Velovski v Bayside Council
[2021] NSWPIC 276
•4 August 2021
| DECISION OF PRESIDENT’S DELEGATE | |
CITATION: | Velovski v Bayside Council [2021] NSWPIC 276 |
| APPLICANT: | Peter Velovski |
| RESPONDENT: | Bayside Council |
| PRESIDENT’S DELEGATE: | Kathryn Camp |
| DATE OF DECISION: | 4 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for weekly compensation and past medical expenses as a result of a recurrence of an accepted white tail spider bite injury and its sequelae; consideration of when weekly entitlement periods commence; Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37 applied; Held- applicant experienced a re-emergence of symptoms in his left leg as a result of the accepted white tail spider bite injury and its sequelae, for which he had periods of no current work capacity and underwent medical treatment; award for the applicant for weekly compensation pursuant to sections 36 and 37 of the 1987 Act; award for the applicant for past medical expenses pursuant to section 60 of the 1987 Act |
| DIRECTIONS: | The President directs that: 1. The respondent is to pay the applicant weekly payments: (a) from 5 January 2021 to 26 January 2021 at $1,425 per week pursuant to s 36 of the Workers Compensation Act 1987; (b) from 27 January 2021 to 8 February 2021 at $1,200 per week pursuant to s 37 of the Workers Compensation Act 1987, and (c) from 9 May 2021 to 25 May 2021 at $1,232 per week pursuant to s 37 of the Workers Compensation Act 1987. 2. The respondent is to pay the applicant’s claimed past medical expenses for prescription medication, in the sum total of $43.50, pursuant to s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
INTRODUCTION
This matter concerns an application for weekly compensation for two closed periods and past medical expenses in respect of a 2021 recurrence of an accepted white tail spider bite injury in 2007. For the reasons discussed below, the applicant’s claim for compensation is successful.
BACKGROUND
On 23 May 2007, Peter Velovski, the applicant worker sustained a white tail spider bite in the course of his employment as a Regulations Inspector with Bayside Council (the respondent). The applicant was inspecting an abandoned van when he felt a bite at the bottom part of his left leg. He subsequently suffered fevers and swelling and pain in his left leg. He was diagnosed as suffering from cellulitis of the left leg as a result of the spider bite. He was treated with antibiotics.
On 26 January 2011, the applicant sustained an accepted aggravation to his original spider bite injury. The applicant sustained swelling to his left leg, ankle and foot, after having walked over eight kilometres as part of his work duties with the respondent. He was advised by his treating medical practitioner to wear compression stockings to prevent any ongoing symptoms.
The applicant was paid compensation in respect of the 2007 injury and 2011 aggravation, including a period of nine weeks weekly payments of compensation and treatment expenses.
On or about 3 January 2021, the applicant attended his son’s house for a New Year party. He stood and walked around a lot during the party. The following afternoon, the applicant noticed swelling in his left leg and began to suffer symptoms of a fever. He then attended his treating general practitioner, Dr Leslie Vago, for treatment. He subsequently made a claim for compensation.
On 20 January 2021, the respondent’s insurer, StateCover, issued a Notice of Decision pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to the applicant. StateCover stated that it had decided to dispute liability for the left ankle/left leg injury as it did not have sufficient evidence to confirm that the applicant’s recent diagnosis related to his employment with the respondent.
On 19 April 2021, the applicant’s solicitor wrote to StateCover seeking a review of the decision to dispute liability. The applicant sought to clarify that his claim was of a “recurrence” and not a “new injury”.
On 3 May 2021, StateCover, issued a Notice of Review Decision pursuant to s 287A of the 1998 Act to the applicant’s solicitor. StateCover maintained its decision to dispute liability. StateCover stated that the applicant’s solicitor, in the letter dated 19 April 2021, had clarified that the “claim is not made on the basis of a new injury but rather it represents an aggravation of a previous injury suffered on 23 May 2007”. On review of the matter, StateCover was not satisfied on the evidence that the compensation claimed resulted from the 2007 injury.
