Gaida v Q-Comp

[2007] QSC 197

SUPREME COURT OF QUEENSLAND

CITATION:

Gaida v Q-Comp and Anor [2007] QSC 197

PARTIES:

KLAUS GAIDA
(applicant)
v
Q-COMP
(first respondent)
QANTAS AIRWAYS LIMITED
(second respondent)

FILE NO:

BS3288 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2007

JUDGE:

Mackenzie J

ORDERS:

1.   The application is refused;

2.   It is ordered that the applicant pay the second respondent’s costs of and incidental to the application; and

3.   There be no order as to costs in relation to the first respondent           

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – JURISDICTION OF COURTS, TRIBUNALS, COMMISSIONS AND BOARDS – where applicant’s claim against employer for workers compensation for industrial deafness was rejected – where decision set aside by first respondent and referred to Medical Assessment Tribunal – where Tribunal found for the applicant – where insurer accepted liability but declined compensation for cost of hearing aid – where applicant applied to the first respondent for review of the decision of second respondent – whether the first respondent had authority to review the decision of the second respondent

WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – PARTICULAR INJURIES, DISEASES AND DISABILITIES – INDUSTRIAL DISEASES – LOSS OF HEARING – PARTICULAR CASES – where the Workers’ Compensation and Rehabilitation Act 2003 (Qld) specifically provides for entitlements for industrial deafness – where liability is limited to ‘medical treatment by a registered person’ – whether the broad definition of ‘medical treatment’ should be applied

Judicial Review Act 1991 (Qld) s 48
Workers’ Compensation and Rehabilitation Act 2003 (Qld)

Carey v President of the Industrial Court Queensland [2004] 2 Qd R 359, cited
Pitman v State of Queensland [1999] 2 Qd R 71, cited

COUNSEL:

D C Rangiah for the applicant
D O J North SC, with S A McLeod, for the first respondent

M T O’Sullivan for the second respondent

SOLICITORS:

Maurice Blackburn Cashman Solicitors for the applicant
Workers’ Compensation Regulatory Authority for the first respondent

Home Wilkinson Lowry for the second respondent

1. MACKENZIE J:  This is an application to review a decision of the first respondent to the effect that it did not have authority to review a decision made by the second respondent to reject the applicant’s application for the cost of supply and fitting hearing aids following a determination that he suffers from industrial deafness.  The essential history of the matter is that the applicant had been employed by the second respondent for a number of years at Cairns Airport.  On 21 March 2006 he applied to the second respondent for Workers Compensation for industrial deafness.  That application was rejected on 9 May 2006. 

1. On 1 September 2006, the first respondent set aside the second respondent’s decision and returned the matter to the second respondent with a direction to refer it to the Medical Assessment Tribunal.  The Medical Assessment Tribunal decided that there was an injury within the meaning of the Act, bilateral sensorineural hearing loss, which produced partial permanent incapacity for work.  The degree of impairment was assessed by it at 10.3 per cent.  In light of this, the second respondent accepted the applicant’s claim on 6 December 2006.  Subsequently, the applicant asked the second respondent to pay the reasonable cost of supply and fitting of hearing aids.  The second respondent denied liability for the cost of the devices. 

1. On 13 May 2007 the applicant’s solicitors forwarded an application for review of the second respondent’s decision to the first respondent.  The second respondent asserted that the first respondent did not have power to review the second respondent’s decision and on 30 March 2007 the first respondent refused to review the second respondent’s decision on the basis that it did not have authority to do so.  The essence of that decision is found in the following passages of the first respondent’s letter:

“The Insurer has submitted that section 540 of the Act does not contain any provision for Q-COMP to review decisions made pursuant to sections 125 or 211 of the Act.

You have contended that the Explanatory Notes to the Workers’ Compensation and Rehabilitation and Other Acts Amendment Bill 2004 clarify that Q-COMP ‘can review a decision made by an insurer to allow or reject an application for compensation for medical treatment, hospitalisation and expenses under Chapter 4’ and that this therefore authorises us to review the Insurer’s decision of 6 December 2006.

In accordance with section 540 of the Act, the Q-COMP Review Unit only has the authority to review decisions made pursuant to specific provisions of Chapter 4 of the Act, and as decisions made pursuant to section 211 have not been included in this Q-COMP has no authority to review the Insurer’s advice dated 6 December 2006.

