Watson v State of South Australia (Department of Premier and Cabinet)
[2015] SAET 4
SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL (SA)
WATSON, Brendan
v
THE STATE OF SOUTH AUSTRALIA (DEPARTMENT OF PREMIER
AND CABINET)
JURISDICTION: Application to set aside an order under s 110 of SAET Act
FILE NO: 7069 of 2015
HEARING DATE: 21 October 2015
JUDGMENT OF: Deputy President M Calligeros
DELIVERED ON: 27 November 2015
CATCHWORDS:
Claim for the cost of a medical report sought by a worker, but not relied upon
- Held: The report is a medical service - The worker was entitled to seek the
report. Not relying on the report was not unreasonable in the context of
legislative change and the potential loss of rights and entitlements - Return to
Work Act 2014.
Pasminco Metals BHAS Pty Ltd v Hadjiargiris A165/1995
Harris v Pasminco Metals BHAS Pty Ltd A40/1996
Raymond Sydney Hillier v Workcover Corporation (Festival State Security)
[1997] SAWCT 4
Metro Meat Ltd v Banjanovic (1989) 52 SASR 102
Hiern v Department of Employment, Training and Further Education [2003]
SAWCT 96
REPRESENTATION:
Counsel:
Applicant:
Respondent:
Solicitors:
Applicant:
Respondent:
Ms K Chambers
Mr R Preston
KC Lawyers
Department for Premier and Cabinet
Watson v State of South Australia
(Department of Premier and Cabinet)
[2015] SAET 4
2
Calligeros DP
1
This matter concerns whether the cost of a medical report obtained on
behalf of a worker, which was not relied upon to seek any compensation,
is an expense which has been “reasonably incurred” within the meaning
of s 33 of the RTW Act 1. The compensating authority contends that
because the report was neither released to it nor relied on prior to 1 July
2015, and cannot now be relied on, the cost was not reasonably incurred.
2
It is likely this issue will arise again in the context of recent legislative
change, so it is worth setting out both the context of the matter and the
law which concerns it in some detail.
Background
3
Mr Watson is a 53 year old vehicle inspector employed by Department
of Planning, Transport and Infrastructure at Regency Park. He has an
accepted claim for injuries to both his upper limbs as a result of a fall he
had at work in July 2012.While he has continued to work since the fall,
his hours of work and the range of duties he can perform are reduced.
4
In the lead up to the commencement of the RTW Act on 1 July 2015,
many assessments and determinations of whole person impairment
(WPI) under s 43 of the repealed Act 2 were sought. This was in part
because the move from the repealed Act to the RTW Act had serious
consequences for lump sum entitlements. For example, s 58(9) of the
RTW Act only permits one claim for permanent impairment to be made
in relation to injuries which arise from the same trauma. Under the
repealed Act, there was no limit to the number of WPI assessments a
worker could seek in respect of injuries arising from the same trauma.
5
Mr Watson’s solicitor obtained a report dated 22 June 2015 from
Dr David Cullum, consultant occupational physician. Dr Cullum was
asked to assess Mr Watson’s permanent impairment and assessed him as
having a 27% WPI under AMA5 3 as a result of the injuries he sustained
in the fall of July 2012.
6
Mr Watson’s solicitor forwarded a copy of Dr Cullum’s report of
22 June 2015 to the respondent (DPC) under cover of letter dated 27 July
2015. The letter asked that Dr Cullum’s account of $1,738.40 for the
consultation and report be paid within fourteen days.
7
By letter dated 3 August 2015, the respondent wrote to Mr Watson’s
solicitor advising that the assessment made by Dr Cullum became
‘redundant’ on 1 July 2015 due to the commencement of the RTW Act.
1
Return to Work Act 2014.
Workers Rehabilitation and Compensation Act 1986.
3
Guides to the Evaluation of Permanent Impairment of the American Medical Association,
5th Edition.
2
Watson v State of South Australia
(Department of Premier and Cabinet)
[2015] SAET 4
3
Calligeros DP
This was because from that date, all permanent impairment assessments
had to be made under the RTW Act Scheme Impairment Assessment
Guidelines (SIA Guidelines), not under the impairment assessment
guidelines which applied to the repealed Act. As a result, DPC submits
that the cost of the consultation and report was not reasonably incurred.