On 2 June 2021, the applicant lodged an Application for Expedited Assessment (Form 1) (Application) claiming weekly compensation for two closed periods and past medical expenses in the sum of $43.50 for prescription medication. The claim for weekly compensation is in respect of the period 5 January 2021 to 8 February 2021 and 9 May 2021 to 25 May 2021.
On 9 June 2021, the respondent lodged a Reply to the Application.
PROCEDURE BEFORE THE COMMISSION
On 16 June 2021, I convened a telephone conference to resolve the dispute. The applicant attended the telephone conference, with his solicitor Ms Keane of Monaco Solicitors. The insurer’s claims officer representative did not attend the telephone conference, in non-compliance with the Commission’s Procedural Direction PIC1 – Conduct of parties during proceedings.[1] However, the insurer’s legal representative Ms Malouf of Bartier Perry attended the telephone conference. The parties were unable to reach a resolution of the dispute and provided oral submissions during the telephone conference. The parties were informed of my intention to determine the dispute following the telephone conference.
[1] Procedural Direction PIC1 – Conduct of parties during proceedings, 1 March 2021, [33].
On 9 July 2021, I issued a direction seeking that the parties lodge and serve written submissions. Submissions were sought regarding the applicant’s date of birth, as the evidence revealed two different dates, and application of s 52 of the Workers Compensation Act 1987 (the 1987 Act).
On 15 July 2021, the applicant lodged and served a statutory declaration confirming his date of birth and submissions addressing the application of s 52 of the 1987 Act.
On 21 July 2021, the respondent lodged and served submissions in reply.
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 to bring the parties to the dispute to a settlement. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
ISSUES
The parties agreed during the telephone conference that the following issues remained in dispute:
(a) whether the applicant sustained a recurrence of the original 2007 injury;
(b) whether the applicant’s incapacity for the periods claimed was a result of the original 2007 injury;
(c) whether treatment claimed was reasonably necessary as a result of that injury, pursuant to s 60 of the 1987 Act, and
(d) whether s 59A of the 1987 Act has any bearing on the applicant’s entitlement to compensation, if any.
There was no dispute as to the applicant’s pre-injury average weekly earnings and the statutory cut off period for any entitlement to weekly compensation pursuant to s 52 of the 1987 Act. The latter was resolved by response to the Direction, namely the submissions lodged by the parties and the statutory declaration lodged by the applicant confirming his date of birth.
EVIDENCE
The following documents were in evidence before me and have been considered in determining this dispute:
(a) Application for Expedited Assessment, and attached documents;
(b) Reply, and attached documents, and
(c) supplementary submissions filed by the parties following the telephone conference.
Applicant’s statement
In evidence is a statement prepared by the applicant, dated 1 June 2021. Relevantly, it records that on 3 January 2021 the applicant visited his son’s house for a New Year party and gathering. At the party the applicant stood and walked around a lot during the party. In the afternoon of the following day, the applicant said that the “swelling got really bad” and he “began to feel a fever come on”.
The applicant stated that the swelling from the initial spider bite injury “never really goes away”. He stated that the laces on the shoe of his left foot are always slightly undone, due to swelling, when compared to the right foot. He added that he often experiences pins and needles when he takes steps with his left foot.
The applicant further stated that since the 2007 injury, he “continued to soldier on” and only “took days off when it became really painful or took workers compensation” if he could not work for extended periods of time.
In respect of the claimed recurrence, the applicant stated that he was certified unfit for work from 5 January 2021 to 8 February 2021 and was fine until the pain increased again in early May 2021, at which time he was certified unfit for any employment from 9 May 2021.
Medical evidence
Dr Sikander N Khan
In evidence is a report from Dr Sikander N Khan, consultant surgeon qualified by the respondent, dated 24 June 2011. In that report, Dr Kahn took a history of the May 2007 spider bite and the aggravation on 26 January 2011. Dr Khan provided his diagnosis and opinion:
“As a result of a work related spider bite to his left leg in May 2007, [the applicant] appears to have sustained cellulitis of his left leg, which was initially treated with antibiotics and local cortisone cream. He has subsequently had recurrent bouts of cellulitis, which have been treated conservatively with antibiotics and the use of compression stockings.
