Tough v Protech Pty Ltd - [2021] NSWPIC 260

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tough v Protech Pty Ltd [2021] NSWPIC 260
APPLICANT:	Shanon Tough
RESPONDENT:	Protech Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	26 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim pursuant to section 60 of the 1987 Act for the costs of and incidental to a proposed L4/5 disc replacement procedure; claim for weekly compensation discontinued; accepted injury in the nature of an aggravation of pre-existing lumbar pathology; desktop surveillance of applicant showed him participating in kayaking, fishing, boating, surfing and riding rollercoasters after the injury; whether proposed surgery reasonably necessary as a result of injury; Held- respondent’s medicolegal expert did not engage sufficiently with radiological investigations, EMG studies and discogram revealing pathology intended to be treated by the proposed procedure; award in favour of the applicant.
DETERMINATIONS MADE:	1. The L4/5 total disc replacement surgery as recommended by Dr Laurence McEntee is reasonably necessary as a result of the injury on 30 May 2019. 2. The respondent to pay the costs of and incidental to the proposed surgery pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Shanon Tough (the applicant) was employed as a labourer by Protech Pty Ltd (the respondent). On 30 May 2019, the applicant sustained an injury to his lumbar spine whilst using a large plate compactor to backfill a culvert.
Liability for an injury to the applicant’s lumbar spine on that date was accepted by the respondent’s insurer.
On 9 March 2020, the applicant’s orthopaedic surgeon, Dr Laurence McEntee, forwarded to the insurer a request for approval for the applicant to undergo a L4/5 disc replacement surgery.
On 17 July 2020, the insurer disputed liability to pay weekly benefits and treatment expenses in respect of the injury in a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). That decision was maintained following an internal review pursuant to s 287A of the 1998 Act in a notice dated 1 October 2020.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 20 May 2021. The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the surgery proposed by Dr McEntee.
A claim for weekly compensation was discontinued at the initial teleconference on 18 June 2021.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 20 July 2021. The applicant was represented by legal practitioners Mr Brett Gilbert and Mr Ben Newling. The respondent was represented by Mr Dewashish Adhikary of counsel, instructed by Ms Pradesha Thomas. A number of representatives from the insurer and the employer were also present.
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…

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 Tough v Protech Pty Ltd

Details

AGLC: Tough v Protech Pty Ltd [2021] NSWPIC 260
Case: [2021] NSWPIC 260
Decision Date: 26 July 2021

CaseChat Overview and Summary

Tough initiated proceedings against Protech Pty Ltd, seeking compensation for the costs associated with a proposed L4/5 disc replacement procedure, as well as incidental costs. The dispute arose from an accepted injury that was an aggravation of pre-existing lumbar pathology. The case was heard in the relevant Australian court, where the applicant had discontinued his claim for weekly compensation. The crux of the matter was whether the proposed surgery was reasonably necessary as a consequence of the injury. This determination hinged on the sufficiency of the respondent's medicolegal expert's engagement with the available radiological investigations, EMG studies, and discogram results.

The court examined the extent to which the respondent's expert had considered the comprehensive medical evidence presented. The evidence included detailed radiological investigations, EMG studies, and a discogram, all of which pointed to pathology intended to be treated by the proposed procedure. The court found that the respondent's expert did not adequately engage with this evidence, thereby failing to sufficiently assess the necessity of the proposed surgery. This inadequacy in the expert's analysis led the court to conclude that the proposed surgery was reasonably necessary.

As a result, the court ruled in favour of the applicant, granting the award for the costs of and incidental to the proposed L4/5 disc replacement procedure. The court's decision was based on the insufficiency of the respondent's expert's engagement with the comprehensive medical evidence, which included the radiological investigations, EMG studies, and discogram results. The court's decision underscored the importance of a thorough and comprehensive analysis of all available medical evidence in medicolegal assessments.

Orders