Amcor v Whelan (WorkCover)
[2018] VMC 3
•27 March 2018
| IN THE MAGISTRATES' COURT OF VICTORIA |
AT MELBOURNE
Case No.J10658001
| AMCOR LTD | Applicant - Employer |
| V | |
| RICK WHELAN | Respondent - Worker |
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MAGISTRATE: | Magistrate B.R. Wright |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 March 2018 |
DATE OF DECISION: | 27 March 2018 |
MEDIUM NEUTRAL CITATION: | [2018] VMC003 |
REASONS FOR DECISION
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Workers Compensation – Application for Revocation of Conciliator Officer’s Direction – Hearing De Novo – “Genuine Dispute” – Effect of Resolution of Dispute at Earlier Conciliation – Accident Compensation Act 1985 ss 99 - Workplace Injury Rehabilitation and Compensation Act 2013 ss 296(2)(d) &(3), 297(9) &(10), 299(2), 313(4).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Richards | Spark Helmore |
| For the Respondent | Mr M Roche | Slater & Gordon |
HIS HONOUR:
1 This is an application pursuant to s.299(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2 The application is to revoke a Direction made by a Conciliation Officer on 8 March 2018 to the effect that Amcor Ltd (“the employer”) pay the reasonable costs of medical services (which were the cleaning and maintenance of hearing aids), up to a total of $506.84.
3 The employer submits that because of an agreement reached as part of an earlier conciliation between the same parties on 9 August 2016, in which it agreed to pay the fixed amounts of two hearing aids, Mr Whelan (“the worker”) is precluded from making this claim pursuant s.296(3) of the Act.
4 That was the only argument raised as to any arguable case in support of there being a “genuine dispute” pursuant to s.297(10) of the Act. Of course, if there is no arguable case in support of the denial of liability, then a Direction to pay compensation may be made in accordance with Act.
5 There was a possible other argument as to whether fixing the relevant amount for cleaning and maintenance was “ultra vires” the Act. However, I note that the Conciliator directed the reasonable costs be paid up to a total of $506.84, which appears to me that comes within the Conciliator's powers pursuant to s.297(9) of the Act.
6 It was agreed between the parties that the worker had been employed by the employer up to 2009 when he retired. On 15 October 2015, he lodged a claim form seeking reasonable medical and like expenses for hearing loss “due to working in a noisy environment”.
7 On the claim form, he stated he had worked as a machine operator for the employer from 1963 through to 1 July 2009. He is now aged 73 years old.
8 By Notice dated 19 January 2016, the employer denied his claim on the basis he was not a “worker", presumably on the basis that he was retired. More importantly, it also alleged he did not suffer a work-related injury in his employment at Amcor. It referred to a proposed medical examination by Mr Hugh Miller, an ENT surgeon, on 27 January 2016.
9 In a report from Mr Miller, dated 27 January, taking into account presbycusis and other non-compensable loss, he assessed compensable loss at 7.7 per cent binaural. He stated then that the worker required binaural hearing aids for the combined pathologies of which noise damage was approximately one half. However, in a brief subsequent report, he said that 7.7 per cent compensable binaural loss alone did not justify hearing aids and that he usually advised a 10 per cent binaural loss is necessary.
10 As stated, the matter came before the Accident Compensation Conciliation Service and an Outcome Certificate dated 9 August 2016 was issued. Ignoring formal and irrelevant parts, the Conciliation Certificate states as follows:-
"As an agreement with no admission of liability, the self-insurer agrees to pay the cost of recommended hearing device and associated costs per the request dated 15 October ($3728) on the provision of an itemised invoice. In addition, the self-insurer agrees to pay the worker a lump sum of $1795 towards the cost of a second set of hearing aids. The parties agreed that this dispute is resolved on these terms, pursuant to s.296(2)(d) of the Work Act, this outcome certificate certifies each party to this dispute is bound by this result and these terms and resolution. This outcome certificate is evidence of the resolution of this dispute between the parties and the terms on which this dispute has been resolved."
11 On 9 November 2017 the worker submitted a request that liability be accepted for costs associated with the cleaning and maintenance of hearing aids. That invoice, for $506.84, covered such items as battery supply, wax cleaning and what is referred to as “drones” and “receivers”. The employer rejected payment of the invoice on the basis that there was no ongoing liability to pay for medical services.
12 Meanwhile on 7 February 2017, the worker submitted a claim for impairment benefits for the same hearing loss, having not returned to work in the meantime.
13 That claim was accepted on 26 April 2017 by the employer. Ultimately, the relevant impairment was assessed by a medical panel by way of an Opinion dated 1 September 2017 specifying a permanent 10 per cent whole person impairment.
14 Subsequently, the employer determined an entitlement to $16,520 for the impairment benefit based on the 10 per cent whole person impairment assessment.
15 The rejection of payment of cleaning and maintenance of hearing aids came before a different Conciliation Officer. In an Outcome Certificate dated 2 March 2018, he determined that there was no arguable case in support of denial of liability to make the payment of $506.84.
