Tray Fit Pty Ltd v Cairney

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Tray Fit Pty Ltd v Cairney [2015] NSWWCCPD 2
APPELLANT:	Tray Fit Pty Ltd
RESPONDENT:	Jamie Cairney
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-8864/13
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:	12 September 2014
DATE OF APPEAL DECISION:	14 January 2015
SUBJECT MATTER OF DECISION:	Future medical expenses; claim for proposed three level fusion; order for payment of two level fusion; whether claim for three level fusion included claim for two level fusion; nature of issues in dispute; application of principles in Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; 5 DDCR 247 and Tan v National Australia Bank Ltd [2008] NSWCA 198; 6 DDCR 363; s 60(5) of the Workers Compensation Act 1987; ss 3 and 354(3) of the Workplace Injury Management and Workers Compensation Act 1998; system objectives; meaning of “reasonably necessary” discussed; fundamentally flawed approach by insurer to claim for medical expenses
PRESIDENTIAL MEMBER:	Acting President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Stiles Lawyers
Respondent:	Law Partners Compensation Lawyers
ORDERS MADE ON APPEAL:	1.       The Arbitrator’s determination of 12 September 2014 is confirmed. 2.       No order as to costs.

INTRODUCTION

1. In this matter the Arbitrator found that, as a result of accepted injuries to the worker’s lumbar spine, it was reasonably necessary that the worker have surgery fusing the L4/5 and L5/S1 levels of his spine. That is, a two level fusion. The employer has challenged that finding on the ground that the only claim made by the worker was for the cost of an L3 – S1 fusion. That is, a three level fusion. For the reasons explained below, the appeal is unsuccessful.

BACKGROUND

1. On 10 February 2012 and 2 April 2012, the respondent worker, Jamie Cairney, injured his lumbar spine in the course of his employment with the appellant employer, Tray Fit Pty Ltd. The appellant’s insurer, Allianz Australia Workers Compensation (NSW) Ltd (Allianz), accepted his claim for compensation and commenced payments of weekly and other compensation.

2. Allianz arranged for Mr Cairney to be examined by neurosurgeon, Dr Vidyasagar Casikar. In a report dated 10 October 2012 Dr Casikar agreed that Mr Cairney had a “very large disc prolapse at the L4/5 segment”, but felt that the only surgical treatment appropriate was a microdiscectomy at that level.

3. Due to increasing back and leg symptoms, Mr Cairney was referred to Dr Darweesh Al-Kawaja, neurosurgeon. In a report dated 10 January 2013, Dr Al-Kawaja recommended that Mr Cairney’s spine be fused from L3 to S1, that is, he proposed a three level fusion. Dr Al-Kawaja sought approval from Allianz for this procedure. In the same letter, Dr Al-Kawaja noted that Mr Cairney sought a second opinion from Dr Peter Bentivoglio, neurosurgeon.

4. In a report dated 19 February 2013, Dr Bentivoglio said that, if Mr Cairney had surgery, he needed a fusion at L4/5 and S1, that is, a two-level fusion,…