Thomson v Civforce Traffic Management Pty Ltd - [2023] NSWPIC 602

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Thomson v Civforce Traffic Management Pty Ltd [2023] NSWPIC 602
APPLICANT:	Kerrie Thomson
RESPONDENT:	Civforce Traffic Management Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	9 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Application for L5/S1 surgery; whether applicant’s experts demonstrated proposed surgery was reasonably necessary; Held – medico-legal expert simply relied on treating surgeon’s opinion when he had referred to many issues that required consideration; treating surgeon’s opinion inconsistent and contradictory; Diab v NRMA Ltd considered; no prima facie case established; onus of proof not met; Hancock v East Coast Timber Products Pty Ltd, Brown v Lewis, and Hernandez v State Rail Authority considered and applied; award respondent.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Kerrie Thomson, the applicant, seeks a declaration that a proposed L5-S1 decompression and surgery is reasonably necessary, and an order that the respondent, Civforce Traffic Management Pty Ltd, pay the cost of the procedure.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) is the proposed surgery reasonably necessary?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard on 25 August 2023 by video link. Mr Craig Tanner of counsel appeared, briefed by Mr Thomas Schembri. Mr Dewashish Adhikary of counsel appeared for the respondent, instructed by Mr Chris Smith. Ms Miriam Menge appeared for the insurer.
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 them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute;
(b)    Application to admit late documents dated 14 August 2023, and
(c)    Reply.

Oral evidence

No application was made.

FINDINGS AND REASONS

Ms Thomson

Ms Thomson made a statement dated 4 July 2023.[1] Ms Thomson described that when she was doing traffic control work she stepped out of her vehicle and rolled her right ankle on a piece of pavement. She went to Hornsby Hospital the next morning due to her concerns with her ankle, and was discharged wearing a CAM boot.
[1] ARD page 1.
Ms Thomson confirmed her subsequent difficulties in the months that followed, stating that she was unable to put any weight on her right ankle and had to use a walking scooter as her ankle was extremely sensitive and had a very limited range of motion.
She said at [10]:
“I confirm my CRPS in my right ankle is causing me considerable pain and discomfort. Some days the area is hot whereas some days it…

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: [2023] NSWPIC 602
Decision Date: 9 November 2023

CaseChat Overview and Summary

In the case of Thomson v Civforce Traffic Management Pty Ltd, the applicant sought compensation for a proposed surgical procedure relating to an injury sustained during the course of their employment. The case was heard by the NSW Civil and Administrative Tribunal, which was required to determine whether the proposed surgery was reasonably necessary for the treatment of the applicant’s condition. The respondent, Civforce Traffic Management Pty Ltd, argued that the applicant had not established a prima facie case for the surgery.

The court needed to consider the weight of the evidence presented by the applicant’s experts and whether it met the necessary standard of proof. The applicant’s experts had relied heavily on the opinion of a treating surgeon, but the court found that the treating surgeon’s opinion was inconsistent and contradictory, and the expert had failed to consider other relevant factors. The court found that the applicant had not established a prima facie case for the proposed surgery, as the expert’s reliance on the treating surgeon’s opinion was insufficient without addressing the inconsistencies and contradictions.

The court considered relevant case law, including Diab v NRMA Ltd, Hancock v East Coast Timber Products Pty Ltd, Brown v Lewis, and Hernandez v State Rail Authority, to determine the appropriate standard of proof and the burden of proof on the applicant. The court concluded that the applicant had not met the onus of proof required to establish a prima facie case for the proposed surgery. The tribunal awarded the respondent, finding that the applicant had not established that the proposed surgery was reasonably necessary for the treatment of their condition.

The tribunal ordered that the respondent was not liable for the costs of the proposed surgery and any associated medical expenses. The tribunal also noted that the applicant had the right to seek further medical advice and to pursue alternative treatment options, but that the onus of proof remained with the applicant to establish the necessity of any proposed treatment.

Orders