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 the WCA.”
On 3 May 2016, Mr Gittoes lodged with the Commission an Application to Resolve a Dispute (the Application). Mr Gittoes claimed lump sum compensation and medical expenses in respect of loss of hearing, deemed to have occurred on 2 October 2006. He claimed compensation for 19 per cent whole person impairment for loss of hearing and compensation for hearing aids for life.
On 6 June 2016, in an Application to Admit Late Documents, Qantas lodged with the Commission a Reply to the Application, disputing liability for the reasons identified in the s 74 notice.
On 27 June 2016, the matter proceeded to conciliation/arbitration proceedings before Arbitrator Harris. Following these proceedings the Arbitrator reserved his decision.
On 13 July 2016, the Arbitrator issued a Certificate of Determination in favour of Mr Gittoes. The Certificate of Determination is in the following terms:
“The Commission determines:
Findings
1. The applicant first became aware of the cause of his hearing loss within the meaning of section 261(6) of the Workplace Injury Management and Workers Compensation Act 1998 in October 2014.
2. The applicant made the claim for compensation more than six months but within three years of October 2014 due to ignorance or other reasonable cause within the meaning of section 261(4)(a) of the Workplace Injury Management and Workers Compensation Act 1998 Act.
Orders
3. The respondent pay the cost of binaural hearing aids purchased on 22 October 2015 pursuant to section 60 of the Workers Compensation Act 1987 and in accordance with the Workers Compensation (Hearing Aids Fees) Order 2015.
4. The claim pursuant to section 66 of the Workers Compensation Act 1987 Act is remitted to the Registrar for referral to an Approved Medical Specialist on the following basis:
Date of Injury:                  2 October 2006 (deemed)
Body Part:Hearing Loss
Method of Assessment:     Whole Person Impairment
5.       The documents to be sent to the Approved Medical Specialist are:
(a)the Application to Resolve a Dispute registered on [4 May 2016] and attached documents;
(b)the Reply (filed by way of an Application to Admit late Documents) and attachments;
(c)Application to Admit late Documents filed by the applicant on 10 June 2016 and 21 June 2016; and
(d)Application to Admit late Documents filed by the respondent on 27 June 2016.
A statement of reasons is attached to this determination setting out the Commission’s reasons for the determination.”
The appellant employer appeals the Arbitrator’s determination.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements in s 352(3) and (4) of the 1998 Act have been met.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

LEGISLATION

The relevant legislation is as follows.
Section 60 of the 1987 Act provides:
“60    Compensation for cost of medical or hospital treatment and rehabilitation etc
(1)     If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
Note. Compensation for domestic assistance is provided for by section 60AA.
(2)     ...
(2A) The worker’s employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if:
(a)the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the Workers Compensation Guidelines from the requirement for prior insurer approval), or
(b)the treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or
(c)the treatment or service is not given or provided in accordance with any conditions imposed by the Workers Compensation Guidelines on the giving or providing of the treatment or service, or
(d)the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or disqualified from practice.
(2B) …
(2C) The Workers Compensation Guidelines may make provision for or with respect to the following:
(a)establishing rules to be applied in determining whether it is reasonably necessary for a treatment or service to be given or provided,
(b)limiting the kinds of treatment and service (and related travel expenses) that an employer is liable to pay the cost of under this section,
(c)limiting the amount for which an employer is liable to pay under this section for any particular treatment or service,
(d)establishing standard treatment plans for the treatment of particular injuries or classes of injury,
(e)specifying the qualifications or experience that a person requires to be appropriately qualified for the purposes of this section to give or provide a treatment or service to an injured worker (including by providing that a person is not appropriately qualified unless approved or accredited by the Authority).
(3)     Payments under this section are to be made as the costs are incurred, but only if properly verified.
(4)     …
(5)     The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the Registrar for assessment under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”
Section 261 of the 1998 Act provides:
“261 Time within which claim for compensation must be made
(1)     Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a)the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b)the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)     If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
…”

GUIDELINES AND LEGISLATIVE HISTORY

The guidelines for claiming compensation benefits are issued pursuant to s 376(1) of the 1998 Act. There have been several guidelines issued over recent years.
The WorkCover Guidelines for Claiming Compensation Benefits dated 27 September 2012 and effective 1 October 2012 (the 2012 Guidelines) replaced guidelines dated 13 March 2012. The 2012 Guidelines provided exemptions from prior approval for medical and hospital treatment. The exemptions “only apply where provisional liability for medical expenses of liability for a claim has been accepted.” It did not provide for exemptions for a Workers Compensation Commission determination.
The WorkCover Guidelines for Claiming Compensation Benefits dated 4 October 2013 and effective 11 October 2013 (the 2013 Guidelines) replaced the 2012 Guidelines. The 2013 Guidelines are operative from 20 September 2013. It is agreed these are the relevant Guidelines for the purpose of this claim.
The 2013 Guidelines relevantly provide:
“3. Exemptions from Prior Approval for Medical and Hospital Treatment
3.1 Definitions
This part is the Guideline for exempt medical or hospital treatment and rehabilitation etc under section 60(2A) that describes treatment or service that is exempt from the requirement for prior insurer approval.
….
3.2 Exemptions
The following treatments and services (and related travel expenses) are exempt from the requirement for prior insurer approval.
3.2.1Workers Compensation Commission determination
3.2.1.1Any treatment or service provided to an injured worker where liability has been initially declined but where the Workers Compensation Commission or subsequently finds for the worker on liability and it is agreed or determined that the treatment or service provided was reasonably necessary.
3.2.1.2Any treatment or service provided to an injured worker where there is a dispute about reasonably necessary treatment or service and the Workers Compensation Commission has found that the treatment tor service provided was reasonably necessary.”
The current Guidelines for claiming workers compensation (the 2016 Guidelines) commenced on 1 August 2016. The 2016 Guidelines provide that a worker can receive the following reasonably necessary treatments and services as a result of the work related injury without pre-approval from the insurer:
“Any treatment or service that has been disputed and the Workers Compensation Commission has made a determination to pay for treatment or services.”

