Injury at Work and Again While Being Rehabilitated, Injury or Not? Reasonableness of Treatment


Co-authored by Sophie Nauwelaers (previously with Kott Gunning Lawyers)

In Smith v WA Plantation Resources Pty Ltd [2017] WADC 8, Mr Smith sustained a left shoulder injury at work. Liability was accepted. Mr Smith eventually started a return to work program but then sustained a right shoulder injury during the course of this. Mr Smith argued the right shoulder injury was a compensable injury in its own right but Plantation Resources argued it was a temporary aggravation of the original left shoulder injury so its liability to pay compensation was limited to the left shoulder injury.

The matter then proceeded to arbitration with the following issues in play:

  • whether the right shoulder injury was a separate injury under the Workers’ Compensation and Injury Management Act 1981 (the Act);
  • the extent, if any, of Mr Smith’s incapacity resulting from that injury; and
  • whether right shoulder surgery, together with incidental expenses, were ‘reasonable’ as defined under the Act.

Although it was held that the right shoulder injury was compensable under the Act, the Arbitrator was of the opinion the right shoulder injury was not a material contributing cause to Mr Smith’s incapacity as the medical evidence indicated that this was still due to his left shoulder injury. As regards reasonableness of treatment, the Arbitrator found that the proposed surgery was not reasonable as it was doubtful whether it would result in Mr Smith returning to full capacity.

Mr Smith appealed to the District Court. In considering the appeal, Troy DCJ found the Arbitrator’s analysis as to whether the right shoulder injury resulted in total incapacity was correct and dismissed the appeal on the first ground. As to reasonableness, Troy DCJ found that the Arbitrator erred when only taking into account a lack of confidence that the proposed surgery would result in the worker returning to total capacity, and failing to take into account the prospect of the proposed surgery improving the worker’s quality of life, which was also relevant.

The appeal was therefore allowed, the result of which was that the worker was entitled to payment for the proposed surgery.

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