8
In response to the letter of 3 August 2015, on 5 August 2015, Mr Watson
sought review of the decision. On 13 August 2015, DPC confirmed its
decision to not meet the cost of the consultation and report.
9
The dispute was not resolved by conciliation, and when the parties
attended a prehearing conference under s 45 of the SAET Act 4 on
21 October 2015, I ordered that the matter be dealt with as a summary
matter under rule 95 of the SAET Rules. 5
10
Each party made submissions in relation to the dispute at the pre-hearing
conference. Any written submissions or contentions either party wished
to make were to be filed and served by 30 October 2015. No written
submissions have been filed. This is not surprising as the respondent has
already set its case out clearly in writing and oral submissions were made
on behalf of the applicant on 21 October 2015.
Submissions
11
Ms Chambers for Mr Watson submitted that if the assessment made by
Dr Cullum had indicated a 30% WPI or greater, the report would have
been acted on by Mr Watson, and DPC would have been asked to make a
determination in line with it. Ms Chambers also said that if the
assessment was well below 30% WPI, DPC would also have been asked
to make a determination.
12
Ms Chambers also put that the reason DPC was not asked to determine
Mr Watson’s WPI prior to 1 July 2015, and still has not been asked to do
so, is because Dr Cullum’s assessment was very close to the 30% WPI
rating that would entitle Mr Watson to be treated as a seriously injured
worker pursuant to s 21(2) of the RTW Act. Should Mr Watson qualify
as a seriously injured worker, he will receive benefits under the RTW
Act for much longer than he otherwise would. 6
13
Ms Chambers advised that in addition to Dr Cullum’s impairment
assessments for each upper limb, the thoracic spine and scarring, there is
the potential for another WPI assessment to be made on account of
bruxism. Further, Mr Watson has been diagnosed as suffering from
4
South Australian Employment Tribunal Act 2014.
South Australian Employment Tribunal Rules 2015.
6
Weekly payments until age 65 instead of two years, and medical expenses for life instead of three
years.
5
Watson v State of South Australia
(Department of Premier and Cabinet)
[2015] SAET 4
4
Calligeros DP
myasthernia gravis, an autoimmune disease. Although he does not yet
assert this disease is a compensable condition, he may do so.
14
Ms Chambers also submitted that the test of reasonableness under s 33 is
to be applied at the time the expense is incurred, not when the expense is
claimed for.
15
Mr Preston for DPC asserted that the assessment made by Dr Cullum
became redundant on 1 July 2015 and said that Mr Watson’s solicitor
would have been aware of that fact. 7
16
Mr Preston also asserted that representatives of workers would or should
have known from March 2015 when the new SIA Guidelines were
promulgated, that any WPI assessment obtained prior to 1 July 2015
would no longer be able to be relied upon after that date.
17
Mr Preston submitted that the test of reasonableness under s 33 is not
confined to the time that the report is obtained but that I can and should
have regard to the actions taken in relation to the report after it was
obtained. In that regard, it was said that the failure to provide a copy of
the report to the respondent within time to make use of it means it is a
cost which was not reasonably incurred. 8
Consideration
18
Based on advice, Mr Watson did not wish to prejudice his prospects of
being found to be a seriously injured worker by having a determination
based on Dr Cullum’s report of 22 June 2015. Prejudice would have
arisen if he had asked for a determination to be made prior to 1 July 2015
based on that report because of cl 44 of Sch 9 of the RTW Act which
provides:
“44—Permanent impairment assessment
A person whose entitlement for non-economic loss has been
determined under Part 4 Division 5 of the repealed Act in respect of
an existing injury is not entitled to an assessment under Part 2
Division 5 of this Act in relation to the same injury (or any other
injury arising from the same trauma).”
19
7
8
If Mr Watson had received a determination based on a 27% WPI prior to
1 July 2015, cl 44 arguably operates to prevent him being able to rely on
any further WPI assessment which might subsequently be made, even if
it was for bruxism or myasthernia gravis, and took his WPI for injuries
arising from the July 2012 fall to more than 30%.