EVIDENCE

In evidence are two statements by Mr Gittoes, dated 2 May 2016 and 10 June 2016. He records that he had “been aware of hearing loss and constant tinnitus for the last twenty (20) years” and that he “didn’t realise how bad the hearing loss was at [sic, as] it had had come on gradually.” However, he states that he had “no knowledge of any entitlements under the Workers Compensation legislation or any of the requirements for lodging a claim” prior to discussing this with Dr Tamhane in “late September or early October 2015” and his lawyer which he consulted for the first time on 20 October 2015.
In evidence are the clinical notes of Mr Gittoes’ general practitioner, Dr Lee, who he had attended on for over 27 years (T69.32). As the Arbitrator recorded, the appellant accepted that there was no record of hearing problems until 10 December 2013 (T69.9). The clinical notes for 10 December 2013 record:
“waxes R n L syring [been having wax drops] syringed better
Ear canals and drums good [having poor hearing before as working in noise enviro as air industry” (formatting as per original)
On 23 December 2013, Dr Lee records that the left and right eardrum “good”, left ear “hearing well” and the right ear “hearing less well”. He referred Mr Gittoes to Dr Tamhane. The Arbitrator accepted Mr Gittoes’ evidence that he did not utilise this referral because the ear infection had cleared up (see [14] of the Arbitrator’s reasons).
The next record of treatment for hearing is on 22 August 2014, where Dr Lee records “right ear good still some wax left ear good sill [sic] midly wax”.
On 22 October 2014, Mr Gittoes again attends on Dr Lee who records: “poor hearing ability for dignostice [sic] test a dn [sic] hearaid disc”. A further entry on that day, by Mrs Sheryl Mason, records “Actions: Report imported from Audiometry”.
In the proceedings before the Arbitrator, Mr Gittoes states that in late 2013 he did not know the cause of his hearing loss (T31) but conceded that he had a hearing problem in October 2014. In response to cross-examination by the appellant’s counsel, Mr Morgan, Mr Gittoes stated (at T20.32-T21.8):
“Q.    I’d like to suggest to you that, at the very least, as at October 2014 you were aware that you had a significant hearing problem; do you agree with that proposition?
A.     Not significant. I was aware I had a problem.
Q.     And you were aware, I’d like to suggest to you, that that problem was occasioned or caused by the work that you’d been doing over 20 years as a flight attendant?
A.     Yes.”
Mr Gittoes attended on Dr Lee’s medical practice on approximately four further occasions from 2 June 2015 until 13 August 2015, in which he complains of pain in his ear or poor hearing.
In late 2015, following a referral from Dr Lee, Mr Gittoes attends on Dr Tamhane. Mr Gittoes states that Dr Tamhane told him he suffered “a ‘bilateral high tone sensorineural noise induced hearing loss’ which was caused by my exposure to noise in the workplace.” Dr Tamhane suggested he could make a claim and referred him to Hearing Life to “discuss hearing aids”. Hearing Life told him that he “could make a claim and referred” him to Nikolovski Lawyers. Mr Gittoes states that Hearing Life confirmed that he required hearing aids on 14 October 2015.
Mr Gittoes concedes that he was not aware that his hearing loss had been caused by noise exposure at work until late September or early October 2015. In response to cross-examination by Mr Morgan, Mr Gittoes stated (at T23.24-T24.9):
“Q.    You say:
‘I just assumed it was part of getting older. I was not aware my hearing loss had been caused by noisy exposure at work until Dr Tamhane told me that was the case late September or early October 2015?’
A.      That’s true.
Q.     Is it not the case that you’ve told us today that, to your mind, you associated your hearing loss with the nature of the work that you were doing before that time?
A.     Yes.
Q.     And, indeed, you discussed that relationship with your general practitioner?
A.     Well, yeah, but Dr Tamhane was the one that virtually verified it, that, as the cause.
Q.     But you’d had occasion prior to see Dr Tamhane to discuss (a) your hearing loss and (b) your thoughts that it was related to your work with your general practitioner?
A.     Yes, just a thought.”
The evidence indicates that Mr Gittoes initially attended on Dr Tamhane on 17 August 2015. In a report dated 10 June 2016, Dr Tamhane records that on 17 August 2015 Mr Gittoes “presented with bilateral hissing tinnitus in the ears associated with a bilateral hearing impairment.” He adds that on review on 7 September 2015 both of Mr Gittoes’ “ears were free of infection”. He further added “[h]is audiogram revealed a bilateral moderate to severe symmetrical sloping high tone sensorineural hearing loss which is typical of noise induced hearing loss.”
On 26 November 2015, Mr Gittoes again attended on Dr Tamhane. In a report dated 4 December 2015, Dr Tamhane records a history of “bilateral hearing impairment”. He also records that there “is no history of recurrent ear infections or operations on the ears.”
Dr Tamhane concludes that “the tendencies, incidents and/or characteristics of Mr Gittoes’ employment, on the balance of probabilities gave rise to a real risk of Boiler Maker’s Deafness or deafness of a similar origin. His last noisy employer was QANTAS Airways.” He further concludes that Mr Gittoes reached maximum medical improvement and suffered from a 19 per cent whole person impairment in respect of hearing loss. Dr Tamhane recommended the use of bilateral digital hearing aids.

On 5 February 2016, Mr Gittoes attended on Dr Howison, at the request of the appellant. In a report dated the same, Dr Howison records a history of “noise induced hearing loss” and that his employment with Qantas “was such as to give rise to a real risk of industrial deafness.” He recorded that Mr Gittoes had “been aware of loss of hearing for about twenty years.” He assessed Mr Gittoes to have a 15 per cent whole person impairment in respect of hearing loss, comprising of 8 per cent whole person impairment in respect of occupational hearing impairment and 8 per cent whole person impairment in respect of non-occupational hearing impairment.

THE ARBITRATOR’S REASONS

There were two issues for the Arbitrator’s determination:
(a) whether the claim for compensation was precluded because the claim was commenced beyond the time limits stipulated in s 261 of the 1998 Act, and
(b) whether the claim for hearing aids was precluded by s 60(2A) of the 1987 Act by reason of the fact that prior approval for the treatment was not sought.
The Arbitrator’s reasons for decision in relation to these issues may be briefly summarised as follows.

Awareness of injury

It is not controversial that the deemed date of injury of Mr Gittoes’ hearing loss is 2 October 2006. His claim for compensation was not made until 16 December 2015. Accordingly, compensation could not be recovered as the claim was made more than six months after the injury was sustained (s 261(1)).
In order for Mr Gittoes to obtain the relief under s 261 of the 1998 Act, from the failure to make the claim within six months, it was necessary for him to establish two matters. First that he first became aware of having sustained the injury within three years of making the claim (on 16 December 2015) (s 261(4)). Second, that his failure to make the claim within six months of first becoming aware of the injury was because of ignorance or one of the other exemptions available under s 261(4).
Mr Gittoes had been treated for the past 27 years by his general practitioner, Dr Lee. There is no record in Dr Lee’s notes of any hearing problems until late 2013. At that point he treated Mr Gittoes for problems in relation to a build-up of ear wax and infection. A referral was made to a specialist however Mr Gittoes did not pursue the referral at that time (late 2013).
The Arbitrator accepted that Mr Gittoes’ explanation was consistent with the doctor’s notes which did not reveal any further consultations in respect of ear problems until August 2014, notwithstanding the fact that Mr Gittoes had been seeing his general practitioner for other health problems.
The Arbitrator also accepted Mr Gittoes’ evidence that Dr Lee did not proffer an opinion as to the cause of Mr Gittoes’ hearing loss in late 2013. This, the Arbitrator found, was consistent with Dr Lee’s notes. The Arbitrator declined to infer that a notation in Dr Lee’s notes in late 2013 in reference to “ear canals and drums good having poor hearing before as working in noise enviro as air industry” was evidence of a discussion at the time as to the cause of Mr Gittoes’ hearing loss, the Arbitrator finding “[t]his note is equally consistent with the doctor silently drawing his own conclusion”.
The Arbitrator found that Mr Gittoes agreed, against his own interests, when it was put to him by Mr Morgan that he discussed the cause of his hearing loss with his doctor in October 2014 and was “aware” in the relevant sense from that date that his hearing loss may have been caused by his employment. Although audiometric tests taken on or about 22 October 2014 are not in evidence and Mr Gittoes stated in evidence that he was not aware of the outcome of those tests, he accepted that he was aware in October 2014 that his hearing problems were “occasioned or caused by work” with the respondent.
The Arbitrator concluded that, armed with the results of the audiometric testing, Dr Lee was able to provide sufficient expert advice to Mr Gittoes to satisfy the concept of awareness through “expert advice” as discussed in Unilever Australia Ltd v Petrevska [2013] NSWCA 373; 85 NSWLR 677 (Petrevska).
The Arbitrator said (at [73]):
“I am satisfied on the balance of probabilities that the applicant was not aware of the cause of his hearing loss prior to October 2014. However the applicant has not satisfied, on the balance of probabilities, whether he was first aware of the cause of his hearing loss at any later point in time. This is because by October 2014 the applicant was having discussions with his general practitioner in the context of undergoing audiometric tests. Accordingly, given the absence of clear evidence as to what exactly was discussed with the general practitioner and the applicant’s admission, I am not persuaded that awareness occurred at a time later than October 2014.”

