DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:
Cessnock City Councilv Thatcher [2023] NSWPICPD 28
APPELLANT:
Cessnock City Council
RESPONDENT:
Phillip Mark Thatcher
INSURER:
StateCover Mutual Limited
FILE NUMBER:
A1-W5574/21
PRESIDENTIAL MEMBER:
Acting Deputy President Kylie Nomchong SC
DATE OF APPEAL DECISION:
23 May 2023
ORDERS MADE ON APPEAL:
1. The Certificate of Determination dated 31 January 2022 is revoked.
2. The matter is remitted for re-determination by a different member.
CATCHWORDS:
WORKERS COMPENSATION – section 60 of the Workers Compensation Act 1987 – whether provision of hearing aids is reasonably necessary – assertion by employer to the Member that the suffering of tinnitus was not work related – the Member proceeded on the basis that tinnitus was not disputed – whether Member proceeded on an incorrect basis
HEARING:
On the papers
REPRESENTATION:
Appellant:
Ms H Ulmer, solicitor
Moray & Agnew
Respondent:
Mr M Bechelli, solicitor
Whitelaw McDonald
DECISION UNDER APPEAL
MEMBER:
Ms J Snell
DATE OF Member’s DECISION:
31 January 2022
INTRODUCTION
On 15 May 2020, Phillip Thatcher (the respondent to the appeal) made a claim for industrial deafness relying on the deeming provisions of s 17 of the Workers Compensation Act 1987 (the 1987 Act) with the deemed date of injury being 30 June 2018.[1] Liability was accepted on the basis that the appellant was the last noisy employer.[2]
[1] Application to Resolve a Dispute (ARD), p 1.
[2] Appellant’s submissions 28 February 2022, [14]–[15].
However, the respondent also made a claim for the cost of hearing aids in the amount of $6,426.00. The appellant denied liability for the hearing aids asserting that they were not reasonably necessary treatment within the meaning of s 60 of the 1987 Act.
On 31 January 2022, the Member determined that binaural hearing aids were reasonably necessary treatment for the work related hearing loss and tinnitus that the respondent had sustained. As a result, the Member made an award for the costs associated with those hearing aids pursuant to s 60 of the 1987 Act.[3]
The respondent’s employer, Cessnock City Council (the appellant), has appealed that determination. The grounds of the appeal are twofold:
(a) the Member erred in her reasons that liability for tinnitus had been conceded (Ground One), and
(b) the Member erred in her finding that the hearing aids were compensable (Ground Two).
As the Court of Appeal held in Iqbal v Hotel Operation Solutions Pty Ltd,[4] by reason of s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) the nature of an appeal is limited to a determination of whether the decision was affected by any error of fact, law or discretion. The appeal is not a review or new hearing. If the basis of the appeal is an alleged error of fact, the appellant must establish not merely a preference for a different view of the evidence, but an error in…
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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AGLC
Cessnock City Council v Thatcher [2023] NSWPICPD 28
Case
[2023] NSWPICPD 28
Decision Date
CaseChat Overview and Summary
Cessnock City Council contested a determination made by a workers' compensation Member, which had ruled that the Council must provide the appellant, a former employee, with hearing aids as a reasonable necessity. The Council argued that the Member had proceeded on the incorrect basis that the appellant's tinnitus was undisputed and not work-related. The Council asserted that the tinnitus was not work-related and, therefore, the provision of hearing aids was not reasonably necessary.
The central legal issues before the Court were whether the Member correctly found that the appellant's tinnitus was not disputed and whether the Member correctly concluded that the provision of hearing aids was reasonably necessary. The Court had to determine if the Member's findings were legally sound and based on the correct factual premises. The Council's argument was that the Member had proceeded on an incorrect basis, which could have led to an erroneous conclusion regarding the necessity of the hearing aids.
The Court found that the Member had indeed proceeded on an incorrect basis by treating the appellant's tinnitus as undisputed and not work-related. The Court noted that the Member's findings were based on an incorrect premise and, therefore, the decision was flawed. Consequently, the Court revoked the Certificate of Determination and ordered that the matter be remitted for re-determination by a different Member. This ensures that the case is reviewed with the correct factual and legal considerations in mind.
Orders
Orders of the court
ORDERS MADE ON APPEAL:
1. The Certificate of Determination dated 31 January 2022 is revoked.
2. The matter is remitted for re-determination by a different member.