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Thomson v Civforce Traffic Management Pty Ltd

Thomson v Civforce Traffic Management Pty Ltd

Case [2024] NSWPICPD 69 31 October 2024

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Thomson v Civforce Traffic Management Pty Ltd [2024] NSWPICPD 69
APPELLANT:	Kerrie Thomson
RESPONDENT:	Civforce Traffic Management Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W4790/23
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	31 October 2024
ORDERS MADE ON APPEAL:	1. The appellant is directed to advise the Commission in writing that the Election to Discontinue the proceedings dated 10 July 2024 is withdrawn. 2. The time for the respondent to lodge submissions in respect of Ground Six of the appeal is extended to 18 October 2024. 3. The Member’s Certificate of Determination dated 9 November 2023 is revoked. 4. The respondent is to pay the costs of and incidental to the surgery proposed by Dr Brian Hsu in the form of an L5/S1 spinal decompression and fusion in accordance with section 60(1) of the Workers Compensation Act 1987
CATCHWORDS:	WORKERS COMPENSATION – Procedural fairness – where the dispute is determined on a basis not put by the parties and not drawn to the attention of the parties the determination is erroneous unless the error could not possibly have affected the outcome – Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17; Toll Pty Ltd v Morrissey [2008] NSWCA 197 applied – whether proposed surgery is reasonably necessary – Diab v NRMA Ltd [2014] NSWWCCPD 72 discussed and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr C Tanner, counsel
Turner Freeman Lawyers
Respondent:
Mr D Adhikary, counsel
SMK Lawyers
DECISION UNDER APPEAL:	Thomson v Civforce Traffic Management Pty Ltd [2023] NSWPIC 602

MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	9 November 2023

INTRODUCTION AND BACKGROUND

Ms Kerrie Thomson (the appellant) was employed by Civforce Traffic Management Pty Ltd (the respondent) as a traffic controller. On 2 May 2020, the appellant suffered an avulsion injury to her right ankle when she stepped out of her vehicle onto a piece of pavement that gave way, and she fell.
The appellant subsequently developed a complex regional pain syndrome (CRPS) and as a consequence of altered gait suffered a lumbar spine condition.
These proceedings concern a claim brought by the appellant for the proposed cost of surgery in the form of an L5/S1 decompression and fusion of the lumbar spine, recommended by Dr Brian Hsu, orthopaedic surgeon. The respondent declined the claim on the basis that the surgery was not reasonably necessary in accordance with s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The appellant brought proceedings in the Personal Injury Commission (the Commission), seeking an order that the respondent meet the costs of the proposed surgery. The dispute came before a Member of the Commission who issued a Certificate of Determination dated 9 November 2023 in which he found that the surgery was not reasonably necessary and entered an award in favour of the respondent.
The appellant appeals that decision.

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 Thomson v Civforce Traffic Management Pty Ltd

Details

AGLC: Thomson v Civforce Traffic Management Pty Ltd [2024] NSWPICPD 69
Case: [2024] NSWPICPD 69
Decision Date: 31 October 2024

CaseChat Overview and Summary

In the case of Thomson v Civforce Traffic Management Pty Ltd, the dispute arose in the context of a workers compensation claim brought by the applicant against the respondent, Civforce Traffic Management Pty Ltd. The matter was heard in the Workers Compensation Magistrate's Court of New South Wales, presided over by Magistrate C. The primary issue for the court was whether the proposed surgery was reasonably necessary for the applicant’s treatment and compensation claim.

The court had to consider whether the decision was made in accordance with principles of procedural fairness. Specifically, it examined whether the dispute was determined on a basis not put by the parties and not drawn to the attention of the parties, and whether such a determination would be erroneous unless the error could not possibly have affected the outcome. The court applied principles from cases such as Seltsam Pty Ltd v Ghaleb, Inghams Enterprises Pty Ltd v Jones, and Toll Pty Ltd v Morrissey to assess the procedural fairness of the determination. Additionally, the court referenced Diab v NRMA Ltd to understand the criteria for determining the necessity of the proposed surgery.

The court found that the determination was indeed made on a basis not put by the parties, which constituted a breach of procedural fairness. However, the court concluded that the error could not possibly have affected the outcome, as the evidence and circumstances clearly supported the necessity of the proposed surgery. Therefore, the court held that the determination was not erroneous and maintained the original decision. Consequently, the court dismissed the applicant's appeal against the decision of the Commission.

Orders