Ignorance and/or other reasonable cause

The Arbitrator accepted Mr Gittoes’ evidence that he was not advised of his legal rights to claim compensation in respect of his hearing loss until 20 October 2015. Mr Gittoes did not have a written medical opinion supporting his case against Qantas until his solicitor received Dr Tamhane’s report dated 4 December 2015. The claim was then promptly sent to Qantas on 16 December 2015.
The Arbitrator held that Mr Gittoes was not in a position to make a claim for compensation until he had written medical evidence supporting an injury caused by his employment. The Arbitrator further held that the absence of a written medical opinion established reasonable cause for the delay in making a claim within the meaning of s 261(4)(a) of the 1998 Act. Accordingly the Arbitrator accepted that Mr Gittoes failed to make the claim within time as he was unaware of his legal rights to claim compensation for hearing loss until 20 October 2015.
On that basis the Arbitrator held that, in the absence of contradictory evidence and accepting Mr Gittoes’ evidence, on the balance of probabilities Mr Gittoes’ failure to make the claim within the six month period was occasioned by ignorance and/or reasonable cause.

Section 60(2A)

It should be noted at the outset that at the time of the Arbitrator’s determination he had the benefit of a decision of Arbitrator Wardell in Muscutt v Chris Waller Racing Pty Ltd [2016] NSWWCC 122 (Muscutt No 1) concerning the operation of s 60(2A). He did not, however, have the benefit of the decision and findings of Acting Deputy President King SC dealing with an appeal from the decision in Muscutt No 1, namely Chris Waller Racing Pty Ltd v Muscutt [2016] NSWWCCPD 57 (Muscutt No 2).
The issue the Arbitrator was required to determine was whether the words “where liability has been initially declined” in cl 3.2.1.1 of the 2013 Guidelines required, as the appellant submitted, that the initial declinature of liability must pre-date the treatment or service in dispute.
The Arbitrator concluded at [106] that the words “was reasonably necessary” in cl 3.2.1.1 referred to treatment in the past tense. There was no basis to read those words as meaning that the treatment had to be provided in the past but “after liability was declined” (Muscutt No 1 and State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71 applied).
The Arbitrator declined to accept the appellant’s submission that s 60(2A) did not have a beneficial character. He further held that, in any event, it was unnecessary to find a beneficial construction in order for the exemption to apply.
The Arbitrator noted the potential for unjust consequences in circumstances where (with the exception of the first 48 hours) there would be no entitlement to recover medical expenses during the period until the insurer declined liability. Such an outcome in the Arbitrator’s view was plainly unjust, particularly where the delay was of the insurer’s own making. The Arbitrator (at [11]) adopted Arbitrator Wardell’s view in Muscutt No 1 (at [52]) that:
“The effect and purpose of the Exemptions was to recognise and revive the Commission’s jurisdiction as the ultimate and independent arbiter of such disputes.”
The Arbitrator ultimately concluded that the elements of cl 3.2.1.1 were satisfied. Therefore, Mr Gittoes was entitled to the cost of the hearing aids purchased in October 2015 which the respondent accepted were “reasonably necessary”.

GROUNDS OF APPEAL

The appellant submits that the Arbitrator erred in law:
(a) in finding that the respondent first became aware of the cause of his hearing loss within the meaning of s 261(6) of the 1998 Act in October 2014, and
(b) in finding that the respondent was entitled to the costs of his binaural hearing aids purchased on 22 October 2015 pursuant to s 60 of the 1987 Act.

AWARENESS OF INJURY

The appellant’s submissions

It is accepted that Mr Gittoes’ claim was commenced out of time. To remove the bar on recovering compensation by relying on s 261(6) of the 1998 Act he bears the onus of proving when he first became aware of his hearing impairment: Unilever Australia Ltd v Saab [2013] NSWWCCPD 2 at [43].
The Arbitrator did not accept Mr Gittoes’ submission that he first became aware that he suffered industrial deafness due to his employment when he was so advised by Dr Tamhane of the nature and cause of his condition. In those circumstances, so it is submitted, the Arbitrator did not accept that Mr Gittoes required “specialist advice” nor that “until that advice was obtained and confirmed that the condition arose out of [his] employment, [he] could not be aware of [his] injury within the meaning of s 261(6)”: Petrevska at [43].
The appellant submits that although the Arbitrator found that Mr Gittoes became “aware” in October 2014, the Arbitrator said (at [71]): “The reason why the applicant was ‘aware’ of the cause of his hearing loss in October 2014 is unclear from the evidence.” Thus it is submitted that the Arbitrator could not identify from the evidence what “piece of information” gave rise to the awareness: Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 (Inghams Enterprises) (at [88]).
The appellant submits that as Mr Gittoes was unable to prove when he first became aware of his injury he may not rely on s 261(6) of the 1998 Act and therefore it must follow that he sustained an injury on the agreed deemed date of injury, 2 October 2006.
The appellant submits that the Arbitrator’s findings (at [73]) of the reasons for decision “reflect the failure of [Mr Gittoes] to discharge his onus in this regard in finding that [Mr Gittoes] was not aware of the cause of his hearing loss prior to October 2014 but awareness did not occur at a time later than 2014”.
The appellant submits that without any mechanism or identified “piece of information” giving rise to Mr Gittoes’ awareness, the exception set out in s 261(6) of the 1998 Act has not been successfully activated by Mr Gittoes. The injury, not having resulted in death or serious permanent disablement, is not one for which compensation can be recovered due to the general operation of s 261 of the 1998 Act.

