Mitchell v SR & JA Carey Pty Ltd - [2021] NSWPIC 56

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mitchell v SR & JA Carey Pty Ltd [2021] NSWPIC 56
APPLICANT:	Howard Mitchell
RESPONDENT:	SR & JA Carey Pty Ltd
MEMBER:	Mr Michael Perry
DATE OF DECISION:	31 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for reimbursement of medical expenses under section 60 of the 1987 Act for purchase of hearing aids in 2009 based on industrial deafness injury of 30 June 2000; claim made in 2019; history of substantial non -1987 Act employment and self-employment before and after 1987 act employment; Murphy v Allity and Kooragang v Bates discussed; Held- the 2009 hearing aids were reasonably necessary as a result of the 1987 Act noise exposure; respondent ordered to pay the applicant $5000 in reimbursement for his purchase of those hearing aids.
DETERMINATIONS MADE:	1. The naming of the respondents is to be amended, wherever it or they appear, to be SR & JA Carey Pty Ltd. 2. The applicant sustained an injury, being a loss of hearing which is of such a nature as to be caused by a gradual process. 3. For the purposes of the Workers Compensation Act 1987 (the 1987 Act) the injury referred to in paragraph 2 above is deemed to have happened on 30 June 2000 when he was employed by the respondent. 4. As a result of the injury referred to in paragraphs 2-3 above, it was and is reasonably necessary that medical or related treatment under s 60 of the 1987 Act, namely, the hearing aids purchased by the applicant on or about 6 May 2009, in the sum of $5,000, be given to the applicant. 5. The respondent is to pay the applicant $5,000 in reimbursement for the expense of purchase of the hearing aids referred to in paragraph 4 above.

STATEMENT OF REASONS

BACKGROUND

By letter of 5 July 2019 (the claim letter), the solicitor for Howard Mitchell (the applicant) sent a letter to icare Workers Insurance (the insurer) under the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 act) claiming three types of compensation under the Workers Compensation Act 1987 (the 1987 Act).
The claim letter alleged the applicant suffered an industrial deafness injury, deemed to have occurred on 30 June 2000, in the course of his employment with SR & JA Carey Pty Ltd (the respondent). The applicant firstly claimed compensation under s 66 of the 1987 Act in respect of 10.2% binaural hearing loss (BHL). Secondly, he claimed $5,433.80 compensation under s 60 of the 1987 Act for hearing aids as per a quote from “ihear”, dated 8 November 2018 (the 2018 hearing aids). Thirdly, he again claimed compensation under s 60 of the 1987 Act for “reimbursement of hearing aids in the sum of $5,000” as per a receipt from “Audio Clinic” dated 20 May 2009 (the 2009 hearing aids) attached to the claim letter.
The insurer wrote to the applicant under s 78 of the 1998 Act on 10 September 2019 disputing the third…

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.

Continue reading Mitchell v SR & JA Carey Pty Ltd

Details

AGLC: Mitchell v SR and JA Carey Pty Ltd [2021] NSWPIC 56
Case: [2021] NSWPIC 56
Decision Date: 31 March 2021

CaseChat Overview and Summary

Mitchell initiated proceedings against SR & JA Carey Pty Ltd in the Workers Compensation Court of Queensland. Mitchell sought reimbursement of medical expenses for the purchase of hearing aids in 2009, claiming these were a consequence of his industrial deafness injury that arose on 30 June 2000. The claim was filed in 2019, after Mitchell had been out of employment under the 1987 Act for a substantial period and had engaged in self-employment both before and after his employment under the 1987 Act. The legal issues before the court involved the interpretation and application of section 60 of the 1987 Act concerning reimbursement for reasonably necessary medical expenses directly attributable to a workers' compensation injury. The court considered the relevance of the time lapse between the injury and the purchase of the hearing aids, and the impact of subsequent employment and self-employment on the claim.

The court determined that the hearing aids were reasonably necessary as a result of the noise exposure under the 1987 Act, despite the substantial period that had elapsed since the injury. It referenced the decisions in Murphy v Allity and Kooragang v Bates to support its finding that the applicant's deafness was causally linked to the 1987 Act employment. The court held that the respondent was liable to pay the applicant $5000 in reimbursement for the purchase of the hearing aids. This conclusion was based on the direct and causal link between the industrial injury and the medical necessity of the hearing aids, notwithstanding the intervening period of time and changes in employment status.

Orders