Letter from respondent to KC Lawyers dated 3 August 2015.
Respondent’s Statement of Issues - 14 October 2015.
Watson v State of South Australia
(Department of Premier and Cabinet)
[2015] SAET 4
5
Calligeros DP
“Medical services”
20
The definition of “medical services” in s 4 of the RTW Act is largely
identical to the definition of the same term in s 3 of the repealed Act.
Part (c) of the RTW Act definition adds a further category of medical
services, but part (c) of the definition is not relevant to this matter. Parts
(a) and (b) of the definition of “medical services” are relevant, and define
medical services under both the RTW Act and the repealed Act as
follows:
“medical services means—
(a) attendance, examination or treatment by a health practitioner
(including the obtaining of a certificate or report); or
(b) any diagnostic examination or test required for the purposes of
treatment by a health practitioner; or …”
21
The only substantive difference between s 32(2) of the repealed Act and
s 33(2) of the RTW Act is that the latter has additional sub-sections
which provide for the pre-approval of medical services. Section 33(2)(a)
of the RTW Act and s 32(2)(a) of the repealed Act both allow a worker
to be reimbursed for the cost of medical services.
22
There are two differing lines of authority under the repealed Act in
relation to whether a medico-legal report is a ‘medical service’.
23
In Pasminco Metals BHAS Pty Ltd v Hadjiargiris 9 Thompson DP held
that a medico-legal report was not a s 32 medical service:
“In my view the terms ‘attendance, examination or treatment by
medical expert’ are confined on their natural meaning to a medical
expert who is actually treating the worker. It does not extend to
medical-legal reports. The certificate or report envisaged is that
certificate or report that a treating doctor might supply. The issue of
who pays for the medical-legal reports is not dealt with under
section 32 but under section 92A in the subject of costs.”
24
In Harris v Pasminco Metals BHAS Pty Ltd 10, McCusker DPJ agreed
with that view:
“Apart from that, I am in agreement with the view that section 32 is
not concerned with the costs of medical reports obtained to make
out a case (c.f. Pasminco v. Hadjiargiris). That is the subject of
section 92A. Section 32 and the definition in section 3 of medical
services where it deals with ‘the obtaining of’ a ‘certificate or
9
A.165/1995
A.40/1996
10
Watson v State of South Australia
(Department of Premier and Cabinet)
[2015] SAET 4
6
Calligeros DP
report’ is confined to such obtaining as is concomitant to the
treatment of the injury or disease.” 11
25
In Raymond Sydney Hillier v Workcover Corporation (Festival State
Security 12 a Full Bench of the Tribunal dealt with a medical report that
was obtained for medico-legal purposes rather than for the purpose of, or
in connection with, treatment. The Full Bench did not follow Harris and
Hadjiagiris and held that a medical report was a medical service under
s 32 of the repealed Act.
26
The Full Bench in Hillier was influenced by the inability of workers to
recover the cost of medical report fees in matters like this one unless the
expense was found to be a medical service under s 32 of the repealed
Act. It was said that an inability to recover report fees may have led to:
“a proliferation of disputes to enable workers to obtain medical
evidence under the umbrella of proceedings so that the cost of
obtaining that evidence can be recovered under section 95.” 13
27
Parliament appears to have relied and acted upon Hillier.
Regulation 29(5) of the Workers Rehabilitation and Compensation
Regulations 2010, the regulations which operated until the start of the
RTW Act, makes specific reference to “costs for medical services
reimbursed as disbursements in the dispute resolution process.” It is
likely reg 29(5) was made with reference to and in reliance upon Hillier.
