Tunks v Patrick Stevedores Holdings Pty Ltd - [2023] NSWPIC 618

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tunks v Patrick Stevedores Holdings Pty Ltd [2023] NSWPIC 618
APPLICANT:	Russel Tunks
RESPONDENT:	Patrick Stevedores Holdings Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	17 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 4, 15, 16 and 60; injury to the lumbar spine disputed; proposed surgery to the lumbar spine dispute disputed; Kooragang Cement Pty Ltd v Bates, Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Military Rehabilitation and Compensation Commission v May, Ariton Mitic v Rail Corporation of NSW, Perry v Tanine Pty Ltd t/as Ermington Hotel, Rail Services Australia v Dimovski, P & O Berkeley Challenge Pty Ltd in the interest of HIH Winterthur Workers Compensation (NSW) Pty Ltd v Alfonson, Rose v Health Commission (NSW), Diab v NRMA Limited, Murphy v Allity Management Services Pty Ltd considered and applied; Held – on the balance of probabilities the applicant sustained injury to his lumbar spine being an aggravation and exacerbation of a disease condition pursuant to section 4(b)(ii) with a deemed date of injury of 6 March 2023; the L5/S1 minimally invasive transforaminal lumbar interbody fusion surgery proposed by Dr Diwan is reasonably necessary as a result of the work-related injury which the applicant has sustained to his lumbar spine.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant sustained injury to his lumbar spine as defined by s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) with a deemed date of injury of 6 March 2023. 2. That the L5/S1 minimally invasive transforaminal lumbar interbody fusion surgery proposed by Dr Diwan is reasonably necessary treatment as a result of the injury sustained to the lumbar spine within the meaning of s 60 of the 1987 Act. The Commission orders: 3. Pursuant to s 60 of the 1987 Act the respondent is ordered to pay the costs of and ancillary to the L5/S1 minimally invasive transforaminal lumbar interbody fusion surgery proposed by Dr Diwan.

STATEMENT OF REASONS

BACKGROUND

Russel Tunks, the applicant, commenced employment with Patrick Stevedores Holdings Pty Limited, the respondent, in February 1989. In the course of his employment with the respondent the applicant’s duties have included those of a plant fitter, straddle crane operator, reach stacker operator, quay crane operator and team leader.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which he alleges that he sustained injury to his lumbar spine:
i)     on 13 February 1997 when whilst in the course of his employment with the respondent he lifted a heavy tyre into the tray of a breakdown truck;
ii)     on 6 October 2006 as a result of driving a straddle crane over potholes, and
iii)    as a result of the nature and conditions of his employment with the respondent which involved constant and repetitive lifting and bending, operating straddle cranes, operating quay cranes,…

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 618
Decision Date: 17 November 2023

CaseChat Overview and Summary

In the matter of Tunks v Patrick Stevedores Holdings Pty Ltd, the applicant, Tunks, sought a determination of injury and the advisability of proposed surgery in relation to his lumbar spine. The case was heard in the Workers Compensation Dust Diseases Tribunal of New South Wales. The primary dispute involved whether Tunks had sustained an injury to his lumbar spine and, if so, whether the proposed surgery by Dr Diwan was reasonably necessary.

The tribunal had to resolve two main legal issues: first, whether Tunks had indeed sustained an injury to his lumbar spine, and second, if the proposed minimally invasive transforaminal lumbar interbody fusion surgery was reasonably necessary due to the work-related injury. The court considered the relevant provisions of the Workers Compensation Act 1987, including sections 4, 15, 16, and 60, and examined various judicial precedents such as Kooragang Cement Pty Ltd v Bates, Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear, Military Rehabilitation and Compensation Commission v May, and others.

The tribunal found that, on the balance of probabilities, Tunks had sustained an injury to his lumbar spine, specifically an aggravation and exacerbation of a disease condition, pursuant to section 4(b)(ii) of the Workers Compensation Act 1987. The deemed date of injury was determined to be 6 March 2023. Furthermore, the tribunal concluded that the proposed surgery by Dr Diwan was reasonably necessary as it was a result of the work-related injury to Tunks' lumbar spine. The tribunal applied the relevant statutory provisions and case law to reach this decision.

The tribunal made an order determining that Tunks sustained an injury to his lumbar spine on 6 March 2023 and that the proposed surgery by Dr Diwan is reasonably necessary.

Orders