He has been left with a degree of residual incompetence of lymphatic drainage in his left leg as a consequence of this injury, making the left leg susceptible to recurrent bouts of lymphoedema and cellulitis.
As a result of the recent work incident of 26 January 2011 when he had to walk for a prolonged distance during the course of his work as a regulation inspector, he appears to have sustained aggravation of his pre-existing condition, causing a recurrent bout of lymphoedema, which gradually settled down on conservative management.
Based on my examination, he appears to have recovered from his recent aggravation of the left leg in the form of recurrent lymphoedema.
Examination carried out today reveals a mild degree of lymphoedema in the left leg below the knee, consistent with his pre-existing condition that has resulted from the previous injury of May 2007.”
In evidence is a supplementary report from Dr Khan, dated 3 September 2012. In that report, Dr Khan notes that he reviewed the applicant on 9 June 2011 after he sustained an aggravation of his spider bite in May 2007. In response to a question about why the applicant still experiences ongoing swelling, Dr Khan responded:
“The reason behind the recurrent swelling of the leg is the chronic incompetence of lymphatic drainage system affecting his left leg. This has developed as a consequence of the original spider bite of May 2007 which had resulted in cellulitis and subsequent development of this incompetence in lymphatic drainage in the left leg.”
In response to a question about whether the ongoing swelling will settle with time, Dr Khan responded:
“I do not believe that these episodes of recurrent swelling of the left leg will settle with time. This condition is permanent and will cause periodic swelling of the left leg from time to time which will require treatment with rest, evaluation, and compression stocking.”
In response to a question as to whether the ongoing swelling is the result of the spider bite, Dr Khan responded:
“It is my opinion that the ongoing recurrent swelling in the left leg is as a result of the spider bite and its sequelae.”
In response to a question as to whether he had any further recommendations to assist in progressing the claim towards recovery, Dr Khan responded:
“It is my opinion that his condition has stabilised and become static. He is likely to experience intermittent swelling of the left leg whenever he is involved in prolonged standing or walking activities which could be dealt with by period of rest and elevation of the leg. These episodes could be prevented and recurrences could be made less frequent if he continues to wear compression stockings and avoids the prolonged standing or walking type activities.”
Medical certificates
In evidence are several SIRA certificates of capacity/certificate of fitness issued by the applicant’s treating general practitioner, Dr Leslie Vago. Relevantly, the certificates indicate that the applicant had no current work capacity from 5 January 2021 to 8 February 2021, capacity for some type of work 8 hours 4.5 days per week from 23 February 2021 to 8 May 2021, and no current work capacity from 9 May 2021 to 5 June 2021.
The medical certificates have common recorded information. In all of the certificates, the date of injury is recorded as 5 January 2021. However, in the certificates on and from of 22 March 2021, it is noted that the date of injury is “5/01/2021 (ORIGINAL INJURY SUSTAINED 23/5/2007)”. Also, in all of the certificates, the diagnosis is detailed as a recurrence of left leg white tail spider bite injury (26/01/2011) – cellulitis. Further, the description of how the injury occurred is noted as follows: “[h]e was bitten during work as a ranger at Rockdale City Council by white tail spider on 26/01/2011 originally. He suffered a flareup of severe cellulitis in left lower leg in the region of spider bite.” The certificates also record “antibiotics” or “[f]inished antibiotics” under the heading “Management plan for this period – Treatment/medication type and duration”.
For the period of no current work capacity from 9 May 2021 to 5 June 2021, the medical certificates consistently record factors affecting recovery. Those factors recorded are fever and swelling of left leg.
Medication receipts
In evidence is a tax invoice pharmacy receipt, dated 5 January 2021, which records that Staphylex Cap 500mg was dispensed as prescribed by Dr Vago. The amount paid recorded on the receipt is $18.50.
In evidence are two further tax invoice pharmacy receipts, from a different pharmacy, dated 19 January 2021 and 28 January 2021, which records that Staphylex Cap 500mg was dispensed as prescribed by Dr Vago. The amount paid recorded on each receipt is $12.50.