28
Likewise, reg 44(4) of the RTW Regulations 2015 provides:
“(4) For the purposes of section 106(2)(b) of the Act, costs may be
awarded to reimburse disbursements incurred by a party to
proceedings before the Tribunal up to a reasonable amount
reasonably incurred, subject to the qualification that costs for
medical services reimbursed as disbursements in the proceedings
are limited to the scales of charges that apply for the purposes of
section 33 of the Act or, if a service is not covered by a scale of
charges under that section, to an amount determined in accordance
with the principles that apply under that section.” (underlining
added)
29
11
Again, this likely indicates that Parliament relied upon Hillier in framing
reg 44(4) of the RTW Regulations, just as it had previously done in
reg 29(5) of the WRC Regulations 2010. It follows, and I find, that
Parliament intended that medico-legal report fees fall to be treated as
medical services under the RTW Act.
Supra at p 9.
[1997] SAWCT 4.
13
Supra.
12
Watson v State of South Australia
(Department of Premier and Cabinet)
[2015] SAET 4
7
Calligeros DP
30
Although none of the earlier decisions referred to above are binding upon
this decision as they concern a different Act and were from a different
tribunal, there are very good reasons to apply and follow Hillier. Hillier
is a Full Bench decision which Parliament appears to have relied upon in
drafting regulations for the repealed Act and the RTW Act. I say that
despite the logic of Hadjiargiris and Harris being compelling.
31
The cost of a medical report obtained for medico-legal purposes and the
cost of any consultation associated with such a report are “medical
services” within the meaning of the RTW Act. That cost must have been
“reasonably incurred” to be recovered under s 33 of the RTW Act.
“Reasonably incurred”
32
Section 33 of the RTW Act provides:
“33—Medical expenses
(1)
Subject to this section, a worker is entitled to be compensated
for costs of services described in subsection (2) that are
reasonably incurred by the worker in consequence of having
suffered a work injury—
(a)
in accordance with a scale published by the Minister
under this section; or
(b)
if the relevant service is not covered by a scale under this
section—to the extent of a reasonable amount for the
provision of the service.”
33
What does the phrase “reasonably incurred by the worker in consequence
of having suffered a work injury” mean?
34
The predecessor of s 33 of the RTW Act is s 32 of the repealed Act
which in turn derived from s 59 of the Workers Compensation Act 1971.
35
Section 59(1) of the 1971 Act provided that the employer was liable to
pay as compensation to the injured worker, “such reasonable expenses
incurred as a result of his injury” for medical and like expenses.
36
In Metro Meat Ltd v Banjanovic, 14 the Full Supreme Court considered
the ambit of s 59 of the 1971 Act. King CJ held as follows:
“I think that when the expression is read as a whole, its natural
meaning is that the expenses must be reasonable as to the incurring
of them by the worker. That implies to my mind that the worker
must have acted reasonably in procuring the rendering of the
14
(1989) 52 SASR 102.
Watson v State of South Australia
(Department of Premier and Cabinet)
[2015] SAET 4
8
Calligeros DP
service and engaging himself to the pay the amount charged. I see
no justification for confining the requirement of reasonableness to
the quantum of the charge. A person cannot be said, according to
the ordinary use of language, to have incurred a reasonable expense
if he acted unreasonably in procuring the service to be rendered in
the sense, that is to say, that he knew or ought to have known that
the service was of little of no benefit to him or that the benefit
could reasonably be obtained in another and cheaper way.
It is important to note that the requirement of reasonableness
attaches to the incurring of the expense by the worker.”
37
In Hiern v Department of Employment, Training and Further
Education, 15 Gilchrist DPJ set out the passage above and noted that the
approach in Banjanovic applied to s 32 of the repealed Act. 16 There are a
number of other matters where that conclusion was also reached. 17 In my
view, the logic in Banjanovic also has application to s 33 of the RTW
Act. There is no material difference for present purposes between s 32(1)
of the repealed Act and s 33(1) of the RTW Act.
38
Section 33 of the RTW Act adopts Banjanovic and predecessor
legislation. It requires that it was reasonable to undertake the medical
service. The amount charged or paid for the medical service also has to
be reasonable, either by reference to a scale of charges published, or in
the general sense contemplated in Banjanovic.
39
In my view, it follows from the language of s 33 and from Banjanovic
that the time for determining when a medical expense was reasonably
incurred is the time when it was incurred. Applying the test at any other
time is problematic. For example, medium term or long term use of
physiotherapy may not be reasonable if no benefit is obtained. However,
that does not mean it was unreasonable for a worker to undertake
physiotherapy for a time and to see whether or not it was of benefit.
