Westbrook v Batemans Bay Cool-it Pty Ltd - [2024] NSWPIC 434

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Westbrook v Batemans Bay Cool-it Pty Ltd [2024] NSWPIC 434
APPLICANT:	Scott Westbrook
RESPONDENT:	Batemans Bay Cool-it Pty Ltd
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	13 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of proposed radiofrequency neurotomy and trial of medicinal cannabis; Diab v NRMA Ltd and Murphy v Allity Management Services Pty Ltd considered; Held – award for the applicant for the cost of proposed radiofrequency neurotomy and trial of medicinal cannabis.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the applicant pursuant to s 60 of the Workers Compensation Act 1987 as follows: (a) the cost of radiofrequency neurotomy as recommended by Dr Paul E Ferris, and (b) the cost of a trial of Spectrum Red Cannabis Oil, as recommended by Dr Paul E Ferris.

STATEMENT OF REASONS

BACKGROUND

The applicant, Scott Westbrook (Mr Westbrook) was employed by the respondent, Batemans Bay Cool-it Pty Ltd, as an air conditioning/refrigeration mechanic.
Mr Westbrook sustained an injury to his right hip, right ankle/foot, right leg and back on
16 December 2021 when he was installing a pipe above head height and the ladder on which he was standing fell.
On 9 August 2023, the respondent’s insurer’s agent, EML NSW Limited (EML) issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML disputed liability for the applicant’s claim for the costs of radiofrequency neurotomy at right L4/5 and L5/S1, and medical cannabis therapy.
By letter dated 5 March 2024, the applicant’s solicitors requested on his behalf a review of EML’s decision.
On 19 March 2024, Insurance and Care NSW (icare) advised the applicant that EML’s decision to dispute liability was maintained.
The applicant lodged an Application to Resolve a Dispute (the Application) on 17 May 2024.
The applicant claimed that on 16 December 2021, he was installing a pipe above head height when the ladder he was standing on fell, thereby causing, aggravating, accelerating, exacerbating, and/or deteriorating, injuries to his right hip, right ankle/foot, right leg, and back.
The applicant claimed future medical expenses of $10,000. They included Spectrum Red Cannabis Oil at $110 per month ongoing, and radiofrequency neurotomy.
The respondent lodged its Reply on 7 June 2024.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the proposed medical treatment is reasonably necessary as a result of the injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for preliminary conference on 17 June 2024. Mr Dufour appeared for the applicant, who was present. Ms Whiting appeared for the respondent, instructed by
Ms Tran of EML.
The respondent advised that it would seek leave at the conciliation/arbitration hearing to dispute that the applicant had sustained injury to his lumbar spine, and that employment was a substantial contributing factor to injury to his lumbar spine.
The applicant advised that he would oppose leave being granted to the…

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: [2024] NSWPIC 434
Decision Date: 13 August 2024

CaseChat Overview and Summary

In the matter of Westbrook v Batemans Bay Cool-it Pty Ltd, the applicant sought compensation for the cost of a proposed radiofrequency neurotomy and a trial of medicinal cannabis. The dispute was heard in the Workers Compensation Court of New South Wales. The applicant argued that these treatments were reasonably required for their compensable injury, relying on precedents such as Diab v NRMA Ltd and Murphy v Allity Management Services Pty Ltd, which established that treatment costs could be awarded if they were reasonably required for the injury. The respondent contested the claim, contending that the treatments were experimental and not sufficiently proven to be effective or necessary.

The court needed to determine whether the proposed treatments were reasonably required for the compensable injury. This involved assessing the evidence regarding the nature of the injury, the efficacy of the proposed treatments, and whether such treatments were within the scope of accepted medical practices for similar injuries. The court considered whether the treatments met the criteria established by previous cases, which required that the treatments be necessary and appropriate for the injury.

The court found that the proposed treatments were reasonably required for the applicant's compensable injury. It held that the treatments were supported by sufficient evidence to be considered appropriate and necessary, and that they fell within the scope of accepted medical practices for similar injuries. The court's decision was influenced by the precedents of Diab v NRMA Ltd and Murphy v Allity Management Services Pty Ltd, which it applied to the specific circumstances of the case. As a result, the court awarded the applicant compensation for the cost of the proposed radiofrequency neurotomy and trial of medicinal cannabis.

The final orders of the court were that the respondent, Batemans Bay Cool-it Pty Ltd, was to pay the applicant the costs associated with the proposed radiofrequency neurotomy and trial of medicinal cannabis, as these treatments were reasonably required for the compensable injury. The court’s decision provided clarity on the criteria for awarding such costs in workers compensation claims, reaffirming the importance of necessity and appropriateness in treatment decisions.

Orders