Sutherland v D E Maintenance Pty Ltd

[2019] NSWWCCPD 39

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sutherland v D E Maintenance Pty Ltd [2019] NSWWCCPD 39
APPELLANT:	Jamie Sutherland
RESPONDENT:	D E Maintenance Pty Ltd
INSURER:	AAI Limited trading as GIO Agent for Icare Workers Insurance
FILE NUMBER:	A1-6313/18
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	12 February 2019
DATE OF APPEAL DECISION:	26 July 2019
SUBJECT MATTER OF DECISION:	Fresh or additional evidence pursuant to section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; factual error – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Turner Freeman Lawyers
Respondent:	Turks Legal
ORDERS MADE ON APPEAL:	1. The appellant’s application to rely on fresh or additional evidence pursuant to section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. 2.    The Arbitrator’s decision dated 12 February 2019 is revoked. 3.    The matter is remitted pursuant to s 352(7) of the 1998 Act for re-determination by a different Arbitrator.

INTRODUCTION AND BACKGROUND

1. Jamie Sutherland (the appellant) was employed by D E Maintenance Pty Ltd (the respondent) in the installation of sprinkler and fire systems. He suffered injury (the occurrence of which is not in issue) on 21 September 2017. He was up a ladder removing an air conditioning vent that weighed 1 to 1½ kilograms, when he lifted it and twisted. He said he experienced pain in the lower back and neck. He took periodic time off work, and the respondent’s insurer accepted the claim, paying weekly payments and medical expenses. The appellant was off work from 19 February 2018. He came under the care of Dr Darwish, a neurosurgeon. Treatment involving exercises, physiotherapy and hydrotherapy did not alleviate the lower back pain, which the appellant said got worse.[1]

   [1] Appellant’s statement dated 29 November 2018, [4]–[15], Application to Resolve a Dispute (ARD), pp 70–71.

2. In June 2018 Dr Darwish recommended surgery, involving laminectomy, discectomy and fusion at L5/S1. The appellant was examined at the insurer’s request by Dr Peter Bentivoglio, and the request that the insurer fund the proposed surgery was declined, in a s 74 notice dated 1 August 2018.[2] The reason given was that the surgery was not reasonably necessary, the insurer relying on the opinion of Dr Bentivoglio.[3] The appellant subsequently saw another neurosurgeon, Dr Day. Dr Day also recommended surgery, but expressed the view that disc replacement (L5/S1 total disc arthroplasty) was preferable to fusion.[4]

   [2] ARD, pp 78–79.

   [3] Dr Bentivoglio’s report dated 25 July 2018, Reply, pp 1–5.

   [4] Dr Day’s report dated 8 October 2018, ARD, pp 23–24.

3. The current proceedings sought orders compelling the respondent to pay for the costs of the proposed surgery, pursuant to s 60(5) of the Workers Compensation Act 1987. The procedure sought is that recommended by Dr Day. [5]

   [5] ARD, p 6 (Pt 5.3).

ON THE PAPERS

1. Section 354(6)…