I must therefore conclude that the advice of the Insurer dated 6 December 2006 is an issue that the Q-COMP Review Unit does not have the authority to review pursuant to section 540 of the Workers’ Compensation and Rehabilitation Act 2003.”

1. It was submitted that the second respondent had failed to properly construe s 540(1)(b)(ii) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) which, if properly applied, would give the first respondent such authority. Section 540(1) states that Pt 2 of Ch 13 of the Act applies to, inter alia, a decision by WorkCover to allow or reject an application for compensation (s 540(1)(a)(viii)) or a decision by a self-insurer to allow or reject an application for compensation         (s 540(1)(b)(ii)).  The applicant relies on a general provision, s 211, which appears in Ch 4 and is relevantly as follows:

“211      Extent of liability for medical treatment

(1)The insurer must pay the following costs for medical treatment for an injury, whether provided at 1 time or at different times –

(a)for medical treatment by a registered person – the cost that the insurer accepts as reasonable, having regard to the relevant table of costs;

(b)for nursing, medicines, medical or surgical supplies, curative apparatus, crutches or other assistive devices given to the worker otherwise than as an in-patient at a hospital – the cost that the insurer accepts as reasonable.

… .”

‘Medical treatment’ is defined in sch 6 in the following terms:

“medical treatment means —

(a)treatment by a doctor, dentist, physiotherapist, occupational therapist, psychologist, chiropractor, osteopath, podiatrist or speech pathologist; or

(b)     assessment for industrial deafness by an audiologist; or

(c)     the provision of diagnostic procedures or skiagrams; or

(d)the provision of nursing, medicines, medical or surgical supplies, curative apparatus, crutches or other assistive devices. ”

1. In Ch 3 Pt 3 Div 3 there is specific provision made with regard to workers with industrial deafness.  Section 125(1) provides that a worker is entitled to compensation for industrial deafness under Pt 10 and ss 211(1)(a) and 219(1) and not under any other provision.  Pt 10 is concerned with entitlement to compensation for permanent impairment, which is uncontroversial in this instance and s 219 is concerned with liability for travelling expenses, which is not in issue in these proceedings. 

1. There are two further definitions in Sch 6 that should be noted.  Firstly, “registered person” means a registered person of a description in the definition of “medical treatment”.  A “registered” person for the purposes of para (a) of the definition of “registered person” means registered under the law of the place where the medical treatment is provided as a person lawfully entitled to provide the medical treatment in that place.  In relation to an audiologist, it means certified by the Audiological Society of Australia. 

1. The issue is therefore a narrow one of construction of the relevant provisions.  The first respondent appeared only to assist the court with respect to the construction question.  The second respondent resists the application.  Both respondents submitted that there is no right to recover the cost of a hearing aid from the second respondent.  For that reason alone, the application for judicial review should be dismissed as futile (Pitman v State of Queensland [1999] 2 Qd R 71, 74-75; Carey v President of the Industrial Court Queensland [2004] 2 Qd R 359, 371-372; Judicial Review Act 1991 (Qld) s 48). It is then submitted that the case falls outside the categories of cases which may be reviewed by the first respondent under s 540. It was submitted that the application should be dismissed for that reason.

1. The applicant submitted that the proper construction of the Act was essentially that the application of the definition of “medical treatment” to s 211(1) resulted in an obligation on the part of the second respondent to pay for hearing aids. 

1. As the respondents pointed out, this analysis does not take into account s 125(1).  The respondents submitted that if that is given its proper meaning, the only entitlement, relevantly, is that under s 211(1)(a).  It was submitted that that had the consequence that the liability of the insurer is only to pay the cost of “medical treatment by a registered person” in a case of industrial deafness.  Exclusion of the general right under s 211(1)(b) to payment of the cost of curative apparatus or other assistive devices necessarily means that the range of services and things referred to in s 211(1)(b) is excluded in such cases.

1. Section 211(1) is concerned with the insurer’s liability to pay costs for “medical treatment”.  Section 211(1)(a) provides that the insurer’s liability for medical treatment by a registered person is the cost that the insurer accepts as reasonable, having regard to the relevant table of costs.  The table of costs is decided, for the time being, by the Workers’ Compensation Regulatory Authority (Sch 6).  The liability under s 211(1)(b) is the cost that the insurer accepts as reasonable for nursing, medicines, medical or surgical supplies, curative apparatus, crutches or other assistive devices given to the worker otherwise than as an inpatient at a hospital. 

