Hedges v Dr Dan White, Executive Director of Catholic Schools and Legal Representative for Sydney Catholic Schools [2017] NSWWCCPD 34

The decision of Hedges v Dr Dan White, Executive Director of Catholic Schools and Legal Representative for Sydney Catholic Schools [2017] NSWWCCPD 34, recently determined by Presidential Member Judge Keating, clarified the application of s 59A(3) of the Workers Compensation Act 1987 (NSW) (“the Act”). The worker was not entitled to compensation for the cost of her proposed medical treatment because she was found to be out of time.

Time limits

Section 59A operates to limit the time period in which insurers are required to pay for a worker’s medical expenses. The provision states that compensation of this nature is not payable to an injured worker after the expiration of their compensation period. The compensation period that applies will differ depending on the worker’s degree of impairment and the circumstances of their case.

WORKERS COMPENSATION ACT 1987 – SECT 59A 

59A Limit on payment of compensation

  1. Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided after the expiry of the compensation period in respect of the injured worker.
  2. The compensation period in respect of an injured worker is:
    1. if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be 10% or less, or the degree of permanent impairment has not been assessed as provided by that section, the period of 2 years commencing on:
      1. the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
      2. the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker), or
    2. if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be more than 10% but not more than 20%, the period of 5 years commencing on:
      1. the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
      2. the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker).
  3. If weekly payments of compensation become payable to a worker after compensation under this Division ceases to be payable to the worker, compensation under this Division is once again payable to the worker but only 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.
  4. For the avoidance of doubt, weekly payments of compensation are payable to a worker for the purposes of this section only while the worker satisfies the requirement of incapacity for work and all other requirements of Division 2 that the worker must satisfy in order to be entitled to weekly payments of compensation.
  5. This section does not apply to a worker with high needs (as defined in Division 2).
  6. This section does not apply to compensation in respect of any of the following kinds of medical or related treatment:
    1. he provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries),
    2. the modification of a worker’s home or vehicle,
    3. secondary surgery.
  7. Surgery is “secondary surgery” if:
    1. the surgery is directly consequential on earlier surgery and affects a part of the body affected by the earlier surgery, and
    2. the surgery is approved by the insurer within 2 years after the earlier surgery was approved (or is approved later than that pursuant to the determination of a dispute that arose within that 2 years).
  8. This section does not affect the requirements of section 60 (including, for example, the requirement for the prior approval of the insurer for secondary surgery).

Ms Hedges, was a teacher who suffered a traumatic injury to her ear which resulted in her developing a condition, known as tinnitus (a sensation of noise (such as a ringing or buzzing) that is caused by a bodily condition (e.g.  a disturbance of the auditory nerve or wax in the ear), and typically is of the subjective form, which can only be heard by the one affected).

She later claimed compensation for the cost of her medical treatment, which involved attending an Audiology clinic for a half day per month. As the worker’s degree of impairment had not been assessed, her entitlement to medical treatment expired 2 years from the date her claim was made, pursuant to section 59A(2)(a)(i), and the insurer therefore declined liability for her treatment.

A dispute then arose as to whether she could rely on section 59A(3) to re-enliven her entitlements. Section 59A(3) provides that if weekly payments of compensation become payable to a worker after their compensation period has expired, then compensation for medical treatment is payable during that period. The worker submitted that as she was required to attend treatment during her hours of employment, weekly benefits would therefore be payable and, as a result, the insurer was liable to pay for her medical treatment.

Arbitrator Rimmer, at first instance, found in favour of the employer. She determined that while an incapacity for work may arise as a result of further treatment, this would depend on the medical evidence (including certificates of incapacity being provided by a treating medical practitioner) and the circumstances of each case. The Arbitrator found that there was insufficient evidence, in this case, to prove that the worker would be required to attend the treatment during work hours, or that any incapacity would arise leading to any entitlement to weekly benefits being payable.  As a result, she determined that section 59A(3) did not operate to re-enliven the worker’s entitlement to medical treatment.

The decision highlights the arbitrary nature of the provision, in that the treatment itself was found to be reasonably necessary. The Arbitrator also noted that if the worker later experienced a period of incapacity and an entitlement to weekly benefits, then the insurer would be liable to pay for the cost of her treatment. The worker appealed the decision and it was upheld on appeal by President Keating.

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