| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Watson’s Culcairn Hotel Pty Ltd v Dwyer [2016] NSWWCCPD 5 | |
| APPELLANT: | Watson’s Culcairn Hotel Pty Ltd | |
| RESPONDENT: | Kevin Dwyer | |
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-5303/14 | |
| ARBITRATOR: | Mr G Brown | |
| DATE OF ARBITRATOR’S DECISION: | 15 October 2015 | |
| DATE OF APPEAL DECISION: | 25 January 2016 | |
| SUBJECT MATTER OF DECISION: | Claim for the cost of proposed hospital and medical treatment; assessment of medical evidence; correct test to apply in claim for cost of hospital and medical treatment; whether need for proposed treatment reasonably necessary as a result of work injury; aggravation of pre-existing condition; relevance of prior symptoms; s 60 of the Workers Compensation Act 1987; whether history recorded provided a fair climate for the acceptance of medical expert’s opinion; application of principles in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510 and Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; failure to give reasons for rejecting employer’s medical experts; approach to claim for medical and hospital expenses for consequential conditions; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 | |
| PRESIDENTIAL MEMBER: | Acting President Bill Roche | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Sparke Helmore Lawyers |
| Respondent: | Slater + Gordon Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The name of the appellant employer is amended to be Watson’s Culcairn Hotel Pty Ltd. 2. For the reasons given by the Arbitrator, and the additional reasons in this decision, the Arbitrator’s determination of 15 October 2015 is confirmed. | |
INTRODUCTION
This appeal concerns an Arbitrator’s factual finding that certain proposed medical treatment, namely a total left knee replacement, right carpal tunnel release, right shoulder physiotherapy and cervical traction and immobilisation of the cervical spine, is reasonably necessary as a result of an accepted injury to the left knee. For the reasons explained below, the appeal is unsuccessful.
BACKGROUND
The respondent worker, Kevin Dwyer, worked for the appellant employer, Watson’s Culcairn Hotel Pty Ltd (wrongly sued as Watsons Culcairn Hotel Pty Ltd), as a part-time gardener. On 8 November 2012, he fell in the course of his employment and injured his left knee and right hand (the hand injury from this fall appears to have been of little consequence and resolved without any treatment) (the 2012 injury). He continued to work until he saw his general practitioner on 15 November 2012, but has not worked since that date.
The insurer initially accepted liability and paid compensation until 13 June 2013.
Mr Dwyer’s treating orthopaedic surgeon, Dr Khoury, recommended that he undergo arthroscopic surgery on his left knee. In a s 74 notice dated 13 May 2013, the appellant’s insurer disputed liability for the cost of that surgery.
As a result of the injury to his left knee, and the resulting pain and instability, Mr Dwyer alleged that his…
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- AGLC
- Watson's Culcairn Hotel Pty Ltd v Dwyer [2016] NSWWCCPD 5
- Case
- [2016] NSWWCCPD 5
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the need for the proposed treatment was reasonably necessary as a result of a work injury, and if the employer had properly assessed the medical evidence provided by Dwyer. Specifically, the Court needed to determine the correct test to apply in assessing claims for the cost of hospital and medical treatment, particularly in cases where the claimant suffered from an aggravation of a pre-existing condition. The relevance of prior symptoms and the adequacy of the history recorded in the medical records were also considered. Furthermore, the Court had to examine whether the employer had failed to give reasons for rejecting the employer’s medical experts and the approach to claims for medical and hospital expenses for consequential conditions.
In delivering its judgment, the Court confirmed the Arbitrator’s determination, emphasizing the need for a fair assessment of medical evidence and the application of principles from relevant case law. The Court held that the Arbitrator had correctly applied the principles set out in Paric v John Holland (Constructions) Pty Ltd and Hancock v East Coast Timber Products Pty Ltd, ensuring that the history recorded provided a fair climate for the acceptance of the medical expert’s opinion. The employer's failure to give reasons for rejecting its own medical experts was noted, but the Court found that this did not undermine the overall fairness of the assessment. The principles from Kooragang Cement Pty Ltd v Bates were also considered, reinforcing the approach to claims for consequential medical conditions. The Court ultimately upheld the Arbitrator's decision, confirming that the employer was not liable to pay for the proposed treatment.
Orders
Orders of the court
1. The name of the appellant employer is amended to be Watson’s Culcairn Hotel Pty Ltd.
2. For the reasons given by the Arbitrator, and the additional reasons in this decision, the Arbitrator’s determination of 15 October 2015 is confirmed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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