Sunrise T & D Pty Ltd v Le - [2012] NSWWCCPD 47

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Sunrise T & D Pty Ltd v Le [2012] NSWWCCPD 47
APPELLANT:		Sunrise T & D Pty Ltd
RESPONDENT:		Van Hai Le
INSURER:		Xchanging
FILE NUMBER:		A1-9227/11
ARBITRATOR:	Ms A Nicholl
DATE OF ARBITRATOR’S DECISION:		3 May 2012
DATE OF APPEAL DECISION:		4 September 2012
SUBJECT MATTER OF DECISION:		Whether a particular surgical technique constitutes reasonably necessary treatment; s 60(1) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Goldbergs Lawyers
Respondent:	Santone Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 3 May 2012 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal.

BACKGROUND

The respondent worker, Van Hai Le, was employed by the appellant, Sunrise T & D Pty Ltd, as a supervisor. He is 54 years of age.
Mr Le suffered two injuries in the course of his employment. On 17 July 2008, he fell off a ladder, injuring his neck and back. On 28 August 2008, he fell while descending stairs, resulting in injuries to his shoulder, neck and back. Liability has been accepted in respect of the injuries sustained.
The worker’s treating specialist, Dr Ashish Diwan, has recommended he undergo spinal surgery in the form of a posterior translumbar interbody fusion at L4/5 and L5/S1, with top-up dynamic stabilisation. A dispute has arisen as to whether the treatment is reasonably necessary (s 60 of the Workers Compensation Act 1987 (the 1987 Act)).
On 31 August 2010, Xchanging issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It declined liability for the recommended treatment based on the opinion of an independent medical examiner, Dr Robert Breit, that the proposed surgery was not reasonably necessary.
On 28 April 2011, Xchanging wrote to Mr Le, advising that it had reviewed all available information, but maintained its decision to decline liability for the costs associated with the proposed surgery.
On 18 October 2011, Mr Le lodged an Application to Resolve a Dispute in the Commission. He claimed the cost of medical, hospital and rehabilitation expenses in an unspecified amount with respect to the recommended surgery. He relied only on the injury he sustained on 17 July 2008. He alleged cervical and lumbar disc prolapse, and a left rotator cuff injury.
On 9 November 2011, the employer lodged a Reply to the Application to Resolve a Dispute. It confirmed the issue in dispute concerned whether the hospital and medical expenses claimed pursuant to s 60 of the 1987 Act are reasonable and necessary for the treatment of the worker’s injuries.
Pursuant to s 60(5) of the 1987 Act, a dispute, if concerning any proposed treatment or service, must be referred by the Registrar for assessment under Pt 7 (Medical Assessment) of Ch 7 of the 1987 Act.
On 15 November 2011, the Registrar, by her delegate, referred the dispute…

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.

Keep reading for free

Create a free CaseChat account to read Sunrise T & D Pty Ltd v Le and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWWCCPD 47
Decision Date: 4 September 2012

CaseChat Overview and Summary

In the matter of Sunrise T & D Pty Ltd versus Le, the Central Authority heard an appeal concerning the interpretation and application of section 60(1) of the Workers Compensation Act 1987. The worker, Le, had undergone a particular surgical technique that the employer, Sunrise T & D Pty Ltd, disputed as not being reasonably necessary treatment. The crux of the case revolved around the assessment of whether the surgical technique in question was indeed reasonably necessary, a matter critical to the worker's entitlement to compensation.

The court was tasked with determining whether the surgical procedure in question met the statutory threshold for being considered reasonably necessary treatment under the Workers Compensation Act 1987. This involved examining the medical evidence provided, assessing the rationale behind the surgical approach, and evaluating whether the employer had discharged the burden of proving that the treatment was not reasonably necessary. The court needed to interpret the statutory language and apply it to the factual circumstances presented.

The court found that the Arbitrator's decision was consistent with the applicable statutory framework and the relevant case law. It held that the surgical technique employed was indeed reasonably necessary, aligning with the statutory requirements for compensation. The court confirmed that the Arbitrator's determination correctly applied the legal principles and adequately supported the conclusion reached. Consequently, the appeal was dismissed, and the employer was ordered to bear the costs of the appeal.

The court's final order confirmed the Arbitrator's determination of 3 May 2012 and mandated that the appellant employer pay the respondent worker's costs associated with the appeal. This decision underscored the importance of a thorough and evidence-based approach to determining the necessity of medical treatments in the context of workers' compensation claims.

Orders

Orders of the court

The Arbitrator’s determination of 3 May 2012 is confirmed.

The appellant employer is to pay the respondent worker’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.