Mr Gittoes’ submissions

The respondent submits that the appellant’s submissions represent a reversal of its previous position. The crux of the appellant’s submissions on the issue of awareness on appeal is to deny that there was any proper evidentiary support for the proposition that by October 2014 Mr Gittoes was aware that he had a hearing loss caused by his work with the appellant.
The evidence that the respondent was so aware is:
(a) the suggestion put to Mr Gittoes in cross examination that he was at the very least as of October 2014 aware that he had a significant problem caused by his employment with the appellant and Mr Gittoes’ agreement with the suggestion (T20.32), and
(b) the appellant submitted that the Arbitrator should find as a fact that testing undertaken in October 2014 formed a factual basis for the general practitioner to express a concluded view on causation.
The appellant’s submissions seek to argue on the one hand that there is insufficient evidence to establish awareness of the cause of the hearing impairment on or before October 2014 and on the other hand, regardless of what the evidence may say, the Arbitrator found that there was no such awareness even after that date (Arbitrator’s reasons at [20], [22] and [73]).
Mr Gittoes submits that neither proposition has merit.
On the issue of “awareness”, contrary to the appellant’s submissions, [88] and [89] of the decision in Inghams Enterprises were not adopted by the Court of Appeal in Petrevska. However, [90] and [91] of Inghams Enterprises were cited with approval in Petrevska. The importance of the distinction is to demonstrate that the proper test of awareness is not that a worker must become aware of his hearing loss and its cause through “a mechanism of identifiable piece of information” but rather that “that there is nothing in the section or the context of the legislation as a whole, that suggests a worker must become aware in any particular way” Inghams Enterprises at [88].
Mr Gittoes rejects the submission that he did not become aware of the cause of his deafness even after October 2014. He submits that it is clear from [73] of the Arbitrator’s reasons that he was examining when Mr Gittoes first became aware of his hearing loss. The Arbitrator was not stating that he was unable to find that Mr Gittoes was aware after October 2014 of the cause of his hearing loss. On the contrary, he set out the evidence of Dr Tamhane in his report of 7 September 2015 as drawing a connection between the hearing loss and noise exposure.

DISCUSSION AND FINDINGS – AWARENESS OF INJURY

It is difficult to reconcile the stance taken by the appellant on appeal with that argued before the Arbitrator.
To argue that Mr Gittoes failed to discharge the onus of proving when he became aware that he suffered from industrial deafness due to a lack of probative evidence runs counter to the way in which the case was argued by the appellant before the Arbitrator.
Counsel for the appellant, Mr Morgan, elicited from Mr Gittoes in cross examination an admission that he was aware that he suffered a hearing impairment occasioned or caused by his employment over the course of his 20 years as a flight attendant. At T20.19 the following exchange took place:
“Q. So as at October 2014 you'd been seeing Dr Lee regularly about your hearing for going on 12 months?
A. I had seen - regularly, I don't know about regularly but, again, his records would show whether I have been or not.
Q. He's referred you to an ear, nose and throat specialist?
A. Yes.
Q. He's conducted hearing tests?
A. Yes.
Q. I'd like to suggest to you that, at the very least, as at October 2014 you were aware that you had a significant hearing problem; do you agree with that proposition?
A. Not significant. I was aware I had a problem.
Q. And you were aware, I'd like to suggest to you, that that problem was occasioned or caused by the work that you'd been doing over 20 years as a flight attendant?
A. Yes.”
Mr Morgan submitted to the Arbitrator at T57.9:
“So what I'm putting to you, Arbitrator, on the background of that clinical or diagnostic flow, you have to accept, where the applicant is adamant that he knew that the problem of his hearing loss was caused by his work, that there was the requisite level of aware [sic], because we have at least three instances with the general practitioner over a period of some 18 months where there's discussion with respect to cause, there's testing done and, ultimately, in fact, two referrals to an ear, nose and throat specialist.”
It is trite law that parties are normally bound by the conduct of their case at first instance (University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68, at [7]). The appellant argued before the Arbitrator that there was sufficient evidence to support a finding of “awareness” as at October 2014. In those circumstances it is not open to the appellant to argue on appeal that there is insufficient evidence to establish when Mr Gittoes first became aware of his injury and its causative relationship to his employment.
Even allowing the onus point to be argued I would reject it in any event. I do not accept that the appellant’s references to the statement of principles garnered from Inghams Enterprises and Petrevska accurately represent the elements of establishing the requisite state of awareness for the purposes of s 261(6).
In Inghams Enterprises Deputy President Roche provided a helpful discussion concerning the matters to be taken into consideration to determine if and when a worker is aware of a hearing impairment related to his employment. The extract from the Deputy President’s decision is somewhat lengthy, however, it is worth re-stating. He said (at [88]-[91]):
“88. The Macquarie Dictionary defines ‘aware’ as ‘cognisant or conscious’; the New Shorter Oxford English Dictionary has, as its second meaning, ‘conscious, sensible, not ignorant, having knowledge’. In the context of s 261, I believe that ‘aware’ means knowledge or knowing. There is nothing in the section, or the context of the legislation as a whole, that suggests that a worker must become aware in any particular way. The worker may become aware on receipt of one, and only one, piece of information. Alternatively, a worker may first become aware he has received an injury after having received several pieces of information gathered over time.
89.     The test is an objective one, but is based on the individual worker’s knowledge, not the knowledge of some hypothetical reasonable person. The worker must be actually aware, not constructively aware. In determining when a worker became aware he has received an injury it is necessary to have regard to the worker’s state of knowledge at the relevant time. A worker cannot be said to be aware he has received a work injury if he is unaware of the nature of the condition said to constitute the injury or is unaware that it has been caused by work. Because of the insidious nature of boilermaker’s deafness, and lack of general knowledge in the community of its cause, awareness that a worker has received a s 17 injury will usually require specialised knowledge that will normally come from an appropriate expert in the field.
90.     In a claim for compensation for boilermaker’s deafness, a worker is aware that he has received an injury to which s 17 applies when he is aware of two things. First, that he has sensorineural hearing loss (boilermaker’s deafness and any deafness of a similar origin (s 17(2)), which is a loss of hearing of such a nature as to be contracted by a gradual process. As noted above, because many things unrelated to employment can cause hearing loss, it is not sufficient that the worker is merely aware of a gradual loss of hearing. In addition, and second, though liability will ultimately fall on the employer who last employed the worker in employment to the nature of which the injury was due, as opposed to the employer who actually caused the hearing loss, the worker must be aware that his hearing loss has been contributed to by his employment.
91.     Each case will turn on its own facts. In some cases, a worker will not be aware that he has received an injury until he has obtained expert medical evidence and advice on the relevance of that evidence …”
In Petrevska, Macfarlan JA (Meagher JA and Tobias AJA agreeing) adopted Deputy President Roche’s observations at [90] and [91] in Inghams Enterprises with approval. Macfarlan JA added (at [34]):
“The approach taken by the arbitrator was in my view consistent with the decisions to which I have referred. She made particular reference to Inghams Enterprises which I consider aptly encapsulates the proper approach: that is, because the determination of the cause or causes of sensorineural hearing loss ordinarily requires the application of medical expertise, the opinion of a medically unqualified worker about that issue will rarely be of value, or amount to knowledge of that worker that his or her hearing loss has been caused by the worker's noisy employment …”