16 He directed the employer to pay the reasonable costs of services specified in s.99 of the Accident Compensation Act up to a total of $506.84 in respect of the relevant injury.
17 Of course, the proceedings before me are not an appeal but are heard de novo (see, FAI v Krillis [1995] VCC 34).
18 For completeness, I note that the Conciliation Officer determined that the worker now had a confirmed 10 per cent binaural hearing loss and the independent medical expert, Mr Miller had stated that a 10 per cent loss entitled hearing aids.
19 He stated the current dispute related to costs associated with the maintenance of such aids should therefore be also be paid by the employer. He then made the direction as indicated before.
20 Counsel for the employer submitted that s.296(3) was a complete answer to the worker's new claim for cleaning and maintenance of the hearing aid. There was no further or different injury, he having not worked for the employer since 2009.
21 The earlier dispute had been resolved by agreement and the Conciliation Officer had certified each party was bound by the Outcome Certificate issued pursuant to s.296(2)(d). There was no change of circumstances from the time of the original conciliation before the Accident Compensation Conciliation Service.
22 Mr Miller had submitted that the worker did not require any hearing aid in his earlier report. In those circumstances, there was an arguable dispute as to denial of liability if not a complete answer to the further claim for cleaning and maintenance of the hearing aids. He submitted that the later admission of liability and the Opinion of the medical panel were irrelevant.
23 Counsel for the worker conceded that there was an agreement as to the rejected claim for payment of the hearing aids. However, in this case there had been a new claim for a different benefit, that is, for an impairment benefit, as opposed to the earlier claim for reasonable medical and like expenses for hearing aids. The new impairment benefit claim was admitted and thus gave rise to a new entitlement.
24 Mr Miller had previously stated that he would advise a 10 per cent binaural compensable loss was necessary before justifying the fitting of hearing aids.
25 I determine in this case that there is no “arguable case in support of the denial of liability” for the claim for cleaning and maintenance of the hearing aids. I believe that the employer has misconstrued the applicability, and the scope, of the resolution of dispute provisions in s.296(2)(d) and s.296(3) in this case.
26 Although there was an initial formal denial of liability, that formal denial of injury related to the initial claim for hearing aids. The Notice at that stage set out no medical evidence in support of its contention that there was no relevant work-related hearing loss injury. However, it did state that he was to be assessed by Mr Miller.
27 The Rejection Notice was reviewed after the two reports of Mr Miller were to hand. As stated, those reports assessed work-related hearing loss at 7.7 per cent binaural. However, Mr Miller stated such reading "did not justify fitting of hearing aids." The employer in reviewing its Notice then maintained its early decision to deny liability for the hearing aids.
28 It is important to note that the worker is not seeking any further hearing aids, apart from those specified in the first Outcome Certificate. He merely seeks cleaning and maintenance of his hearing aids. There was no evidence lead, and there is nothing in the first Outcome Certificate, to include or exclude such cleaning and maintenance expense, let alone binding the worker in that regard.
29 I do not see how cleaning and maintenance expenses can expressly or impliedly be contemplated in any such resolution. As stated, it may have been different (without determining that point), if he had been claiming for a further hearing aid. There is nothing in the certificate to indicate cleaning and maintenance issues, such as new batteries, were contemplated at the time of, let alone included in, that certificate.
30 In any event, after the first Outcome Certificate the employer then admitted liability for the same work-related hearing loss injury. The medical panel did not determine liability. That had been done by the employer beforehand. Rather, it assessed the work related whole person impairment at 10 per cent.
31 The employer quite rightly has paid impairment benefits calculated at the 10 per cent figure. The medial panel Opinion is binding on all parties, and the court, pursuant to s.313(4) of the Act.. All this took place prior to the submission of the later claim for cleaning and maintenance expenses. Of course, if there is a work-related injury then the worker is entitled reasonable medical and like expenses pursuant to s.99(1) of the Accident Compensation Act 1985 in respect of that injury.
32 There is no note of any other medical material in this case, apart from Mr Miller's two reports and the medical panel Opinion. Based on Mr Miller's second report recommending hearing aids only if the work-related loss was 10 per cent, I do not believe that there is any arguable case for the need for hearing aids on the employers own medical evidence before it at the time of that decision.
33 Once hearing aids are required, I do not see why cleaning and maintenance, especially wax cleaning and battery replacement, should not follow subject to issues of reasonableness, which was the Conciliation Officer's appropriate direction. Any dismissal of the revocation does not affect any argument as to reasonableness of, or the need for, the expense as a matter on the merits.
34 In any event, the employer maintains no argument as to repair or maintenance as not being warranted for any hearing aid before me.
35 I see nothing in QBE v Keep (Mag. Crt., per Lauritsen DCM, del 24 July 2009) and Somerville v Vi [2008] VSC 196, two relevant decisions as to “genuine dispute”, that means that I should not make the following order.
36 I therefore dismiss the application for revocation and consequently the direction stands.
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