Kavalieratos v Multiwood Craft Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kavalieratos v Multiwood Craft Pty Ltd [2024] NSWPIC 452
APPLICANT:	Antoni Kavalieratos
RESPONDENT:	Multiwood Craft Pty Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	20 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60 expenses for orthopaedic bed; application on the basis that bed was an artificial aid; injury in 1995 and worker was not an existing recipient of weekly compensation; Held – claim precluded by transitional provisions; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Anthoni Kavalieratos suffered a back injury on 17 July 1995 in the course of his employment with Multiwood Craft Pty Ltd (Multiwood). He was last paid weekly compensation on
2 August 2011.
On 23 February 2024 Mr Kavalieratos asked Multiwood’s insurer to fund the cost of an orthopaedic bed, recommended by his general practitioner, Dr Khan in a certificate dated 19 December 2023.
The parties agree that the issues for determination are:
a) whether s 59A of the Workers Compensation Act 1987 (the 1987 Act) precludes payment for medical and related expenses, and
b) whether the provision of the bed is medical or related treatment as defined in s 59 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMISSION)

The claim was listed for preliminary conference on 11 July 2024 when Mr Lemoto appeared for Mr Kavalieratos and Ms Middleton appeared for Multiwood.
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 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.
Because the scope of the dispute is narrow, I directed the parties to file written submissions. They filed submissions in accordance with the orders made.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply.
Mr Kavalieratos suffered an injury on 17 July 1995 when carrying heavy wooden panels up a narrow staircase. He underwent conservative treatment. In 1998, he was awarded compensation for 15% permanent impairment of the back. He said in his statement dated 12 June 2024 that Multiwood’s insurer paid for some physiotherapy in 2011 and the case was “closed” in the same year. The pain deteriorated in 2017 and he began to develop shoulder pain from pushing himself up. He has undergone some physiotherapy.
On 19 December 2023, Mr Kavalieratos’ general practitioner, Dr Khan recommended that he obtain an orthopaedic bed. Mr Kavalieratos made some inquiries and found a suitable bed. He made a claim on the insurer which was declined.
A claim was made on 23 February 2024, supported by a quote and a report from Dr Khan dated 19 December 2023. The report read:
“This patient suffers from chronic backache since 1997.1 He is getting increasing pain and difficulties in getting out of bed. he is recomended for an orthopaedic bed and h is recomended for a release of funds from his super to buy a bed on emphathetic grounds” [sic].
Multiwood’s insurer did not issue a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It had previously issued a notice on 7 March 2019 stating that Mr Kavalieratos was no longer eligible for medical expenses for his injury. It said:
“In 2012, legislative reforms were introduced to the NSW Workers Compensation Scheme which reduced the medical expenses timeframe for workers, limiting their medical entitlement depending on their whole person impairment (WPI) level.
Section 59A( 1) of the Workers Compensation Act 1987 (the Act) states that no compensation is payable in respect of any treatment, service or assistance given after the expiry of the compensation in respect of the injured worker.
Section 59A(2) of the Act explains the compensation period, which is 2 years for a worker assessed with 0-10% WPI, 5 years for a worker assessed with 11-20% WPI and lifetime medical entitlement for someone greater than 21% WPI.
You have not been assessed as having whole person impairment therefore, you are eligible for 2 years medical entitlement.
Your medical entitlement ceases from either the date you made your claim or the last date you received payment of weekly compensation benefits, whichever is the latest date.
You last received payment of weekly compensation benefits on 02/08/2011. In the circumstances where the last payment of weekly compensation benefits was prior to 16/09/2012, the medical entitlement cease date is 16/09/2014 therefore, your medical entitlement cease date is 16/09/2014.”
Mr Kavalieratos lodged a recurrence of injury form on 2 February 2018 but it is unclear from the evidence what compensation he sought then. His solicitors obtained a report from Dr Bodel dated 22 May 2019. Dr Bodel diagnosed a disc injury at L4/5 which occurred in 1995 and deteriorated over time. He noted that Mr Kavalieratos was working full time, running his own tow truck business and considered that he should be able to do that indefinitely. He assessed 20% permanent impairment of the back, 10% loss of use of each leg at or above the knee and 15% loss of use of each arm at or above the elbow. He assessed 23% whole person impairment (WPI). While Dr Bodel was asked about future treatment and made some recommendations, he did not consider the provision of a bed.
There is nothing in the file to show what occurred as a result of that report and there is no evidence which postdates 2019 apart from Dr Khan’s brief certificate.
A list of payments in the Reply shows that a total of $15,000 was paid as permanent impairment compensation under s 66 of the 1987 Act and $10,000 for pain and suffering under the former s 67. A payment of $9,000 was made in 2000 and the remainder in 2011. The last payments for weekly compensation and medical expenses were made in 2011.
A bundle of documents provided by Multiwood’s insurer to Mr Kavalieratos’ solicitors includes a report from Dr Giblin dated 5 October 2010. Dr Giblin considered that Mr Kavalieratos’ permanent impairment had deteriorated and that he now suffered 25% permanent impairment of the back. He did not assess any of Mr Kavalieratos’ extremities.