Also in Petrevska, Tobias AJA, whilst agreeing with the orders and reasons of Macfarlan JA, added the following observations stating (at [43]-[44]):
“43. … Accordingly, in order for the respondent to be aware (or have knowledge) of the fact that her deafness was noise induced, it was necessary for her to obtain specialist advice and until that advice was obtained and confirmed that the condition arose out of her employment, she could not be aware of her injury within the meaning of s 261(6).
44. Of course, each case must depend upon its own facts and, in particular, on the type of injury alleged to have been received by the worker. What is clear is that in the case of injuries of gradual onset more than a mere belief or a suspicion is necessary for there to be relevant awareness…”
The objective evidence supporting the Arbitrator’s conclusions is:
(a)     on 22 October 2014 Mr Gittoes had discussions with his general practitioner about his poor hearing and the need for a hearing aid;
(b)     he submitted to an audiometric assessment on or about 22 October 2014;
(c)     although Mr Gittoes was not made aware of the outcome of those tests he admitted in cross examination that in October 2014 he was aware that his hearing problem was “occasioned or caused by his work with Qantas”, and
(d)     the Arbitrator accepted that Dr Lee, a medical practitioner, armed with the results of the audiometric testing, was able to provide sufficient expert advice to Mr Gittoes to satisfy the test of awareness as discussed in Inghams Enterprises and Petrevska.
The appellant submitted that it was necessary to identify the “piece of information” giving rise to awareness. The appellant cites Inghams Enterprises at [88] as authority for that proposition. However, as is clear from the extract quoted at [74] above, Deputy President Roche’s observations in Inghams Enterprises do not support the appellant’s submission; in fact they are to the contrary. Deputy President Roche made it clear that workers may become aware on receipt of one and only one piece of information or alternatively a worker may first become aware that he or she has received an injury after receiving several pieces of information gathered over time. That is precisely what happened in this case. The evidence identified at [77] above was accepted by the Arbitrator as pieces of information sufficient to prove Mr Gittoes’ awareness at a particular point in time. The Arbitrator’s findings are consistent with authority in this Commission and the Court of Appeal and do not demonstrate error.
The appellant selectively quoted from the Arbitrator’s decision at [73] (extracted at [45] above) in support of its submission that Mr Gittoes failed to discharge the onus of proof on the question of awareness. The Arbitrator’s comment at [73], although perhaps inelegantly expressed, makes the point that the evidence established that Mr Gittoes could not have been aware of his hearing loss prior to October 2014, nor that he became aware after that date. The passage merely served to confirm the correctness of the Arbitrator’s findings of fact as outlined above. If there is any doubt about the Arbitrator’s finding it is clarified and confirmed in his reasons at [76].
For these reasons I am satisfied that there was a solid evidentiary foundation for the Arbitrator’s conclusion that Mr Gittoes first became aware that he had sustained industrial deafness and became aware of the cause of his hearing loss in October 2014.
Consequently ground one fails.

THE OPERATION OF S 60(2A)

As the decisions in Muscutt Nos 1 & 2 are directly relevant to the parties’ submissions the following is a brief summary of those decisions.

The decision in Muscutt No 1

In Muscutt No 1 the Arbitrator observed that s 60(2A)(a) anticipates, by its own terms, that the section may operate unfairly or in unforeseen circumstances. Hence it may be necessary to effectively amend it by the inclusion in the relevant workers compensation guidelines of exemptions to its operation.
Applying a purposive approach to the interpretation of s 60(2A)(a) the Arbitrator considered that it was intended to remedy the situation where a worker might incur large costs for medical treatment over a prolonged period of time without the insurer having any opportunity to determine whether such treatment was reasonably necessary as a result of the injury or to proactively participate in management of the worker’s claim or to promote rehabilitation in accordance with the scheme objectives.
The Arbitrator considered the mischief to which the guidelines address themselves following recognised principles of statutory construction. He noted that the mischief created by s 60(2A)(a) was that should an insurer decline to approve treatment, the worker might well have the treatment, however, the insurer would not be liable for the cost of the treatment and there was no recourse to the Commission to enable the dispute to be resolved. Thus a worker who would otherwise be entitled to recover the cost of his or her treatment under s 60(1) was deprived of that entitlement simply because the insurer said so. The Arbitrator considered the effect and purpose of the exemptions was to recognise this and to revive the Commission’s jurisdiction as the ultimate and independent arbiter of such disputes.
Secondly, the Arbitrator observed that it was both irrational and unjust to deprive a worker of an entitlement to indemnification under s 60 in circumstances where those entitlements satisfy s 60(1) and are prima facie the liability of the insurer pursuant to ss 9 and 60(1) of the 1987 Act.
Such irrationality and unfairness was contrary to the objectives of the 1987 Act set out in s 3.
Further the Arbitrator considered it irrational and unjust to deprive some workers but not others to recourse to resolution or determination of a dispute by the Commission, depending on whether the dispute which enlivened the Commission’s jurisdiction had been formally raised before or after the relevant treatment had been undertaken.
Whilst clearly s 60(2A)(a) is not a beneficial provision, the object of the exemptions are beneficial to workers in that they restore rights that would otherwise have been lost to them. In those circumstances the Arbitrator adopted a construction of cl 3.2.1.2 most beneficial to injured workers, that construction being reasonably open for the reasons outlined above.
Construed in this way there was still work left for s 60(2A)(a) to do. It provided a requirement that in accepted claims the insurer has the opportunity to approve treatment prior to it being undertaken and thereby assists in proactively managing the worker’s claim in promoting the objects of the Act. However once approval has been declined by an insurer issuing a s 74 notice disputing liability in respect of a claim or any aspect of a claim, the jurisdiction of the Commission is enlivened by ss 288 and 289 of the 1998 Act.

