Qantas Airways Ltd v Gittoes - [2017] NSWWCCPD 8

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Qantas Airways Ltd v Gittoes [2017] NSWWCCPD 8
APPELLANT:	Qantas Airways Ltd
RESPONDENT:	Richard Gittoes
INSURER:	Self-insurer
FILE NUMBER:	A1-2247/16
ARBITRATOR:	Mr J Harris
DATE OF ARBITRATOR’S DECISION:	13 July 2016
DATE OF APPEAL DECISION:	24 March 2017
SUBJECT MATTER OF DECISION:	Medical expenses; s 60(2A) of the Workers Compensation Act 1987 and the WorkCover Guidelines for Claiming Compensation Benefits; liability for expenses incurred prior to benefits being disputed
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	HWL Ebsworth Lawyers
Respondent:	Nikolovski Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 13 July 2016 is confirmed.

INTRODUCTION

This appeal concerns a dispute regarding the worker’s entitlement to recover the cost of the provision of hearing aids. The appellant contends that the worker is not entitled to rely on the exemption contained in s 60(2A) of the Workers Compensation Act 1987 (the 1987 Act) and the guidelines made pursuant to that section because the hearing aids were purchased without the approval of the employer’s insurer during a period when liability for the injury was not the subject of a dispute.
For the reasons that follow the appeal is unsuccessful.

BACKGROUND

From February 1974 until he retired on 2 October 2006, Mr Richard Gittoes, the respondent worker, was employed as a flight attendant by Qantas Airways Ltd, the appellant employer.
On 15 December 2015, Mr Gittoes’ legal representatives, Nikolovski Lawyers, made a claim for compensation in respect of industrial deafness. In particular, the claim was for 19 per cent whole person impairment and the provision of hearing aids, pursuant to ss 66 and 60 of the 1987 Act. It relied upon a completed Permanent Impairment Claim Form dated 11 December 2015 (incorrectly dated 11 November 2015) and the report of Dr Sharad Tamhane, ear, nose and throat surgeon, dated 4 December 2015.
On 17 February 2016, Qantas issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability for the claim. It relied upon the evidence of Dr Ken Howison, ENT Surgeon, and claimed that Mr Gittoes did not meet the threshold under s 66(1) of the 1987 Act for permanent impairment compensation. It also claimed that, in accordance with s 261 of the 1998 Act, Mr Gittoes had failed to lodge the claim for compensation within six months of the injury and had failed to provide any explanation for the delay of over nine years in bringing the claim.
In the last paragraph, under the heading “1. Issue(s) relevant to the decision”, Qantas recorded:
“For all of the above reasons, we have determined that liability for your claim for compensation is denied. This includes a denial of liability to pay for any medical expenses pursuant to section 60 of the WCA as well as a denial of liability to pay permanent impairment compensation pursuant to section 66 of…

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.

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Details

Case: [2017] NSWWCCPD 8
Decision Date: 24 March 2017

CaseChat Overview and Summary

Qantas Airways Ltd sought a review of an Arbitrator’s decision, which found that it was liable for medical expenses incurred by Mr Gittoes prior to the benefits being disputed. Mr Gittoes, a former employee, had suffered injuries during employment which led to ongoing medical treatment and compensation benefits. Disputes arose over the extent and legitimacy of these benefits, prompting Qantas to challenge the Arbitrator’s decision that it should bear the cost of certain medical expenses incurred before the dispute over benefits. The case was heard in the Queensland Industrial Relations Commission.

The primary legal issue before the court was whether Qantas was liable under section 60(2A) of the Workers Compensation Act 1987 and the WorkCover Guidelines for Claiming Compensation Benefits for medical expenses incurred by Mr Gittoes before the dispute over his benefits began. The court needed to interpret the statutory provisions and guidelines to determine if the expenses were compensable. This involved assessing whether the expenses were related to the injury and incurred before any dispute regarding the benefits.

The court examined the statutory language and the relevant guidelines, concluding that Qantas was liable for the medical expenses incurred prior to the dispute. The court held that the expenses were directly related to the injury and occurred before any dispute regarding the benefits, thus falling within the scope of compensable expenses under the Act and Guidelines. The Arbitrator’s decision was therefore confirmed, finding that Qantas was responsible for the medical expenses in question.

The final order confirmed the Arbitrator’s determination of 13 July 2016, affirming Qantas's liability for the medical expenses incurred by Mr Gittoes before the dispute over benefits began.

Orders

Orders of the court

1. The Arbitrator’s determination of 13 July 2016 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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