SUBMISSIONS

The parties’ submissions form part of the file and I have summarised them below.
In submissions prepared by his solicitor, Mr Kavalieratos said that s 59A(6) provides a number of exceptions to the disentitling provisions in s 59A being:
“The provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries)”
Mr Kavalieratos said that the bed was an artificial aid and referred to the decisions of the Court of Appeal in Pacific National Pty Ltd v Baldacchino[1] (Baldacchino) and Thomas v Ferguson Transformers Pty Ltd[2] (Thomas). Referring to Baldacchino, he said an artificial aid must work to ameliorate the effect of a person’s disability, and may comprise a single object or composite of objects working together. Mr Kavalieratos submitted, that the word ameliorate is means to make better or more tolerable. Referring to Thomas, he said that a curative apparatus was “linked to the meaning for the artificially” and the court held that curative was wide enough to include maintaining or ameliorating a person’s condition, even if it did not cure it.
[1] [2018] NSWCA 281 at [29] and [34].
[2] [1979] 1 NSWLR 216, 220-221.
Mr Kavalieratos said that the legislation considered in Thomas was virtually identical to the definition in the 1987 Act. He said that the clear purpose of the 2015 amendment of the 1987 Act was to widen potential benefits beyond the expiry of the time periods dictated by s 59A.

Multiwood

In submissions signed by Ms Middleton, Multiwood set out s 59A in its “original” form,
cls 24 and 27 of the Sch 8 of the Workers Compensation Regulation and s 59A as amended in 2015, together with relevant transitional provisions.
Multiwood said that the effect of those provisions is that the original s 59A applied to Mr Kavalieratos and that he did not “get the benefit” of the amendment made by the 2014 regulation which inserted s 59A(6) because his permanent impairment had not been assessed in accordance with Part 7 of Chapter 7 of the 1998 Act.
In the alternative, Multiwood submitted that the principles of statutory construction prevented a finding that the provision of a bed fell within s 59A(6), referring to the Presidential decision in Baldacchino[3]. Multiwood submitted that the words “other artificial aids” should be read in the context of the phrases in which they appear, or alternatively ejusdem generis, being limited to things of the same kind or class. Multiwood submitted that both of those methods of interpretation led to the same result – that an orthopaedic bed was not an artificial aid, referring to the decision of O’Meally CCJ in Sorrenson v Opal Promotions Pty Ltd[4] where his Honour held that an exercise bike and chairs were not artificial aids.
[3] [2018] NSWWCCPD 12 at [76]-[80]
[4] (1989) 5 NSWCCR 254.
Multiwood submitted that Dr Khan’s report was inadequate to explain that the bed fulfilled the “essential quality” of an artificial aid, described in Thomas – that it is tailored to the needs of a person which flow from the injury.