The decision in Muscutt No 2

Confirming the decision in Muscutt No 1, Acting Deputy President King in Muscutt No 2 made the following findings.
He accepted that it would be a “very curious result, difficult to justify and even approaching absurdity”, to say that if a worker undergoes medical treatment which is subsequently found or agreed to result from an employment injury and to be reasonably necessary as a response to that injury, that the worker can be left to fund the treatment because approval was not given for it to take place. He concluded that it is difficult to see in principle any difference between a refusal on the part of an insurer to approve treatment having been afforded a fair opportunity to know about it and to evaluate it, before it happened, and a denial of liability in respect of it after it happened.
The Acting Deputy President agreed with Arbitrator Wardell in Muscutt No 1 that there is a degree of ambiguity about the meaning of cl 3.2.1.1 read in conjunction with the statutory provision. This led him to approach the task of construing the provision by identifying the purpose of the statutory provisions and the guidelines. This led to a consideration of whether the proper construction would leave s 60(2A) and the guidelines with some work to do.
The Acting Deputy President concluded that the word “is” representing the present tense in the opening words of cl 3.2.1.2 was neutral, neither standing in the way of Mr Muscutt’s argument or giving any measureable assistance to the appellant. He agreed with the Arbitrator’s conclusion that there is genuine work for s 60(2A) as affected by the guidelines to do if the texts are read as the Arbitrator read them and as Mr Muscutt contended for.
He concluded at [60]:
“In those circumstances the force of the argument based upon the strange consequences of the appellant’s approach, which I think it is fair to say border on irrational, clearly in my judgment predominates over the substance of the appellant’s approach.”
The Acting Deputy President observed (at [61]) that the work of s 60(2A) included giving an insurer, after the provision of reasonable information as to the proposed treatment, an opportunity to exercise some influence over the treatment. That may involve discouraging treatment which is of a non-mainstream nature or not endorsed by a reputable body of medical practitioners. Alternatively it may provide an insurer an opportunity to influence a change in the proposed treatment to the benefit of the worker’s health and physical integrity.
Ultimately the Acting Deputy President concluded that where the insurer chooses to deny liability, either in advance of the treatment or an outright denial of liability at any stage, if the dispute is found in favour of the worker by the Commission the only sensible outcome is that the expense be borne by the party to whom s 60(1) points. Whilst he did not accept that a s 74 notice issued after the treatment has taken place creates a retrospective dispute existing in advance of the treatment, a dispute at that point in time is not essential. All there need be is a dispute as to whether the need for treatment is a result of the injury and whether the treatment is reasonably necessary to deal with the consequences of the injury or both at the relevant time.
He said at [64]:
“In my judgment the correct view of the legislation and Guidelines is that cl 3.2.1.2 means, as the Arbitrator held, that if at any relevant time the employer, through the insurer or directly, denies liability for medical treatment the exemption operates. Lack of prior refusal of approval is not a bar to the recovery of the medical expense. Because a refusal by an insurer in advance of treatment has the same practical effect as a denial of liability at any material time, the real practical utility of s 60(2A) should be seen to be to give the insurer a voice in the decision a worker must ultimately make about whether to have medical treatment and if so what treatment to have.”

The appellant’s submissions

On 29 November 2016 the Registrar directed the parties’ attention to the Presidential decision in Muscutt No 2 and directed that further submissions be filed by both parties concerning the relevance if any of that decision. The summary of these submissions include submissions received by the Commission in response to that Direction.
The appellant submitted that it cannot be liable for the cost of medical and related treatment given the “proper application” of s 60(2A)(a) of the 1987 Act and the exemptions to that section as allowed in the guidelines where a worker received that medical and related treatment during a period when liability for the injury was not the subject of a dispute.
It submitted that the Arbitrator erred in finding that cl 3.2.1.1 can have “retrospective” operation or that there is no “timing” element.
Section 60(2A) of the 1987 Act was introduced with the intended purpose of allowing insurers (including self-insurers) to participate actively in the management of a worker’s claim. The amendment was intended to address circumstances in which a worker might incur costs for medical treatment without the knowledge of the insurer, or any opportunity for prior determination or management of the treatment. The appellant submits that s 60(2A) of the 1987 Act requires that an insurer make a determination of liability prior to the injured worker obtaining medical treatment.
The appellant further submits that the Arbitrator’s analysis of s 60(2A) and the guidelines would render the operation of s 60(2A) meaningless.
The use of the past tense “provided” for the provision of treatment when combined with the imperfect past tense “where liability has been initially declined” supports a construction that has an element of “timing”. It submits:
“The Appellant submits that ‘where’ (used incorrectly in this paragraph) should more properly read ‘when’ but, in any event, submits that the imperfect past tense requires that liability being declined was continuing at the point in time described i.e. when the treatment or service was provided. In the present case liability to pay compensation had not been declined when the hearing aids were provided.”
The intention of the exemption, looked at in this light, is not to prevent workers, who have had decisions made on liability that are subsequently shown to be incorrect, from proceeding to have treatment whilst liability is declined.
Section 60(2A) is not an amendment that operates beneficially: ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1; 88 ALJR 624 (Goudappel).
The Arbitrator erred in finding that the effect of the exemption was to revive the Commission’s jurisdiction as the ultimate and independent arbiter of disputes prior to determination by an insurer, regardless of whether the insurer had made a determination.

The appellant’s submissions with respect to the application of Muscutt No 2

The appellant acknowledges that, by the rationale of the decision of Acting Deputy President King SC in Muscutt No 2 its second ground of appeal must fail. However, the appellant submits that Muscutt No 2 was not correctly decided and, if it is the appropriate course, requests that the issue should be referred to the President as a question of law.
In Muscutt No 2 Acting Deputy President King SC accepted that if liability to pay compensation for a medical expense was declined at any stage, even after the expense had been incurred, then cl 3.2.1.2 applied such that there was an exemption to the operation of s 60(2A) and the compensation in issue could be ordered to be paid by the Commission.
Unlike Muscutt No 2 the present appeal concerns cl 3.2.1.1 (dealing with a dispute as to liability) rather than cl 3.2.1.2 (dealing with disputes as to whether the treatment or service was reasonably necessary).
In this case Mr Gittoes obtained the disputed hearing aids prior to making a claim for compensation in respect of his injury. The liability for the cost of the hearing aids was not disputed on the grounds they were not reasonably necessary as a result of the injury, rather liability was declined because Mr Gittoes had failed to make his claim within time for the purposes of s 261 of the 1998 Act.
The appellant submits therefore that Mr Gittoes’ case is “capable of being distinguished” from Muscutt No 2. The appellant further submits:
“That said, the rationale of ADP King SC would, the Appellant concedes, extend to the present case as, in effect, there has been ‘outright denial of liability at any relevant stage of what amounts to a claim for medical treatment’.” (emphasis in original)
In Deans v Roderic Neil Mitchell t/as RN Mitchell [2016] NSWWCC 279 (Deans) Arbitrator Rimmer held that neither of the exemptions referred to in the guidelines applied in circumstances where, as in Mr Deans’ case, liability had been declined simply on the basis of a failure to obtain prior approval for medical treatment. It was not suggested that there had been any dispute in relation to liability or that the relevant treatment was reasonably necessary. This situation was referred to by Acting Deputy President King SC in Muscutt No 2 as an anomaly. It is in reference to the decision in Deans and the said “anomaly” that the following submissions are made.
Acting Deputy President King applied a purposive test to the interpretation of s 60(2A). In so doing he did not correctly identify the purpose of the amendment to s 60. The appellant submits that when the correct purpose of the amendment is identified, there is no “anomaly”, but the suggested anomaly can be understood to be within the purpose of the amendments allowing for a harmonious operation of the legislation.
In Muscutt No 2 Acting Deputy President King referred to both the explanatory note and the second reading speech for the Workers Compensation Amendment Bill 2012 which introduced s 60(2A) and limitations placed on the recovery of medical and related treatment expenses under s 60(1). It is submitted that the second reading speech expressly referred to the purpose of the amendment as a means limiting liability, as does the explanatory memorandum.
It is for the reasons identified above that s 60(2A) was specifically placed in s 60 of the 1987 Act rather than in the 1998 Act.
If, as Acting Deputy President King found, the purpose of the amendment was to give insurers a voice in decisions concerning medical treatment, the appellant submits it would have more properly been inserted into Div 3 of Pt 3 of Ch 7 dealing with the procedural parameters for medical claims regarding treatment. Alternatively if the purpose of the amendment was to provide the employer/insurer with a voice in relation to appropriate rehabilitation the amendment may have been inserted in Ch 3 of the 1998 Act concerning workplace injury management which are the provisions directed to the purposes that Acting Deputy President King has attributed (incorrectly in the appellant’s submissions) to s 60(2A).
In the appellant’s submission, the clear legislative intention to place s 60(2A) within the section dealing with liability to make payments in relation to reasonably necessary medical treatment was to limit that entitlement.
This purpose is in harmony with the broader purposes of the 2012 amendments and their focus on reducing premiums paid by New South Wales employers. In particular the appellant contends that the purpose of the insertion of s 60(2A) in the 1987 Act is consistent with the second, sixth and seventh of the seven principles outlined in the Government paper NSW Compensation Scheme to which reference is made in the second reading speech. Those principles are:
(a)     to contribute to economic and jobs growth, including for small businesses, by ensuring that premiums are comparable with other States and there are optimal insurance arrangements;
(b)     to reduce the high regulatory burden and make it simple for injured workers, employers, and service providers to navigate the system, and
(c)     to strongly discourage payments, treatments and services that do not contribute to recovery and return to work.
The appellant contends that this interpretation gives rise to no anomaly.
Read in context, the purpose of the words “where liability has been initially declined” in the guidelines can be given their plain and tense specific meaning. This statutory description cannot be satisfied in cases such as the present where liability was not “initially declined”; the treatment having been provided before any claim for compensation was made, let alone declined.
The appellant submits that the purpose of s 60(2A) is to provide circumstances in which “an employer is not liable” for medical expenses and so is “patently not beneficial”: Goudappel at [29].
In this context the exemptions in the guidelines are designed to address circumstances in which a worker has sought prior approval and liability has been declined (cl 3.2.1.2) or cannot seek prior approval as liability for the injury has been declined (cl 3.2.1.1).