40
No submission was made that the quantum of the report and consultation
fee were unreasonable. The issue is simply whether it was unreasonable
to incur the expense as at 22 June 2015.
Conclusion
41
15
Dr Cullum’s medical report is a medical service under s 33 of the RTW
Act. The time for ascertaining whether that service was reasonably
incurred is when it was incurred.
[2003] SAWCT 96.
Supra at para 37.
17
eg Tuddenham v Woolworths Limited [2002] SAWCT 82; Misganaw v WorkCover
Corporation/Employers Mutual Limited [2008] SAWCT 27.
16
Watson v State of South Australia
(Department of Premier and Cabinet)
[2015] SAET 4
9
Calligeros DP
42
Mr Watson was taking the opportunity to see if he could qualify to be
treated as a seriously injured worker before 1 July 2015 when the SIA
Guidelines commenced operation. Dr Cullum’s report was received
about a week before 1 July 2015. If Mr Watson had wanted DPC to
determine his WPI based on Dr Cullum’s report before 1 July 2015, he
could have asked for that to be done.
43
In my view, given the significant amount of compensation at stake, and
given he had an opportunity to qualify as a seriously injured worker prior
to the commencement of the SIA Guidelines, Mr Watson was acting
reasonably in seeking the report from Dr Cullum in my view.
44
Mr Watson made a conscious decision to not rely upon the report as it
assessed his WPI at less than 30%. In my view, given cl 44 of Schedule 9
of the RTW Act, that was also not an unreasonable thing to do.
Mr Watson is entitled to avail himself of whatever benefits he is entitled
to under either the repealed Act or the RTW Act.
45
An analogy can be drawn between the report here, and medical
investigations or imaging undertaken by a worker. Both are medical
services. Simply because a worker undertakes a medical investigation
does not mean that he or she is obliged to undertake some form of
treatment based upon it. The investigation may exclude the need or
desirability of a form of treatment. If treatment is recommended as a
result of the investigation and the worker decides not to undertake the
treatment, it does not necessarily follow that the cost of the investigation
was not reasonably incurred.
46
Obtaining medical reports at short notice just prior to legislative change
taking effect was a common occurrence under the repealed Act. The
transitional provisions in the 1995 and 2008 Amendment Acts were
responsible for many medical reports being obtained and many s 43
determinations being sought and made. 18 This matter is an instance of the
same thing happening again as a result of s 22 and s 58 of the RTW Act.
47
DPC’s concern about being asked to pay for a medical report that was
never relied upon by Mr Watson is understandable. However, when the
disputed report fee is viewed in the relevant statutory context – as a
claim for a medical service with a large amount of compensation at stake
in the context of significant legislative change – it was reasonable to seek
the report and it was also reasonable not to rely upon it.
18
Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act 1995 and
Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008.
Watson v State of South Australia
(Department of Premier and Cabinet)
[2015] SAET 4
10
Calligeros DP
48
If a medical report was not obtained in the context of legislative change,
and was not relied upon by the worker to claim compensation or to
prosecute a dispute, then it may well not be a reasonably incurred
expense. Rule 33 of the SAET Rules provides such a report must be
disclosed to all other parties to a dispute. Failure to disclose a medical
report in a different context may well not be reasonable.
49
If Mr Watson’s WPI had been assessed at 30% or more by Dr Cullum,
there is little doubt he would have relied upon the report, and would have
asked that a s 43 determination be made based on Dr Cullum’s report.
50
I order that the respondent meet the cost of the account of Dr Cullum in
the sum of $1,738.40. The applicant is entitled to costs of this action to
be agreed or taxed.
NOTE CAREFULLY:
Parties are advised that if a party wishes to appeal against any part of this
decision which is appealable pursuant to s 67(1)(a) of the Act such appeal
must be filed with the Registrar in accordance with the form titled Notice of
Appeal within 14 days of the delivery of this decision and must be served on
all parties.