SUBMISSIONS AND DISCUSSION
Whether the applicant sustained a recurrence of the original 2007 injury
Applicant’s submissions
The applicant submitted that he sustained a recurrence of the original injury. The reference to “flare up” in the treating general practitioner work capacity certificates “means recurrence”.
The applicant conceded that the work capacity certificates refer to the injury as having occurred in 2011, but that this is an error and should be a reference to the 2007 injury spider bite. The work capacity certificate dated 22 March 2021 clarifies this issue.
The applicant’s recent flare up is a recurrence of the 2007 injury and there is no evidence to suggest otherwise.
The applicant submitted that that he was on annual leave during the period claimed is not a relevant issue.
Respondent’s submissions
The original injury occurred in May 2007. The applicant returned to work and recovered. The applicant then suffered an aggravation in 2011, following which he returned to work. In the last 10 years the applicant has had no issues with the legs, until he presented in January 2021 with symptoms when he was not at work.
The respondent submitted that the only evidence is the medical certificates issued by the treating general practitioner, which do not provide a detailed history or explain how the current injury is linked to the 2007 injury. There is no report regarding what condition causes symptoms including shivers and fevers. On the balance of probabilities, the respondent submitted that the Commission cannot be satisfied that the recent episode in January 2021 is a recurrence of the 2007 injury.
Discussion
It is not disputed that the applicant sustained swelling of the left leg and cellulitis following a spider bite in 2007, in the course of employment. That accepted injury was then aggravated in 2011 in the course of the applicant’s employment, after the applicant was required to walk eight kilometres as part of his role with the respondent.
The applicant’s current evidence is that following the 2007 spider bite he had intermittent swelling of the left leg which he treated by elevating his leg and using a compression stocking. It was not until early 2021 that the applicant experienced symptoms again in his left leg requiring leave from work, from 5 January 2021 until 8 February 2021. The applicant stated that he was “fine for a few months but the pain increased again in early May” and he was certified unfit for any employment from 9 May 2021.
The medical certificates of capacity issued by Dr Vago are consistent with the applicant’s statement evidence. The certificates consistently indicate that the applicant was diagnosed with a recurrence of the left leg white tail spider bite injury – cellulitis, for which he was treated with “antibiotics”. The certificates also consistently explain that the applicant’s condition was linked to the original spider bite. The certificates further indicate that the applicant “suffered a flareup of severe cellulitis in the left lower leg in the region of the spider bite”. I infer that the reference to “flareup” means “recurrence”, having regard to the reference to those terms in the certificates issued by Dr Vago.
That the certificates repeatedly record that the original spider bite injury occurred on 26 January 2011 (and not 23 May 2007) and during his work as a ranger on that day, is not fatal to the acceptance of that evidence as demonstrative of the claimed recurrence. That is because, firstly, it is not disputed that the applicant sustained a white tail spider bite in 2007 in the course of his employment as a ranger. Secondly, it is not disputed that the applicant did not sustain a spider bite on 26 January 2011. Thirdly, it is accepted that on 26 January 2011 the applicant sustained an aggravation of the accepted 2007 injury for which compensation was claimed and paid. Fourthly, Dr Vago seeks to correct the date error in the certificates issued from the certificate dated 22 March 2021 onwards, where he records the date of injury being 5 January 2021 but adds “(ORIGINAL INJURY SUSTAINED 23/5/2007).” Lastly, certificates of capacity, like clinical notes, are written in the course of a busy practice where the practitioner’s primary role is to observe and administer treatment. They should not be construed with the “minute attention one might give a formal legal document” or an eye attuned for error.[2]
[2] Nominal Defendant v Clancy [2007] NSWCA 349, [54]-[55] (per Santow JA).