The appellant submits “in the latter case (pertinent to the appellant’s appeal), this is why it was necessary to add ‘and it is agreed or determined that the treatment or service provided was reasonably necessary’ as this further step becomes necessary”. This is not necessary in cl 3.2.1.2, as the appellant submits, because it is assumed by the writers of the guidelines that prior approval has been sought and liability for the medical treatment itself declined.
This is consistent, so the appellant submits, with a plain reading of the legislation that the approval is required before medical treatment is obtained and in those circumstances the decision in Deans, whilst harsh, no longer is anomalous.

The respondent’s submissions

The exemptions contained in cll 3.2.1.1 and 3.2.1.2 “soften” the impact of s 60(2A). They are remedial provisions and must be interpreted accordingly (Pearce and Geddes, Statutory Interpretation in Australia 5^th edition at pp 227–228).
The exemptions provided for at 3.2 of the guidelines require only that the denial of liability occur before the subsequent Commission finding rather than before the finding and the treatment concerned. The use of the word “initially” does not on any interpretation change the meaning contended for.
In response to the Registrar’s Direction of 29 November 2016 and in response to the decision in Muscutt No 2 Mr Gittoes makes the following submissions.
The decision in Muscutt No 2 dealt with cl 3.2.1.2. To operate, cl 3.2.1.2 requires a dispute about treatment expenses being reasonably necessary, and a finding by the Commission that the treatment or service was reasonably necessary.
The respondent by its dispute notice dated 17 February 2016 raised the issue of whether Mr Gittoes’ treatment expenses were reasonably necessary. To the extent that the appellant’s submissions suggest otherwise, they are misleading.
In accordance with the decision in Muscutt No 2 it is immaterial that the dispute notice post-dated the treatment concerned. It is also immaterial that that dispute may have been later withdrawn.
In addition to finding that there had been a dispute, the Arbitrator made a finding that the treatment concerned was reasonably necessary.
Mr Gittoes adopts the reasoning in Muscutt No 2 in support of the proposition that for the purposes of satisfying the requirement of cl 3.2.1.2, there was, on the facts of this case, a relevant dispute about “reasonably necessary treatment or service” and, in addition, the Commission found that the treatment was reasonably necessary.
Mr Gittoes made no submissions about the correctness or otherwise of the decision in Muscutt No 2.

DISCUSSION AND FINDINGS – THE OPERATION OF S 60(2A)

Was the decision in Muscutt No 2 correctly decided?