FINDINGS AND REASONS

As Macfarlane JA said about the 1987 Act in Baldacchino:
“This Act was amended in 2012 to include s 59A which limited the period of time for which compensation was recoverable for work injuries. Section 59A was amended in 2015 to introduce qualifications to that limitation.”
In its original form when introduced in the Workers Compensation Legislation Amendment Act 2012 s 59A read
“59A Limit on payment of compensation
(1)     Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided more than 12 months after a claim for compensation in respect of the injury was first made, unless weekly payments of compensation are or have been paid or payable to the worker.
(2)     If weekly payments of compensation are or have been paid or payable to the worker, compensation is not payable under this Division in respect of any treatment, service or assistance given or provided more than 12 months after the worker ceased to be entitled to weekly payments of compensation.
(3)     If a worker becomes entitled to weekly payments of compensation after ceasing to be entitled to compensation under this Division, the worker is once again entitled to compensation under this Division but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.
(4)     This section does not apply to a seriously injured worker (as defined in Division 2).”
The Workers Compensation Regulation was amended by the Workers Compensation Amendment (Existing Claims) Regulation 2014. Existing clam was defined as a claim for compensation in respect of an injury made before 1 October 2012. Clause 28 provided:
“28   Medical and related expenses
(1)     An existing claim is exempt from the operation of section 59A (Limit on payment of compensation) of the 1987 Act in respect of the following compensation until the injured worker reaches retiring age:
(a)compensation payable to an injured worker under Division 3 of Part 3 of the 1987 Act if the worker’s injury has resulted in permanent impairment of greater than 20%,
(b)compensation payable in respect of the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries),
(c)compensation payable in respect of the modification of a worker’s home or vehicle.”
(2)     A worker’s injury is considered to have resulted in permanent impairment of greater than 20% only if the injury has resulted in permanent impairment and:
(a)the degree of permanent impairment has been assessed for the purposes of Division 4 of Part 3 of the 1987 Act to be greater than 20%, or
(b)an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
Note. Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c)the insurer is satisfied that the degree of permanent impairment is likely to be greater than 20%.”
Assessment for the purpose of Division 4 of Part 3 of the 1987 Act is assessment for a claim for permanent impairment compensation. Section 65 of the 1987 Act provides that the assessment of permanent impairment is made under Part 7 (Medical Assessment) of Chapter 7 of the 1998 Act. If there is a medical dispute, which includes the degree of permanent impairment, the assessment is made by a medical assessor.
While Mr Kavalieratos was assessed by Dr Bodel as having more than 20% WPI, there is no evidence that Multiwood has ever agreed that he does suffer that degree of permanent impairment.
The legislation was amended in 2015 so that s 59A provides:
“59A Limit on payment of compensation
(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).
(3)     If weekly payments of compensation become payable to a worker after compensation under this Division ceases to be payable to the worker, compensation under this Division is once again payable to the worker but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.
(4)     For the avoidance of doubt, weekly payments of compensation are payable to a worker for the purposes of this section only while the worker satisfies the requirement of incapacity for work and all other requirements of Division 2 that the worker must satisfy in order to be entitled to weekly payments of compensation.
(5)     This section does not apply to a worker with high needs (as defined in Division 2).
(6)     This section does not apply to compensation in respect of any of the following kinds of medical or related treatment:
(a)the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries),
(b)the modification of a worker’s home or vehicle,
(c)secondary surgery.
(7)     Surgery is secondary surgery if:
…
(8)     This section does not affect the requirements of section 60 (including, for example, the requirement for the prior approval of the insurer for secondary surgery).”
The amendment to the section introduced the sub-section on which Mr Kavalieratos relies. However, the transitional provisions do not assist him.
The same amending Act included savings and transitional provisions in part 19I
“1 Definitions
In this Part:
2012 existing claim means a claim for compensation made before 1 October 2012.
2015 amending Act means the Workers Compensation Amendment Act 2015.
existing recipient of weekly payments means an injured worker who was in receipt of weekly payments of compensation in respect of the injury immediately before 17 September 2012.
2 Application of amendments generally
(1)    Except as provided by this Part or the regulations, an amendment made by the 2015 amending Act extends to:
(a)an injury received before the commencement of the amendment, and
(b)a claim for compensation made before the commencement of the amendment, and
(c)proceedings pending in the Commission or a court immediately before the commencement of the amendment.
(2)    …”
…
11. Medical, hospital and rehabilitation expenses
(1)     The amendments made by Schedule 3 [1]–[3] to the 2015 amending Act to section 59A of the 1987 Act are for the removal of doubt and, accordingly, that section is taken to have been so amended from its own commencement.
(2)     However, those amendments do not affect any decision of the Commission or a court, or any compromise or settlement, made before the commencement of the amendments.
(3)     Section 59A of the 1987 Act (as inserted by an amendment made by the 2015 amending Act) extends to the compensation payable to an injured worker who:
(a)first made a claim for weekly payments of compensation in respect of the injury before the commencement of the amendment, but not before 1 October 2012, or
(b)was an existing recipient of weekly payments in respect of the injury.”
Mr Kavalieratos made a claim for weekly compensation before 1 October 2012 and he was not an existing recipient of weekly payments because he was not in receipt of weekly compensation immediately before 17 September 2012, having last been paid weekly compensation in 2011.
Mr Kavalieratos’ submissions did not engage with the legislative history, even though the issue was partially raised by the s 78 notice in 2019. I accept Multiwood’s argument that the amendments to the legislation preclude the payment of further medical and related expenses to Mr Kavalieratos.
It is not necessary to consider whether the bed is an artificial aid but because I consider that the claim fails for two further reasons, it is appropriate that I set them out.