1. That dichotomy suggests that “medical treatment” in s 211(1)(a) has a more restricted meaning than the defined meaning.  The obligation is expressed in the words preceding paragraphs (a) and (b) as one to pay costs for medical treatment for an injury.  The defined meaning, with its four paragraphs, establishes the categories of treatments, assessments, diagnostic procedures and other services within the scope of the definition.  It then differentiates between the methods of determining the quantum of the obligation to pay, by reference to medical treatment by a registered person on the one hand and the services referred to in paragraph (d) of the definition provided otherwise than as an inpatient at a hospital, on the other. 

1. Without attempting to define precisely what is covered by s 211(1)(a), as a matter of construction, at least curative apparatus or other assistive devices given to a worker other than as an inpatient at a hospital are not included in it. Section 125(1) relevantly defines the right to compensation for industrial deafness by reference to s 211(1)(a), and by the words “and not by any other provision” excludes s 211 (1)(b). That imposes an obligation to pay the cost of medical treatment by a registered person. The obligation to pay does not extend to curative apparatus or assistive devices because what is comprised in s 211(1)(b) is excluded from the obligation. It follows that, even if the first respondent were wrong in its contention that it did not have jurisdiction under s 540 to review the second respondent’s decision, it would be futile to send the matter back to the first respondent because it would inevitably be obliged to find that there was no entitlement on the part of the applicant to be paid the cost of the hearing aids.

1. The second issue is whether the respondent had jurisdiction under s 540 and s 541 of the Act to review the refusal by the second respondent to pay the cost of hearing aids. The applicant placed particular emphasis on s 540(1)(b)(ii) in this regard. The relevant parts of s 540 for the purposes of the argument are the following:

“(1)       This part applies to the following

…
             (b)       a decision by a self-insurer –

…

(ii) to allow or reject an application for compensation; or

(vi) to allow or refuse an entitlement under section 212, 216 or 219;

… .”

1. The definition of “compensation” in s 9 is relevantly as follows:

“Compensation is compensation under this Act, that is, amounts for a worker’s injury payable under chapters 3 and 4 by an insurer to a worker, dependant of a deceased worker or anyone else, and includes compensation paid or payable under a former Act. ”

The relevant sections to this matter appear in chapter 3.

1. Section 108 provides that compensation is payable under the Act for an injury sustained by a worker.  Section 109 provides that if an employer is a self-insurer, as is the case here, the employer must pay the compensation.  Sections 131 and 132 govern the making of an application for compensation.  In particular, under s 132(2) the application must be lodged with the insurer.  Section 134(1) provides that a claimant’s application for compensation must be allowed or rejected in the first instance by the insurer. 

1. The proper scope of s 540(1)(b)(ii) is, in my view, limited to the acceptance or otherwise of liability for the injury relied on in the application, that is to say to the decision contemplated by s 134(1). The first respondent’s jurisdiction to review a decision of an insurer on an application under s 541, when it is not an application to review allowance or rejection of the initial application, must be found elsewhere within a category set out in s 540.

1. The distinction drawn between a decision to allow or reject an application for compensation (s 540(1)(b)(ii)) and a decision to allow or refuse entitlements (s 540(1)(b)(vi)) supports this conclusion. The concept of “extent of liability” appears in the heading of s 212 (prosthetic expenses), s 216 (hospitalisation at private hospital) and s 219 (travelling expenses), which are specifically referred to in s 540, as it does in s 211 and other sections in proximity to those sections. Those latter sections are not specifically referred to in s 540. This suggests that there has been a clear legislative policy decision taken to allow the first respondent to review some decisions of insurers but not others. Since s 211 is not specifically included, a decision as to the extent of liability under it cannot be reviewed by the first respondent under s 540 and s 541. The first respondent was therefore correct to so decide.

1. The orders are therefore as follows:

1.   The application is refused;

2.   It is ordered that the applicant pay the second respondent’s costs of and incidental to the application; and

3.   There be no order as to costs in relation to the first respondent.