BlueScope Steel Ltd v Jovanovski - [2015] NSWWCCPD 44

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	BlueScope Steel Ltd v Jovanovski [2015] NSWWCCPD 44
APPELLANT:	BlueScope Steel Ltd
RESPONDENT:	George Jovanovski
INSURER:	Self-insured
FILE NUMBER:	A1-6959/13
ARBITRATOR:	Ms A Nicholl
DATE OF ARBITRATOR’S DECISION:	16 April 2015
DATE OF APPEAL HEARING:	27 July 2015
DATE OF APPEAL DECISION:	31 July 2015
SUBJECT MATTER OF DECISION:	Claim for future hospital and medical expenses; existing claim; whether claim exempt from the operation of s 59A of the Workers Compensation Act 1987; whether, in the circumstances of the case, an Arbitrator entitled to determine whether worker suffers permanent impairment; whether worker’s claim satisfied the requirements of cl 28 of Pt 2 of Sch 8 to the Workers Compensation Regulation 2010
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr C Tanner, instructed by Bartier Perry
Respondent:	Mr M Boulton, instructed by RMB Lawyers
ORDERS MADE ON APPEAL:	1. Paragraphs 1 and 2 and the second sentence of paragraph 3 of the Certificate of Determination of 16 April 2015 are confirmed. 2. Paragraph 3 of the Certificate of Determination of 16 April 2015 is amended by deleting the first sentence in that paragraph and inserting the following in its place: “By operation of Pt 2 of Sch 8 of the Workers Compensation Regulation 2010, the applicant worker’s claim is an existing claim and, by operation of cl 28, is exempt from the operation of s 59A of the Workers Compensation Act 1987.”

INTRODUCTION

This case involves a claim for the cost of proposed surgery to repair a right inguinal hernia and a traumatic right hydrocele. Prima facie, the right to recover compensation for the cost of that surgery is governed by s 59A of the Workers Compensation Act 1987 (the 1987 Act). In broad terms, s 59A limits the payment of compensation for treatment, service or assistance to a period of 12 months after a claim for compensation is made or 12 months after weekly payments of compensation cease. The section does not apply if a worker is a “seriously injured worker”, as defined in s 32A of the 1987 Act (s 59A(4)). The Arbitrator held that the worker is a seriously injured worker, as defined, and that s 59A does not apply to him. The appellant employer has challenged that finding.
However, the arbitration proceeded on the wrong basis. The parties now agree that the worker’s claim is an “existing claim”, that is, it is a claim that was made before 1 October 2012. That means that the worker’s right to recover compensation under Div 3 of Pt 3 of the 1987 Act (which includes compensation for hospital and medical expenses in s 60) is governed by Pt 2 of Sch 8 to the Workers Compensation Regulation 2010 (the Regulation), which was introduced by the Workers Compensation Amendment (Existing Claims) Regulation 2014 and commenced operation on 3 September 2014. If a worker’s claim comes within the terms of cl 28…

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: [2015] NSWWCCPD 44
Decision Date: 31 July 2015

CaseChat Overview and Summary

BlueScope Steel Limited brought a claim against its employee, Mr. Jovanovski, in the Federal Circuit Court of Australia regarding an existing claim for future hospital and medical expenses. The court was tasked with determining whether Mr. Jovanovski's claim was exempt from the operation of section 59A of the Workers Compensation Act 1987 and whether the Arbitrator had the authority to decide whether the worker suffered a permanent impairment. Additionally, the court needed to ascertain whether the worker's claim met the requirements of clause 28 of Part 2 of Schedule 8 to the Workers Compensation Regulation 2010.

The court examined the legislative framework and found that Mr. Jovanovski's claim was indeed an existing claim as defined by the Workers Compensation Regulation 2010. Consequently, it was exempt from the operation of section 59A of the Workers Compensation Act 1987, which generally requires that a claim for future medical expenses be lodged within a specific time frame. The court further held that the Arbitrator had the jurisdiction to determine whether the worker suffered permanent impairment, as the existing claim fell within the scope of the regulation. The court also determined that Mr. Jovanovski's claim satisfied the requirements of clause 28 of Part 2 of Schedule 8 to the Workers Compensation Regulation 2010.

In light of the above findings, the court confirmed certain paragraphs of the Certificate of Determination of 16 April 2015, while amending another paragraph to reflect that the claim was an existing claim exempt from section 59A of the Workers Compensation Act 1987. This amendment clarified the legal status of the claim and the applicable legislative provisions. The court's decision provided clarity on the scope of the Arbitrator's jurisdiction and the requirements for claims under the Workers Compensation Act 1987 and the Workers Compensation Regulation 2010.

The court's final orders confirmed paragraphs 1 and 2 and the second sentence of paragraph 3 of the Certificate of Determination of 16 April 2015, while amending paragraph 3 by deleting the first sentence and inserting a new sentence to clarify that Mr. Jovanovski's claim was an existing claim exempt from section 59A of the Workers Compensation Act 1987. This decision provided a clear legal framework for future claims and the determination of permanent impairment in similar cases.

Orders

Orders of the court

1. Paragraphs 1 and 2 and the second sentence of paragraph 3 of the Certificate of Determination of 16 April 2015 are confirmed.

2. Paragraph 3 of the Certificate of Determination of 16 April 2015 is amended by deleting the first sentence in that paragraph and inserting the following in its place:

“By operation of Pt 2 of Sch 8 of the Workers Compensation Regulation 2010, the applicant worker’s claim is an existing claim and, by operation of cl 28, is exempt from the operation of s 59A of the Workers Compensation Act 1987.”

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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