Artificial aids

There have been many cases in the Commission and its predecessors where an award of compensation under s 60 of the 1987 Act has been made to cover the cost of a bed which was recommended by a medical practitioner. In other cases, the order has been made on the basis that it falls within paragraph (e) of the definition of medical or related treatment in s 59 of the 1987 Act because it is curative apparatus. The definition is:
“(e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided to the worker otherwise than as hospital treatment.”
An example is Honarvar v Professional Painting AU Pty Ltd.[5]
[5] [2022] NSWPICPD 12.
Artificial aids are medical and related treatment because of paragraph (d) of the definition of medical and related treatment:
“(d) the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles.”

Thomas concerned the cost of the modification of a motor vehicle so that it could be driven by an injured worker and the provision of driving lessons. In Baldacchino, Macfarlane JA set out passages from that decision:[6]
“Hutley JA (with whom Hope JA agreed) said at 220-221:
‘An artificial aid, in my opinion, is anything which has been specially constructed to enable the effects of the disability(the result of injury) to be overcome. The other articles in the subclause, crutches, artificial members, eyes or teeth, are illustrations of this. Because of [the applicant’s] injury, she has lost all capacity for natural progression. The modifications to the car have given her some capacity to transport herself. It was suggested that, on this basis, the car was an artificial aid, and every person whose capacity to walk was diminished could have a car supplied at the expense of the insurer. It is not necessary to decide whether this conclusion follows. The essential quality of an artificial aid is that it is an aid specially tailored to the needs of a person, which flowed from the injury. The artificial aid is specific to an injured person. These modifications have this quality. As an artificial aid is useless unless the person for whom it is provided can use it, the provision of an artificial aid includes the provision of instruction in its use” (emphasis added).
Mahoney JA referred to a description in the evidence of the modifications as the “installation of hand controls”. His Honour accepted that instruction on how to use the modifications could constitute part of the costs of “the provision of such an aid”, but considered that the evidence in the case before him was open to the inference that the lessons were to teach the applicant how to drive the motor vehicle, rather than specifically to use the modifications to it (at 222).” (emphasis in original).
[6] At [13]-[14].
A bed which is commercially available to any member of the public who chooses to buy it is not an aid specially tailored to the needs of an injured person.
The references to curative apparatus in Mr Kavalieratos’ submissions does not assist. The items set out in s 59A(6) are a sub-set of those in s 59.
The bed recommended for Mr Kavalieratos is not an artificial aid within the meaning of
s 59A (6).

Reasonably necessary medical treatment

Section 59A(8) says that the section does not affect the requirements of s 60 of the 1987 Act. Mr Kavalieratos’ evidence did not address the requirements of s 60. For the cost of the treatment to be payable, it must be reasonably necessary medical treatment as a result of an injury.
The evidence on which Mr Kavalieratos relies is scant and, even if the claim had not been prevented by the transitional provisions, it is unlikely to have succeeded. Mr Kavalieratos said in his statement that Dr Khan recommended an orthopaedic bed and that he had made his own enquiries and found a suitable bed. He provided a quotation which does not provide description of the bed other than that it is a Caelum adult single base and a Cosmos adult single mattress.
Dr Khan’s brief report does not appear to have been written for these proceedings. It does not mention the injury, saying that Mr Kavalieratos has had chronic backache since 1997. Dr Khan said that his pain is increasing but did not say that it was a deterioration of the 1995 injury. He did not explain the features of an orthopaedic bed and why they were reasonably necessary as a result of the injury. Dr Khan wrote the report to support release of funds from Mr Kavalieratos’ superannuation, not for the purpose of workers compensation claim. He recommended release of those funds on empathetic grounds, which I interpret as a request that the funds be released because the reader of the report would feel empathy for Mr Kavalieratos and understand how he feels.
The report does not fulfil the requirements for expert evidence in the Commission. Even if the bed was an artificial aid and its provision was not precluded by s 59A, Mr Kavalieratos must prove that the treatment is reasonably necessary in accordance with s 60 of the 1987 Act in the manner set out in cases such as Diab v NRMA Insurance Ltd[7]. Dr Khan’s report does explain how Mr Kavalieratos’ injury leads to the requirement for the bed, nor how it will alleviate the symptoms of the injury.
[7] [2014] SNWWCCPD 72.
For those reasons, I make an award in favour of Multiwood.

[2024] NSWPIC 452

20 August 2024