Gregoraci v Estia Investments Pty Ltd
[2021] NSWPIC 521
•13 December 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Gregoraci v Estia Investments Pty Ltd [2021] NSWPIC 521 |
| APPLICANT: | Nancy Gregoraci |
| RESPONDENT: | Estia Investments Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 13 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for future shoulder surgery; injury occurred after retirement age, and the proposed surgery falls outside the expiry of the relevant compensation period; operation of section 59A of the Workers Compensation Act 1987 (1987 Act); whether the applicant falls within an exception to the operation of the section; Held - section 59A of the 1987 Act operates to preclude the applicant from making a claim for the surgery; absent an application concerning whether the applicant has reached maximum medical improvement and a finding to that effect, without a concession from the respondent that this is case, section 59A of the 1987 Act operates as a complete defence to the present proceedings; award for the respondent. |
| DETERMINATIONS MADE: | 1. The applicant is precluded from claiming the cost of the proposed surgery by reason of the operation of section 59A of the Workers Compensation Act 1987. 2. Award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
The applicant suffered an accepted right shoulder injury in the course of her employment with the respondent, with a deemed date of injury of 6 February 2018.
The applicant’s injury beset her after she had reached retirement age. Accordingly, weekly benefits ceased to be payable 12 months after the date of her first incapacity (section 52(2)(b) of the Workers Compensation Act 1987 (the 1987 Act)).
The applicant brings these proceedings seeking payment by the respondent of proposed right shoulder arthroscopic repair surgery. The respondent disputes liability to pay on the grounds the surgery is not reasonably necessary, and also alleges the provisions of section 59A of the 1987 Act bar the payment of medical expenses to the applicant.
This decision is concerned only with the section 59A defense. The parties agree if the section applies to bar the payment of medical expenses, it will operate as a complete defense to these proceedings.
ISSUES FOR DETERMINATION
The parties agree that the only issue the subject of this decision is the operation or otherwise of section 59A of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. The parties were informed of my intention to determine the dispute without holding a conciliation conference or arbitration hearing.
The parties have agreed to the determination of the dispute surrounding section 59A without a conference or formal hearing. At the telephone conference on 20 October 2021, the parties were directed to lodge written submissions on the operation or otherwise of section 59A.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents, and
(c) respondent’s Application to Admit Late Documents (AALD) dated 11 November 2021.
Oral Evidence
There was no oral evidence called in the matter.
FINDINGS AND REASONS
The operation of section 59A
Section 59A provides:
“(1) Compensation is not payable to an injured worker under this Division in respect of
any treatment, service or assistance given or provided after the expiry of the
compensation period in respect of the injured worker.(2) The compensation period in respect of an injured worker is—
(a)if the injury has resulted in a degree of permanent impairment assessed as
provided by section 65 to be 10% or less, or the degree of permanent impairment has not been assessed as provided by that section, the period of 2 years commencing on—
(i)the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
(ii)the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker), or
(b) if the injury has resulted in a degree of permanent impairment assessed as
provided by section 65 to be more than 10% but not more than 20%, the period of 5 years commencing on—
(i)the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
(ii)the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker).”
It is common ground the compensation period for the applicant ended on 6 February 2019. It is also common ground the applicant’s degree of permanent impairment has not been assessed, and accordingly she gains no assistance from section 59A(2)(b).
Accordingly, to obviate the operation of section 59A, the applicant will need to establish she is a “worker with high needs” as that term is defined in section 32A(b) of the 1987 Act which provides:
“(b) an assessment of the degree of permanent impairment is pending and has not
been made because a medical assessor has declined to make the assessment on
the basis that maximum medical improvement has not been reached and the degreeof permanent impairment is not fully ascertainable,…”
The applicant submits that the medical evidence in this matter is consistent in stating the applicant has not reached maximum medical improvement. She submits this is the case on the basis that Dr Smith, IME for the respondent, opined in a report dated 4 November 2021 attached to the respondent’s AALD “…making the assumption there are no surgical interventions” the applicant has reached maximum medical improvement.
The applicant submits that passage is consistent with maximum medical improvement not being reached, as the evidence discloses the applicant wishes to have the proposed surgery.
I accept the applicant’s submission; however, I do not believe it assists her in the context of these proceedings for the following reasons.
Firstly, the respondent contends the applicant has reached maximum medical improvement. As a matter of practicality given the approach to assessing that question, this may not be the case in circumstances where surgery is contemplated. However, absent a concession to this effect, that is a matter for a Medical Assessor, not a Member of the Commission.
Secondly, the applicant has not brought an application seeking either payment of permanent impairment compensation or seeking a determination as to whether her degree of whole person impairment is ascertainable. In her submissions, the applicant seeks an order pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) that the matter be referred for medical assessment and submits that if such a course of action is not taken, there will be expense and delay as a Medical Assessor will “accede to the obvious” if such an application is made.
Such a course of action is not, in my view, available in circumstances where the respondent asserts maximum medical improvement has been reached. Given that is the case, in my view the applicant would need to lodge a separate application seeking assessment of whether her permanent impairment is ascertainable. Whilst I understand the applicant’s frustration at the matter not being referred to a Medical Assessor at this time, in my view the wording of the relevant section is clear. Absent a concession from the respondent, it is a matter or a Medical Assessor to determine whether maximum medical improvement has been reached, and for an application seeking such a determination to be made.
In the present proceedings, absent a finding to the effect the applicant has not reached maximum medical improvement, section 59A operates as a complete defence to the current Application.
SUMMARY
For these reasons, there will be an award for the respondent.
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