The applicant’s statement evidence and Dr Vago’s certificates of capacity must be considered in view of Dr Khan’s evidence. The only expert medical evidence lodged in these proceedings is from the insurer’s independent medical expert, Dr Khan. While that evidence was prepared in 2011 and is not contemporaneous, it provides clear evidence that the applicant would experience recurrent symptoms in his left leg. Dr Khan provides cogent reasoning that the recurrent swelling of the left leg is due to the “chronic incompetence of lymphatic drainage system” and cellulitis which has developed as a consequence of the 2007 spider bite. Indeed, in his supplementary report, Dr Kahn explains that the applicant’s condition is “permanent and will cause periodic welling of the left leg from time to time”. He added that it was his view that the applicant “is likely to experience intermittent swelling of the left leg whenever he is involved in prolonged standing or walking activities”. There is no evidence to the contrary.
That the worker was not working on the date of recurrence is not to the point. This submission is founded on a misunderstanding of the applicant’s claim. The applicant does not claim an aggravation of the 2007 injury, as the insurer’s Notice of Review Decision describes, nor does he claim a new injury. The applicant claims a recurrence of the accepted 2007 spider bite injury. A recurrence occurs in situations where a worker experiences an increase in symptoms or a re-emergence of symptoms after suffering a work-related injury.[3] The increase in symptoms or re-emergence of symptoms may or may not occur in the course of work. What needs to be established in the case of a recurrence is that there is no break in the chain of causation, from the accepted injury to the episode of recurrence.[4] That is, in the present case, there is a causal chain of causation between the 2007 injury and the 2021 recurrence.
[3] State Insurance Regulatory Authority Standards of Practice, issued 21 October 2019.
[4] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
I accept that the only contemporaneous evidence is the medical certificates, which do not provide a detailed clinical history or explain how the current injury is linked to the 2007 injury. However, the evidence supports the existence of a re-emergence in 2021 of the same symptoms which occurred in 2007 as a result of the spider bite. Indeed, the medical evidence demonstrates that the applicant was at risk of suffering recurring swelling or cellulitis of the left leg as a result of the accepted injury in 2007. Dr Kahn provides compelling evidence that indicates the original injury sustained in 2007 would result in recurrent symptoms over time. Dr Kahn also explained that these symptoms would reoccur whenever the applicant is involved in prolonged standing or walking activities. Having regard to Dr Khan’s evidence, it was entirely foreseeable that the applicant would suffer the same symptoms in his left leg as he experienced in the past as a result of the spider bite. The applicant’s uncontradicted evidence and Dr Vago’s medical certificates demonstrate that the symptoms, namely, swelling and cellulitis of the left leg, which Dr Kahan described would reoccur over time, recurred in January 2021 and May 2021. That evidence also demonstrates that those symptoms arose following a period of prolonged standing and walking at a New Year party in 2021, the exact circumstances which Dr Kahn foreshadowed would result in a recurrence of symptoms in the left leg. Further, the evidence demonstrates that the symptoms in the left leg which the applicant experienced in 2021 was as a result of the original spider bite and that those symptoms caused a period of incapacity and need for antibiotic treatment.
That there has been a passage of time between the 2007 spider bite and the 2021 recurrence is not determinative of the applicant’s entitlement to compensation.[5] The medical certificates and the applicant’s statement evidence, when read with Dr Kahn’s evidence, indicate that the 2007 injury never settled. It also indicates that the applicant was prone to developing ongoing symptoms due to the chronic incompetence of his lymphatic drainage system, which he experienced in January 2021 and May 2021. Indeed, the respondent has not established that there has been a supervening event to break the chain of causation or that the effects of the accepted 2007 injury ceased.
[5] Kooragang, 463G.
Having regard to the available evidence, on the balance of probabilities, I find that the 2021 claimed recurrence is causally related to the accepted 2007 injury. To this end, I accept the applicant sustained a recurrence of the original 2007 spider bite injury in 2021.
Whether the applicant’s incapacity for the periods claimed was a result of the 2007 injury
Applicant’s submissions
The applicant submitted that the only evidence is the medical certificates which indicate that the applicant is unfit for the periods in dispute.
The applicant conceded that he reached the statutory retirement age on 25 May 2021, and therefore any entitlement to weekly compensation would cease on that date.
