Case Summary: Hawker Pacific Pty Ltd v Lang 
In December 2015 the Supreme Court handed down a decision on an
appeal against an arbitrator's determination on an application
by an injured worker for medical expenses. An appeal against the
arbitrator's determination allowing the claim for expenses had
been taken to the District Court but dismissed. The Supreme
Court was required to consider whether there had been an error of
law on the part of the arbitrator and Eaton J in the District
The respondent (Lang) had suffered compensable injury to her
left wrist in 2007 whilst employed as an administrative assistant
by the appellant (the 2007 injury). She claimed compensation for at
least one or two additional work related injuries in 2009 and 2010,
however these were not held to be compensable injuries for
The appellant accepted liability for the 2007 injury and the
treatment including some initial surgical procedures. Mrs Lang
however continued to suffer symptoms in her left wrist though
returning to work. Some years later her surgeon recommended
that she have left wrist fusion surgery. Mrs Lang claimed the
cost of the surgery as an expense related to the 2007 injury.
The issue before the arbitrator was whether the expenses that
would be incurred by the wrist fusion were "reasonable
expenses" within the meaning of clause 17 of Schedule 1 of the
Act of the Workers Compensation and Injury Management Act
1981. The arbitrator agreed with the respondent that the
fusion surgery was a reasonable expense and made an award
accordingly. The appellant appealed the arbitrator's
finding and the appeal was held by Eaton DCJ in the District
Court. The learned Judge held that none of the
appellant's grounds of appeal had been made out and refused
leave to appeal.
This resulted in the appeal to the Court of Appeal and a
reversal of the decision. The Court of Appeal held that the need
for the wrist surgery had not been shown to be connected with the
original 2007 injury. It was unclear from the medical
evidence whether the need for fusion surgery was related to the
2009 injury or to some other cause, but the "required
connection" under clause 17 of Schedule 1 of the Act between
the need for surgery and the 2007 injury had not been
established. The Court of Appeal held that Eaton DCJ had
erred in law in both declining to undertake a review of the
evidence relevant to the grounds of appeal and accepting that the
arbitrator had provided sufficient reasons for finding a causal
relationship between the 2007 injury and the need for surgery.
The appellant in fact contended there was no evidence to support
the arbitrator's finding that the need for surgery was causally
related to the 2007 injury and the Court of Appeal did not
disagree. The Court of Appeal did not consider that any further
review of the evidence was warranted and set aside the
arbitrator's decision, allowing leave to appeal and dismissing
the claim for the surgery expenses.
What is particularly noteworthy in the reasons for decision of
the Court of Appeal is the extent to which an examination of the
particular features of the medical evidence was relevant to that
decision. Critical to their findings had been the diagnoses
formulated of different wrist conditions that had affected Mrs Lang
at different times and the question of which particular problem
resulted in a need for further surgery.
The court in fact lamented some difficulty in dealing with the
technical evidence resulting from the need to simply consider the
medical reports without the benefit of any particular explanation
or elaboration from the medical experts. The court did however
reach a unanimous decision on the conclusions to be drawn from the
evidence with the decision on appeal essentially being made
possible by the conclusion that there was in fact no evidence to
support the arbitrator's finding of the relevant connection
between the 2007 injury and the requirement for surgery.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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