Jewsbury v Workers' Compensation Regulator - [2019] QIRC 83

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Jewsbury v Workers' Compensation Regulator [2019] QIRC 083
PARTIES:	Jewsbury, Dennis (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2018/141
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	3 June 2019
HEARING DATES:	17 May 2019
MEMBER: HEARD AT:	Merrell DP Brisbane
ORDERS:	1. The decision of the Workers' Compensation Regulator is confirmed.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR- Industrial Deafness - Whether worker entitled to be reimbursed for cost of hearing aid after acceptance of lump sum compensation.
LEGISLATION:	Acts Interpretation Act 1954, s 14A Workers' Compensation and Rehabilitation Act 2003, s 9, s 119, s 125, s 144A, s 144B, s 190, s 211, s 220 and s 221
CASES:	Church v Workers' Compensation Regulator [2015] ICQ 031 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28;(1998) 194 CLR 335 Rossmuller AND Q-COMP (C/2009/36) – Decision
APPEARANCES:	Mr A. Wright of WK Lawyers for the appellant. Mr C.J. Clark of Counsel, directly instructed by the respondent.

Reasons for Decision
Introduction

Mr Dennis Jewsbury suffered the injury of industrial deafness in the course of his employment as a seaman. In October 2015, WorkCover Queensland accepted liability for that injury under the Workers' Compensation and Rehabilitation Act 2003 (the Act).
On 20 January 2016, WorkCover, pursuant to s 185 of the Act, issued Mr Jewsbury with a Notice of Assessment for a permanent impairment of 7%. On 21 January 2016, Mr Jewsbury accepted an offer of lump sum compensation made by WorkCover.
On 20 September 2017, solicitors on behalf Mr Jewsbury wrote to WorkCover seeking payment in respect of the costs incurred by him for hearing aids. There is no dispute that Mr Jewsbury required the use of hearing aids. On 11 May 2018, WorkCover rejected that claim pursuant to s 9 and s 190 of the Act.
Mr Jewsbury sought a review of that decision with the Workers' Compensation Regulator. Mr Jewsbury was unsuccessful in that review and now appeals to the Commission.
An appeal of this type, pursuant to ch 13, pt 3 of the Act, is a hearing de novo.[1] The onus is on Mr Jewsbury to prove that he has the entitlement, under the Act, that he claims.[2]
[1] Church v Workers' Compensation Regulator [2015] ICQ 031, [27] (Martin J, President).
[2] Rossmuller AND Q-COMP (C/2009/36) – Decision [2] (Hall P).
The issue is whether Mr Jewsbury, given that he accepted the offer of lump sum compensation made by WorkCover, is subsequently entitled to be reimbursed for the costs of his hearing aids.
The answer to that question depends on the construction of ch 3 of the Act.
In my view, Mr Jewsbury is not entitled to be reimbursed for the costs of his hearing aids.
My reasons follow.

The relevant provisions of the Act

Section 9 of the Act provides:
Meaning of compensation
Compensation is compensation under this Act, that is, amounts for a worker's injury payable…

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.

Keep reading for free

Create a free CaseChat account to read Jewsbury v Workers' Compensation Regulator and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] QIRC 83
Decision Date: 3 June 2019

CaseChat Overview and Summary

The matter before the Court was an appeal by Mr Jewsbury against the Workers' Compensation Regulator's decision to deny his claim for further compensation under the Workers' Compensation Act. Mr Jewsbury, an injured worker, had previously accepted a lump sum compensation payment and was assessed as having a permanent impairment of 7%. He sought additional compensation for the cost of medical treatment, specifically a hearing aid. The Workers' Compensation Regulator denied the claim, holding that once Mr Jewsbury accepted the lump sum compensation, he was precluded from further claims under the Act. The primary legal issue was whether Mr Jewsbury, having accepted the lump sum compensation, was entitled to additional compensation for medical treatment costs.

The Court considered the relevant provisions of the Workers' Compensation Act, particularly sections 144B and 190(2). Section 144B pertains to the provision of medical treatment to injured workers, while section 190(2)(a) addresses the acceptance of lump sum compensation. The Court determined that section 144B can apply harmoniously with section 190(2) since the latter applies to workers who do not have a degree of permanent impairment. Given Mr Jewsbury's acceptance of the lump sum compensation and his assessment of 7% permanent impairment, section 190(2)(a) was triggered, precluding him from further compensation claims. Therefore, Mr Jewsbury was not entitled to the cost of medical treatment such as a hearing aid.

In conclusion, the Court upheld the decision of the Workers' Compensation Regulator. Mr Jewsbury, having accepted the lump sum compensation, was not entitled to further compensation for medical treatment costs under the Act. The Court confirmed the Regulator's decision, and no further compensation would be awarded to Mr Jewsbury for the requested hearing aid or any similar medical treatment costs. The decision was final and binding, with no further appeals permissible.

Orders

Orders of the court

1. The decision of the Workers' Compensation Regulator is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 144B of the Act can exist harmoniously with s 190(2) of the Act. This is because s 144B can apply to injured workers who do not have a degree of permanent impairment. Conclusion Mr Jewsbury was assessed as having a permanent impairment of 7%. An offer of payment of lump sum compensation was made to him under the Act. Mr Jewsbury accepted that offer. In those circumstances, s 190(2)(a) of the Act was enlivened. Following on from his acceptance of the offer, Mr Jewsbury is not entitled to further compensation under the Act. This includes the cost of medical treatment by way of the provision, by a registered person, of a curative apparatus or other assistive device such as a hearing aid. The decision of the Workers' Compensation Regulator is confirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.