The applicant further submitted he was paid weekly payments of compensation for a period of nine weeks prior to the 2012 legislative amendments. However, the applicant submitted that under the amending legislation he was entitled to weekly payments of compensation under s 36 of the 1987 Act, as if he was not previously compensated. The applicant relied on cl 3 of Sch 8 to the Workers Compensation Regulation 2016 (2016 Regulation).
Respondent’s submissions
The respondent accepted that there were medical certificates that indicated that the applicant was not fit for the period claimed. It conceded that if a finding of injury was made the applicant would be entitled to weekly payments of compensation. However, the respondent submitted that as the applicant had been paid nine weeks of weekly compensation he would only be entitled to a further three weeks pursuant to s 36 of the 1987 Act, and thereafter his entitlement would fall under s 37 of the 1987 Act.
Discussion
The medical certificates demonstrate that the applicant had no current work capacity for the periods 5 January 2021 to 26 January 2021 and 9 May 2021 to 5 June 2021. Those certificates demonstrate that the applicant had no current work capacity for reason of the recurrence of the original 2007 spider bite injury. It follows that as I have found a recurrence injury, as the respondent concedes, the applicant is entitled to weekly payments of compensation claimed.
It is not disputed that the applicant’s statutory entitlement to weekly compensation ceased on 25 May 2021, for the purposes of s 52 of the 1987 Act. However, the parties dispute when the weekly entitlement periods commence. Neither party provided any analysis of the relevant law or case authority to support their respective position as to when the weekly entitlement periods would commence, should a finding be made that the applicant was entitled to weekly payments of compensation. For the reasons that follow, I do not accept the applicant’s submissions that cl 3 of Sch 8 to the 2016 Regulation provides that he would fall only within the first entitlement period for the weekly payments claimed. In other words, I do not accept that the period of nine weeks of weekly payments of compensation paid prior to the commencement of the 2012 workers compensation weekly payments amendments may be ignored for the purposes of determining when the weekly entitlement periods commence.
Previous payments of weekly compensation must be taken into account in determining the date from which the entitlement periods commence.[6] This was made clear by the decision in Kilic v Kmart Australia Ltd[7], where Deputy President Roche explained the application of cl 3 of Sch 8 to the 2016 Regulation to the worker’s entitlement to weekly payments of compensation in that matter. Deputy President Roche explained that the “…entitlement periods commence at the time when a weekly compensation has been paid or is payable and includes periods before the commencement of the amendments…”.[8]
[6] Mahal v The State of New South Wales (No 3) [2018] NSWWCCPD 30, [28]; Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 (Jaffarie No 2), [31]-[39] (per Leeming JA (Macfarlan and White JJA agreeing); Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37 (Kilic), [9].
[7] Kilic, [50]-[53].
[8] Kilic, [53].
The Court of Appeal in Jaffarie v Quality Castings Pty Ltd[9] (Jaffarie No 2) rejected an argument that the decision in Kilic was wrongly decided. It is also instructive to note that Leeming JA, in Jaffarie No 2, held that the following reasons of then Acting President Snell in Jaffarie v Quality Castings Pty Limited[10] were “entirely correct”[11]:
“[166] The Senior Arbitrator, at [29] of the reconsideration decision, said she did not accept that Sabanayagam had ‘any application to Mr Jaffarie’s case’. This is clearly true. Having regard to the date of the appellant’s injury and claim, the fact that he was not ‘an existing recipient’, and the transitional provisions, his rights to weekly compensation were correctly determined pursuant to the provisions of the 1987 Act, in its form prior to relevant commencement of the 2012 Amending Act, up to 31 December 2012: Kilic. Thereafter, any weekly entitlement would have fallen within the third entitlement period (beyond 130 weeks). The Commission lacked jurisdiction to award him weekly compensation in the third entitlement period: Lee at [57].
[167] In very general terms, Sabanayagam does not deal with workers in the position of the appellant. It deals with entitlements governed by the ‘weekly payments amendments’ in the 2012 Amending Act, the distinction between ‘work capacity decisions’ and notices disputing liability pursuant to s 74 of the 1998 Act, and the associated jurisdiction of the Commission. There was no error on the Senior Arbitrator’s part, in her conclusion about the relevance of Sabanayagam to the appellant’s weekly entitlement.”[12]
[9] Jaffarie No 2.
