine injury was caused by or materially contributed to by the nature and conditions of her employment. Additionally, the court had to consider the applicant's failure to make the claim for the cervical spine injury until approximately two and a half years after her employment had ceased.

In assessing these issues, the court found that the applicant had not successfully discharged her burden of proving that the cervical spine injury arose from or was materially contributed to by her employment. The court also noted that there was no contemporaneous evidence of cervical spine symptoms during the period of employment. The court held that the applicant's claim was not made until a significant period after the employment had ceased, which further undermined her case. Consequently, the court dismissed the applicant's claim and awarded costs to the respondent.

The court's final order was that the applicant's claim for compensation for the proposed cervical spine surgery was dismissed, and the respondent was awarded costs.

Orders