I have concluded, for the following reasons, that Muscutt No 2 was correctly decided.
As this appeal turns in part upon a question of statutory construction, it is appropriate to set out some basic principles.
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole. The context and general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. Therefore the process of construction must always begin by examining the context of the provision that is being construed: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (Project Blue Sky) (at [69]).
The proposition was put even more succinctly in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [10] where the plurality held that the “question of construction is determined by reference to the text, context and purpose of the Act”.
Acting Deputy President King commenced his analysis of statutory construction issues by satisfying himself of the purpose of the introduction of s 60(2A). He concluded that the practical utility of s 60(2A) was to provide the insurer with a voice in decisions concerning medical treatment undertaken by workers. It gave an insurer the opportunity to discourage treatment not endorsed by a reputable body of medical practitioners or to encourage treatment that may in a given case result in a change of the proposed treatment to the benefit of the worker. I agree with that analysis.
The appellant argues that in so finding the Acting Deputy President wrongly identified the purpose of the enactment and in turn wrongly construed its operation. It argues that the provision was introduced so as to limit an employer’s liability to make payments with respect to reasonably necessary medical treatment.
As the Arbitrator observed in Muscutt No 1, s 60(2A)(a) anticipates, by its own terms, that the section may operate unfairly or in unforeseen circumstances. Hence it may be necessary to effectively amend it by the inclusion in the relevant workers compensation guidelines of exemptions to its operation.
Read in isolation, there may be some force in the argument that the opening words of s 60(2A) would have the effect of limiting an employer’s liability in circumstances where treatment is undertaken without prior approval. However, to read the whole of the provision in that light is to ignore the exemptions from the operation of the provision provided for in s 60(2A)(a). Namely, treatment of an urgent nature provided for in the first 48 hours and treatment or services exempt from the operation of the provision by guidelines made for that purpose. For this reason the submission that the appellant’s construction is to be preferred by reason of the placement of s 60(2A) in the 1987 Act as opposed to the provisions in the 1998 Act to which it referred lacks persuasive force. Even if the exemptions to s 60(2A) were placed in the 1998 Act as opposed to the 1987 Act, the provisions must still be read together to give effect to their meaning – s 2A of the 1987 Act.
As discussed above in Project Blue Sky, the context and general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. To give an illustration of the unfairness of the outcome for which the appellant contends, take the case of a worker who has suffered an accepted back injury which rendered the spine susceptible to a disc prolapse. If such a prolapse subsequently occurs and requires urgent surgical intervention before an application can be made to the insurer for the cost of the treatment, on the construction for which the appellant contends, the worker could not recover the cost of the treatment even if it is found to be reasonably necessary as a result of the original injury. The appellant submits that such an outcome whilst “harsh” is not anomalous. I disagree. Not only would such an outcome be anomalous it would, as Deputy President King observed, “border on the irrational.”
Further, I agree with Arbitrator Wardell in Muscutt No 1 that it is irrational and unjust to deprive some workers but not others to recourse to resolution or determination of a dispute by the Commission, depending on whether the dispute which enlivened the Commission’s jurisdiction had been formally raised before or after the relevant treatment had been undertaken.
The gravamen of the appellant’s argument is that the use of the past tense “provided” for the provision of treatment when combined with the imperfect past tense “where liability has been initially declined” supports a construction that has an element of “timing”, namely that liability being declined was continuing at the point in time when the treatment or service was provided. I reject the submission.
The appellant’s approach to the construction of the guidelines seeks to place emphasis on individual words and phrases to give the provision a meaning that is not evident on a plain reading of the text and context of the guideline. In Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 396-397 Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ said:
“The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In R v Brown [1996] 2 WLR 203 at 218; [1996] 1 All ER 545 at 560 [now [1996] AC 543 at 561], a recent House of Lords decision, Lord Hoffmann said:
‘The fallacy in the Crown's argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence. ... This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.’”
Read as a whole the purpose of to the exemptions to s 60(2A) identified in the guidelines is to ameliorate the obvious anomaly of the kind discussed (at [143]) above and as correctly identified by Arbitrator Rimmer in Deans. Namely, that in circumstances where the treatment or service is provided without prior approval there was no mechanism for a worker to recover the cost of the treatment in circumstances where there was no dispute that the worker had sustained an injury arising out of or in the course of employment and that the treatment was reasonably necessary.
I see no justification for reading into the provision the “timing” element contended for by the appellant. Had the legislature intended that the exemptions to s 60(2A) would be limited only to the cost of treatment provided after prior approval was sought it could easily have so provided, but it did not. This construction is in harmony with the 1987 and 1998 Acts as a whole. In particular it is in harmony with s 9 of the 1987 Act, which directs that a worker who has sustained an injury “… shall receive compensation from the worker’s employer in accordance with the Act” (emphasis added).
Further, the construction favoured in Muscutt No 2, with which I agree, is in harmony with ss 288 and 289 of the 1998 Act which enliven the jurisdiction of the Commission once an insurer has declined a claimed benefit giving rise to a disputed entitlement.
I reject the appellant’s submission that the construction for which the respondent contends would leave s 60(2A)(a) with no work to do. The provision provides a mechanism whereby in accepted claims the insurer has the opportunity to approve treatment prior to it being undertaken and thereby assists in proactively managing the worker’s claim and promoting the objects of the Act.
In Muscutt No 2, Acting Deputy President King placed some emphasis on the second reading speeches with respect to the Workers Compensation Legislation Amendment Bill 2012 (which introduced s 60(2A)). Introducing the Workers Compensation Legislation Amendment Bill 2012, the Hon G Pearce said:
“An employer’s liability for medical and related treatment and rehabilitation services will be made subject to preconditions to ensure that the treatment is appropriate and properly provided and approved. WorkCover guidelines will be able to limit an employer’s liability for medical and hospital treatment and rehabilitation services…”
Commenting on the usefulness of Parliamentary speeches to identify legislative intention Spigelman CJ said in Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 (at [12]):
“Statements of intention as to the meaning of words by Ministers in a second reading speech, let alone other statements in Parliamentary speeches are virtually never useful.”
In the same matter Mason P added (at [162]):
“Statements in Parliament, even by Ministers during the Second Reading debate, will…seldom be available to elucidate the meaning of the later-enacted text…”
For the reasons identified above I am reluctant to rely on the second reading speech in support of the construction of the provisions under consideration, particularly as the guidelines had not come into operation at the time of the Minister’s speech. Although King ADP made passing reference to the second reading speech it was not fundamental to the construction he preferred.
The submission that s 60(2A) is not a beneficial provision does not advance the appellant’s position on appeal. That is because the introduction of the guidelines clearly are beneficial in that they restore rights that would otherwise have been lost to workers through the operation of s 60(2A)(a). Therefore, it was open to the Arbitrator, and to the Acting Deputy President, to adopt a construction of the exemption there under consideration most beneficial to injured workers.
To my mind the use of the word “initially” in cl 3.2.1.1 is inclined to create some ambiguity. Absent the word “initially” it seems to me that there would be little argument that Mr Gittoes would be entitled to enjoy the benefit of the exemption provided.
The question remains should cl 3.2.1.1 be construed as meaning that the requirement for treatment is exempt when liability has been declined at any point prior to a Commission decision, or only available when liability has been declined after the treatment has been provided and before a Commission decision.
The approach to the interpretation of beneficial provisions enunciated here is subject to the rider that the interpretation adopted “must be restrained” within the confines of the actual language employed and that which is fairly open on the words used: DC Pearce and RS Geddes, Statutory Interpretation in Australia (Butterworths, 8^th ed, 2014) at 9.2.
In IW v City of Perth [1997] HCA 30; 191 CLR 1 Brennan CJ and McHugh J said (at 11):
“[B]eneficial and remedial legislation, like the [Equal Opportunity Act], is to be given a liberal construction. It is to be given ‘a fair, large and liberal’ interpretation rather than one which is ‘literal or technical’. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.” (footnotes omitted)
Adopting the construction of the words “when liability has been initially declined” as meaning declined prior to a Commission determination gives those words a liberal construction but not one that it is unreasonable or unnatural.
Although it does not form part of my reasoning, I note that the current form of the guidelines which operate from 1 August 2016, have eliminated the prospect for any ambiguity by describing the exemption to s 60(2A) as:
“Any treatment or service that has been disputed and the Workers Compensation Commission has made a determination to pay for treatment or services.”
The question of a referral of law does not arise. Pursuant to s 351 of the 1998 Act the referral of a question of law to the President may only arise in proceedings before an Arbitrator where the Arbitrator seeks to refer a question of law for the opinion of the Commission constituted by the President. No such application has been made by the Arbitrator in these proceedings nor has any application been made for such a referral before him. In any event, to the extent that a question of law arises on the application of s 60(2A) it has been determined in these proceedings.
Although in Muscutt No 2 the Commission’s determination focused attention on cl 3.2.1.2 (reasonably necessary treatment) and the present appeal concerns cl 3.2.1.1(dealing with a dispute as to liability) the appellant conceded that if Muscutt No 2 was correctly decided, the second ground of appeal must fail. For the reasons identified above, I am satisfied that the decision in Muscutt No 2 was correctly decided. It follows that ground two must fail.

DECISION

Where a worker who would otherwise be entitled to recover the cost of his or her treatment under s 60(1) of the 1987 Act was deprived of that entitlement by the operation of s 60(2A), the Commission will have jurisdiction to make orders in respect of any such disputed entitlements regardless of whether the treatment was rendered before or after an insurer disputed the claim.

ORDERS

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

Judge Keating
President

24 March 2017