[10] [2017] NSWWCCPD 2 (Jaffarie No 1).
[11] Jaffarie No 2, [38] citing Jaffarie No 1 (per Leeming JA (Macfarlan and White JJA agreeing).
[12] Jaffarie v Quality Castings Pty Limited [2017] NSWWCCPD 2, [166]-[167] (per Snell AP), cited with approval in Jaffarie No 2, [38] (per Leeming JA (Macfarlan and White JJA agreeing).
I am bound by the decisions referred to immediately above. Having regard to the above, in the circumstances of the present matter, any weekly compensation paid prior to 31 December 2012 must be taken into account when determining when entitlement periods commence to run. It follows, as the applicant has been paid nine weeks of compensation in respect of the injury, his entitlement to weekly payments for the periods claimed fall between the first and second entitlement period of the 1987 Act.
Accordingly, there will be an award of weekly payments of compensation to the applicant as follows:
(a) from 5 January 2021 to 26 January 2021 at $1,425 per week pursuant to s 36 of the 1987 Act;
(b) from 27 January 2021 to 8 February 2021 at $1,200 per week pursuant to s 37 of the 1987 Act, and
(c) from 9 May 2021 to 25 May 2021 at $1,232 per week pursuant to s 37 of the 1987 Act.
Whether treatment claimed was reasonably necessary as a result of that injury
Applicant’s submissions
The applicant submitted that it was clear from the medical evidence that the recent flare up related to the original 2007 injury. In accordance with SIRA’s compensation practice standards, liability in these circumstances should be accepted. There is no evidence to the contrary that another injury caused the recurrence. It is not open for any other determination to be made.
Respondent’s submissions
The respondent submitted that the Commission cannot be satisfied on the balance of probabilities that the need for treatment was reasonably necessary. There is no report from the general practitioner why the medication taken was prescribed and why it was reasonably necessary. On this basis, the respondent submitted that s 60 of the 1987 Act cannot be made out.
Discussion
The applicant claims past medical expenses for prescription medication, in the sum total of $43.50, pursuant to s 60 of the 1987 Act. Section 60 of the 1987 Act requires two questions to be answered in the affirmative. Firstly, whether the condition that is said to give rise to the need for the treatment has arisen “as a result of” the injury. Secondly, whether the treatment is “reasonably necessary”. These are questions of fact which involve matters of impression and degree, having regard to the available evidence.[13]
[13] Kooragang; Diab v NRMA Ltd [2014] NSWWCCPD 72.
It is well established that an applicant bears the onus of proof, on the balance of probabilities.[14] It is also well established that the applicant need not establish satisfaction of that onus to a level of medical or scientific certainty.[15]
[14] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)).
[15] March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506, 509 (per Mason CJ); Seltsam Pty Ltd v McGuiness [2000] 49 NSWLR 262, [93]-[94] (per Spigelman CJ); Secretary, Department of Family and Community Services v Victoire [2014] NSWWCCPD 44, [60]; Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153, [39] (per Giles JA (Beazley JA agreeing); [138] (per Ipp JA (Beazley JA and Giles JJA agreeing)).
The evidence identifies the prescription medication claimed is Staphylex capsules 500mg. It is not disputed that Staphylex is an antibiotic medication. The evidence also identifies that the prescription medication is prescribed by Dr Vago, the applicant’s treating general practitioner. It further identifies that the applicant dispensed his prescription for the medication on 5 January 2021, 19 January 2021 and 28 January 2021, which covers the period for which the applicant has been found to have no current work capacity as a result of injury and for which the applicant has been found to have an entitlement to weekly payments of compensation.
The evidence demonstrates that the applicant has been treated with antibiotics for symptoms arising from his 2007 spider bite. Dr Kahn, in his report dated 24 June 2011, recorded that the applicant was initially treated with antibiotics after he sustained cellulitis of his left leg in May 2007 after a spider bite and again treated with antibiotics following recurrent bouts of cellulitis. Dr Vago, recorded “antibiotics” or “[f]inished antibiotics” under the heading “Management plan for this period – Treatment/medication type and duration” in the applicant’s certificates of capacity in respect of treatment for a “flareup of severe cellulitis in the left lower leg”. Indeed, as mentioned above, the applicant purchased the antibiotic medication during the periods he was certified as having no current capacity for work as a result of the recurrence injury.
