Thorne v Bingo Pty Ltd - [2021] NSWPIC 49

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Thorne v Bingo Pty Ltd [2021] NSWPIC 49
APPLICANT:	Stephen Thorne
RESPONDENT:	Bingo Pty Ltd
MEMBER:	Mr Cameron Burge
DATE OF DECISION:	26 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for future hip replacement surgery; surgery agreed to be a medical necessity, however, the cause of the need for that surgery at issue; whether the surgery is reasonably necessary as a result of an aggravation to an asymptomatic underlying condition suffered in a fall at work which also caused an accepted lumbar spine injury; Held- the applicant suffered an ongoing aggravation to his right hip in the incident at issue; the effects of that aggravation are ongoing; the aggravation has given rise to the need for the proposed surgery; the proposed surgery is reasonably necessary as a result of the injury; the respondent is to pay the costs of and incidental to the proposed surgery.
DETERMINATIONS MADE:	1. The applicant suffered an injury to his right lower extremity (hip) in the course of his employment with the respondent on 24 September 2018, by way of an aggravation of a pre-existing degenerative condition. 2. The applicant’s employment with the respondent was the main contributing factor to the injury referred to in paragraph 1 above. 3. As a result of the injury referred to in paragraph 1 above, the applicant requires surgery by way of total right hip replacement. 4. The surgery referred to in paragraph 3 above is reasonably necessary as a result of the injury referred to in paragraph 1 above. 5. The respondent is to pay the costs of and incidental to the proposed total right hip replacement surgery.

STATEMENT OF REASONS

BACKGROUND

On 21 September 2018, Mr Stephen Thorne (the applicant) was in the course of his employment with Bingo Pty Ltd (the respondent) when he slipped from a ladder as he was descending a front-end loader, sustaining injury to his lumbar spine.

The applicant also alleges that the fall on 24 September 2018 caused an aggravation to an underlying degenerative condition in his right hip, which has brought about the requirement for a total hip replacement.

The respondent denies liability for the surgery, and alleges that although it is a medical necessity, the need for it was not brought about by any workplace injury but rather by the underlying degenerative condition itself.

ISSUES FOR DETERMINATION

The parties agree that the only issues in dispute are whether the applicant suffered an injury to his right hip in the incident in question and whether that injury has brought about the requirement for the medically necessary right hip replacement.

PROCEDURE BEFORE THE COMMISSION

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…

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: [2021] NSWPIC 49
Decision Date: 26 March 2021

CaseChat Overview and Summary

In Thorne v Bingo Pty Ltd, the applicant, Mr. Thorne, sought compensation for future hip replacement surgery following an incident at work. The dispute centred on whether the surgery was reasonably necessary as a result of an aggravation to an asymptomatic underlying condition, which arose from a fall at work that also caused a recognised lumbar spine injury. The case was heard by the Workers Compensation Court of Queensland.

The court had to decide whether the aggravation of the asymptomatic underlying hip condition was a result of the workplace incident. Additionally, the court needed to determine if the proposed hip replacement surgery was reasonably necessary due to this aggravation and if the respondent, Bingo Pty Ltd, should cover the costs of the surgery. The legal issues primarily revolved around causation, necessity of the surgery, and the definition of a reasonably necessary medical treatment under the relevant workers compensation legislation.

The court found that Mr. Thorne had indeed suffered an ongoing aggravation to his right hip due to the fall at work. This aggravation led to the necessity for future hip replacement surgery. The court held that the aggravation of the pre-existing asymptomatic condition was a direct result of the workplace incident, and that the proposed surgery was reasonably necessary. Consequently, the court ruled that the respondent must bear the costs of the surgery and any incidental expenses. This decision underscores the importance of addressing all aspects of an injury, including asymptomatic conditions, when determining the scope of compensation for workplace injuries.

Orders