Thatcher v Cessnock City Council - [2022] NSWPIC 37

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Thatcher v Cessnock City Council [2022] NSWPIC 37
APPLICANT:	Phillip Mark Thatcher
RESPONDENT:	Cessnock City Council
MEMBER:	Jacqueline Snell
DATE OF DECISION:	31 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim made by the applicant under section 60 of the Workers Compensation Act 1987 (1987 Act) for the costs associated with the fitting of digital binaural hearing aids; whether digital binaural hearing aids are reasonably necessary treatment is in issue; Held – digital binaural hearing aids are reasonably necessary treatment resulting from work-related hearing loss and tinnitus; the respondent is to pay the costs associated with the fitting of digital binaural hearing aids in accordance with section 60 of the 1987 Act.
DETERMINATIONS MADE:	1. Digital binaural hearing aids are reasonably necessary treatment for the work-related hearing loss and tinnitus the applicant has sustained. 2. The respondent is to pay the costs associated with digital binaural hearing aids in accordance with s 60 of the Workers Compensation Act1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Philip Mark Thatcher (Mr Thatcher) was previously employed by the respondent, Cessnock City Council (Council). Mr Thatcher is currently 61 years of age.
Mr Thatcher worked with Council between April 2018 and June 2018 where he was exposed to loud noise. Since July 2018 Mr Thatcher has been employed by Maitland Council, working as an Assistant Team Leader in the Waste Depot.
In these proceedings Mr Thatcher makes a claim made under s 60 of the Workers Compensation Act 1987 (1987 Act) for costs associated with digital binaural hearing aids.
Mr Thatcher’s claim for costs associated with digital binaural hearing aids is declined and in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act1998 he has been issued with notice dated 23 October 2020. The Council considers digital binaural hearing aids are not reasonably necessary treating for the work-related hearing loss and tinnitus Mr Thatcher has sustained.

ISSUES FOR DETERMINATION

The parties agree the following issue remains in dispute:

(a) whether digital binaural hearing aids are reasonably necessary treatment for the work-related hearing loss and tinnitus Mr Thatcher has sustained.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

Mr Thatcher’s claim for compensation came before me for teleconference on 2 December 2021. Mr Bechelli, solicitor, appeared in the interests of Mr Thatcher and Ms Ulmer, solicitor, appeared in the interests of Council. Mr Thatcher was present.
With Mr Thatcher’s claim unresolved at teleconference, his claim came before me for conciliation/arbitration hearing on 13 December 2021. Mr Hallion of counsel appeared for Mr Thatcher, instructed by Mr Bechelli. Mr Saul of counsel appeared for Council, instructed by Ms Ulmer. Mr Thatcher was present and Mr Wilson from StateCover was also present during the conciliation phase of the listing.
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 have used my best endeavours in attempting to bring…

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 Thatcher v Cessnock City Council

Details

AGLC: Thatcher v Cessnock City Council [2022] NSWPIC 37
Case: [2022] NSWPIC 37
Decision Date: 31 January 2022

CaseChat Overview and Summary

The case of Thatcher v Cessnock City Council involved a dispute regarding the costs of fitting digital binaural hearing aids for the applicant, Mr. Thatcher. The Cessnock City Council, as the respondent, was being asked to cover these costs under section 60 of the Workers Compensation Act 1987. Mr. Thatcher had suffered from work-related hearing loss and tinnitus, and the central issue in the case was whether the fitting of digital binaural hearing aids constituted reasonably necessary treatment for these conditions.

The court had to determine whether the digital binaural hearing aids were a reasonably necessary treatment for Mr. Thatcher's work-related hearing loss and tinnitus. This required an assessment of the nature and extent of his hearing impairment, the effectiveness of the hearing aids in mitigating the impact of his condition, and whether such aids were a standard form of treatment for similar conditions. The court also considered expert medical evidence and the prevailing standards of medical practice.

In its reasoning, the court concluded that the digital binaural hearing aids were indeed a reasonably necessary treatment for Mr. Thatcher's conditions. It found that the evidence demonstrated the aids were effective in addressing his hearing loss and tinnitus, and that they met the standard of care required for such injuries. Accordingly, the court ruled that the Cessnock City Council was liable to pay the costs associated with the fitting of the digital binaural hearing aids under the provisions of section 60 of the 1987 Act. The court's decision was grounded in the statutory framework and the specific circumstances of Mr. Thatcher's case.

As a result of the court's findings, the Cessnock City Council was ordered to pay the costs associated with the fitting of digital binaural hearing aids for Mr. Thatcher. This decision underscores the importance of providing appropriate treatment for work-related injuries, ensuring that workers receive the necessary support to manage their conditions effectively.

Orders