The evidence demonstrates that the applicant incurred the claimed medical expenses for antibiotic treatment (Staphylex) as a result of recurrent cellulitis in the left leg which, for the reasons discussed above, was a result of the 2007 spider bite injury and its sequelae. In other words, I am satisfied that the 2007 injury caused or materially contributed to the applicant’s need for medical treatment in the nature of Staphylex.
I accept that the applicant’s evidence does not directly address whether the medical expenses claimed were reasonably necessary as a result of injury. However, I do not consider this to be fatal to the applicant’s claim. The Commission may draw inferences from facts that an ordinary tribunal may not by virtue of being a specialist tribunal with specialist knowledge and experience.[16] Such inferences may only be drawn from acceptable evidence and cannot be used to create evidence.[17] I infer from the evidence that the antibiotic treatment, which is consistent with the treatment administered in 2007 for the same symptoms from the same injury, was reasonably necessary to treat the recurrence of symptoms in the left leg. There is no evidence to suggest otherwise.
[16] MMI Workers Compensation (NSW) v Kennedy [1993] NSWCC 26; ICI Australia Operations Pty Ltd v WorkCover Authority of New South Wales [2004] NSWCA 55.
[17] Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; Conargo Shire Council v Quor [2007] NSWWCCPD 245.
For the above reasons, on the balance of probabilities, I am satisfied that the claim for past medical expenses in the nature of prescription medication was a result of the accepted 2007 injury and was reasonably necessary within the meaning of s 60 of the 1987 Act.
Whether s 59A of the 1987 Act has any bearing on the applicant’s entitlement to compensation
Applicant’s submissions
The applicant submitted that in the event weekly compensation is paid or becomes payable, he would be entitled to reasonably necessary medical expenses for a period of two years. The medical certificates issued by the general practitioner indicate that the treatment for the condition is antibiotic, and Saphlax is an antibiotic. While there is no specific record or report from the general practitioner that Saphlax was reasonably necessary as a result of the flare up, an inference may be drawn that it was on the basis that Saphlax is an antibiotic and invoices for that medication were incurred at a time when the applicant was incapacitated for the recurrence.
Respondent’s submissions
The respondent conceded that if the applicant has an entitlement to weekly compensation for the period claimed then medical expenses may be awarded, subject to satisfying the test under s 60 of the 1987 Act.
Discussion
Section 59A provides that compensation is not payable to an injured worker in respect of any treatment, service or assistance given or provided after the expiry of the compensation period in respect of the injured worker. However, if weekly payments of compensation become payable to a worker after compensation under Div 2 of Pt 3 of the 1987 Act ceases to be payable, compensation is once again payable in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.
The power to order the payment of compensation for the cost of medical expenses claimed, depends on whether, at the relevant time (that is, in 2021 when the treatment expenses were incurred), weekly compensation had been “paid” or was “payable” to the applicant in accordance with s 59A of the 1987 Act. As weekly payments of compensation have become payable during the relevant period, for the reasons set out above, the applicant’s entitlement to compensation for past medical expenses is not prohibited by s 59A.
CONCLUSION
For the reasons set out above, the applicant’s application is successful. I find that:
(a) The respondent is to pay the applicant weekly payments:
(i)from 5 January 2021 to 26 January 2021 at $1,425 per week pursuant to s 36 of the 1987 Act;
(ii)from 27 January 2021 to 8 February 2021 at $1,200 per week pursuant to s 37 of the 1987 Act, and
(iii)from 9 May 2021 to 25 May 2021 at $1,232 per week pursuant to s 37 of the 1987 Act.
(b) The respondent is to pay the applicant’s claimed past medical expenses for prescription medication, in the sum total of $43.50, pursuant to s 60 of the 1987 Act.
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