there is no medical evidence indicating that she should not have been driving
Source
Original judgment source is linked above.
Catchwords
there is no medical evidence indicating that she should not have been driving
Judgment (4 paragraphs)
[1]
On 14 July 2020, Ashlee Brown was involved in a serious industrial accident. She was demolishing a brick wall in the course of her employment with Royal Park Salvage Pty Ltd when a clump of bricks broke off a wall striking her on her inner left thigh. As a result she suffered an injury to the saphenous nerve of her left thigh and she experience severe symptoms. In respect of this, she sought and obtained compensation under the Return to Work Act 2014 (the RTW Act).
Ms Brown was referred to the pain specialist, Dr Green. To alleviate her pain Dr Green recommended that Ms Brown undergo a trial of a subcutaneous implantation of a neuromodulation device and in March 2022, she underwent that procedure. No significant reduction of symptoms resulted from this trial and full implantation of the first neuromodulation device was not proceeded with.
In May 2022, Ms Brown underwent the trial of an alternative subcutaneous implantation of a neuromodulation device. This alternate device resulted in her achieving subjective symptom improvement and demonstrable consistency of outcome, and as a result, she sought approval of a permanent implantation procedure. That approval was granted by the Return to Work Corporation (the Corporation). Ms Brown underwent this procedure in about August 2022.
The implantation of the second neuromodulation device was from the time of its implantation effective in reducing Ms Brown's pain levels experienced by her as a result of the 14 July 2020 injury.
On 2 August 2024, Ms Brown was driving her car on St Bernards Road at Hectorville when another car failed to give way at a stop sign and drove into the left hand side of her vehicle. Ms Brown noticed that about twenty minutes after the accident, the symptoms in her left leg became significantly worse. Later that day, she consulted with her GP who referred her back to Dr Green.
Dr Green noted that the neuromodulation device was not functioning properly. It seems that because of the motor vehicle accident, the device was damaged and the damage has compromised its performance. This in turn has led to Ms Brown experiencing an increase in her pain levels, and a reduced tolerance for sitting, standing, and general mobility.
To improve the device's functionality, surgery needs to be undertaken to remove it from Ms Brown's body to enable it to be assessed and, depending upon the damage detected, for it to be repaired or replaced. It is anticipated that after repair or replacement Ms Brown's pain experiences will lessen and her tolerance for sitting, standing, and her general mobility will improve.
Ms Brown contends that the cost of this surgery and the repair or replacement of the device should be covered by RTW Act. Accordingly, she sought approval from the Corporation pursuant to s 33(17) of the RTW Act for approval to obtain these services.
By determination dated 29 November 2024, the Corporation, through its agent, rejected this application. It did so on the basis that "[t]he claimed cost is not covered by your benefits package as it was not reasonably incurred in consequence of you having suffered a work injury".
In maintaining its rejection of the application, the Corporation contends that the motor vehicle accident caused the recent issues that Ms Brown is experiencing with the device. It contends that as a matter of law, the motor vehicle accident should be seen as a novus actus interveniens, that is to say, a new intervening event that has broken the chain of causation.
The Corporation submits that it was no answer for Ms Brown to say that her present condition was caused by both the work injury and the motor vehicle accident operating concurrently. It submits that this ignores the basic facts underlying the treatment now required by her. It notes that before the motor vehicle accident the neuromodulation device was operating as it should, namely that it was ameliorating her symptoms of left leg pain and that it was only after the accident, that her symptoms became significantly worse.
As such, it submits that the motor vehicle accident should be seen as the intervening cause of the need for the treatment now sought - the previously stable symptomology in the left leg has been rendered worse by the motor vehicle accident not only damaging the device but also potentially causing additional injury. Hence it says that as a matter of common sense, absent the motor vehicle accident, none of this treatment would be required. Thus it contends that the collision was an intervening act, and the compensation for the medical treatment required is not the responsibility of the Corporation.
[2]
The primary entitlement to medical and like expenses is provided for by s 33(1) of the Act. The test is whether the costs "are reasonably incurred in consequence of having suffered a work injury".
In applying this phrase, whilst it is tempting to look at cases founded in the tort of negligence for guidance in a case such as this, it is important to recognise that the words of the statute do not import notions fundamental to the tort of negligence such as reasonable foreseeability. Indeed, several decisions of this Tribunal have expressly recognised that the term 'in consequence' is less stringent than the common law test of causation.[1]
That is not to say that the test postulated by s 33(1) is no more than a "but for test". As with determining issues of causation in the law of torts, there is undoubtedly a value judgment involved. The point can be reached where, notwithstanding a connection between the work injury and the later need for treatment, the significance of or circumstance of some other cause contributing to the need for such treatment might be such that it would be unfair, unreasonable or unjust to hold the compensating authority liable to meet it.[2]
If, for example, when she was injured in the motor vehicle accident, Ms Brown was driving at high speed with reckless indifference to her own safety and the safety of others, and in contravention of medical advice that she not drive, a case could be made out that it would not be fair, reasonable or just to hold the compensating authority liable to meet the cost of the treatment now claimed.
At the other extreme, if Ms Brown had been walking along the footpath and stumbled because of the lingering effects of her original injury and thereby damaged the device, there could be no doubt that the cost of any medical treatment to address the consequences of the later fall would rightly be regarded as having been incurred in consequence of her having suffered the original work injury.
The facts of this case lie somewhere between these two extremes, but in my opinion, they are much closer to the second example than the first. In this case there is no evidence that suggests that Ms Brown was doing anything other than driving normally when she was involved in her motor vehicle accident. There is no medical evidence indicating that she should not have been driving. Although her own negligence might have contributed to the collision, it would not appear to be gross negligence. Had she not sustained the original injury, she would not now need the surgery to investigate and repair or replace the device.
In all the circumstances, I am satisfied that the costs of surgery to investigate and repair or replace the device will be incurred in consequence of Ms Brown having suffered a work injury. Ms Brown's challenge to the decision rejecting her application must therefore be upheld. I shall hear from counsel as to the terms of what orders should now be made.