Baptist Community Services – NSW & ACT v Abi-Arrage
[2008] NSWWCCPD 16
•8 February 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR
CITATION:Baptist Community Services – NSW & ACT v Abi-Arrage [2008] NSWWCCPD 16
APPELLANT: Baptist Community Services – NSW & ACT
RESPONDENT: Roselie Abi-Arrage
INSURER:Employers Mutual NSW Limited
FILE NUMBER: WCC4186-07
DATE OF ARBITRATOR’S DECISION: 22 August 2007
DATE OF APPEAL DECISION: 8 February 2008
SUBJECT MATTER OF DECISION: Jurisdiction to determine a claim for medical expenses not yet incurred; application of Widdup v Hamilton [2006] NSWWCCPD 258, and Robinson v Forster Tuncurry Memorial Services Club Limited [2007] NSWWCCPD 84.
PRESIDENTIAL MEMBER: Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION: Appellant: Edwards Michael Lawyers
Respondents: Sanford Legal
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 22 August 2007 is revoked and the following decision is made in its place:
“1. The proceedings are dismissed.
2. No order as to costs.”
No order as to costs of this appeal.
BACKGROUND TO THE APPEAL
On 19 September 2007 Baptist Community Services – NSW & ACT (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’).
The Respondent to the Appeal is Roselie Abi-Arrage (‘the Respondent Worker’).
The Respondent Worker is now 50 years old, and worked for the Appellant Employer as a nursing assistant from about March 1990, until suffering injury on 10 August 2004, whilst assisting a patient. The Application to Resolve a Dispute (‘ARD’) lodged on her behalf on 7 June 2007 pleaded injury to her back, neck, right arm and both legs. Low back symptoms have been the major problem. Her treating medical practitioners included the orthopaedic surgeon Dr Y Kai Lee. The Appellant Employer voluntarily accepted liability to make weekly and other payments. Attempts to return her to light duty work with the Appellant Employer between October 2005 and February 2006 were unsuccessful.
The insurer suspended the Respondent Worker’s weekly payments from 26 February 2006, on the basis she had unreasonably failed to comply with the workplace injury management plan which was in place. The Respondent Worker instituted proceedings in the Commission in matter number WCC5797-06, which were determined on 12 July 2006. It was held the Respondent Worker’s failure to comply with the plan was not unreasonable, and the Respondent Worker was awarded weekly compensation at the appropriate full statutory rate specified in section 37 of the Workers Compensation Act 1987 (‘the 1987 Act’), from 8 March 2006, pursuant to section 40. There was also a general order for the payment of medical expenses pursuant to section 60, to which the Appellant Employer consented.
The Appellant Employer’s insurer issued a section 74 Notice to the Respondent Worker on 19 January 2007, declining to pay the cost of physiotherapy and supervised hydrotherapy, pursuant to section 60, beyond 19 January 2007, on the basis such treatment was not reasonably necessary. In the same letter it confirmed its previous agreement to pay the cost of “a 20 session pool pass for independent attendance”.
Dr Kai Lee reported to the Appellant Employer’s insurer on 3 March 2006, in a document headed “Request for Surgery”. He said “I have reviewed her condition. She will probably benefit from L4/5 discectomy plus L4/5 and L3/4 X-stop dynamic stabilization. This will be carried out as soon as we get approval from your company.” The insurer issued a further section 74 Notice on 2 April 2007, denying liability pursuant to section 60 “for surgery including decompression and dynamic stabilisation of the spine at the L3/4 and L4/5 levels”. The basis of the denial was that such treatment was “not reasonable or necessary”. Dr Kai Lee further reported to the Respondent Worker’s solicitors on 31 May 2007, enclosing a copy of his previous letter regarding the need for surgery. He described the proposed procedure as one he had by that time carried out with good results on seven patients with stenosis similar (but slightly different) to the Respondent Worker’s. He went on “While if it comes to surgery, I still need to re-access her to determine the best procedure for her, I have confidence that she will improve following surgery, though I may not be able to get her to return to her former duties.”
The compensation claimed at paragraph 5.3 of the ARD is described as “Physiotherapy treatment, hydrotherapy treatment, back surgery proposed by Dr Kai Lee”.
The Appellant Employer’s Reply disputed that the surgery proposed by Dr Kai Lee was reasonably necessary. Additionally it disputed the jurisdiction of the Commission to make orders of a declaratory nature, for the payment of expenses pursuant to section 60, where the treatment had not been administered, and the cost not yet incurred. The Reply referred to the decision of the President Sheahan J, in Widdup v Hamilton [2006] NSWWCCPD 258 (‘Widdup’).
The matter proceeded to arbitration hearing on 25 July 2007. Both parties were represented by counsel. Both parties put on written submissions, and also made oral submissions before the arbitrator. No oral evidence was called.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 22 August 2007 recorded the Arbitrator’s determination in the following terms:
“The determination of the Commission in this matter is as follows:
Finding.
1. The surgery proposed by Dr Lee is reasonably necessary.
2. Self managed hydrotherapy with periodic review by a physiotherapist is reasonably necessary.
Orders
1. Respondent to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
1. Whether the arbitrator had jurisdiction to make the above findings and order in the circumstances.
2. If so, whether the arbitrator erred in his factual finding that the above treatment was reasonably necessary.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
The Appellant Employer submits the appeal can be dealt with on the papers. The Respondent Worker submits the appeal should not be dealt with on the papers, as it “raises important and complex issues of law that have ramifications for the interpretation of the WCC’s powers in respect of section 60 of the WCA 1987”.
The legal and factual issues have been well ventilated in the written submissions made by both parties, both before the arbitrator (such submissions are included in the material relied upon in this appeal), and on the appeal. I also have the benefit of transcript of the submissions made before the arbitrator.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Appellant Employer 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The Respondent Worker submits that, as the determination involved only a finding that certain medical treatment was reasonably necessary, with no compensation actually being awarded, the amount at issue does not exceed $5,000. Accordingly the threshold in section 352(2)(a) is not satisfied. The Appellant Employer responds to this argument, submitting that as no compensation was actually awarded, section 352(2) has no application, relying upon Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5 (‘Mawson’).
The situation is analogous to matters where the same argument has been raised, based upon section 352(2)(a), where the order the subject of appeal was a general order pursuant to section 60 of the 1987 Act. The approach taken in Presidential decisions in such circumstances has involved enquiring into the sums of which recovery would be sought, pursuant to the general order. Where the material available on appeal indicated the sums involved were less than $5,000, leave was refused, where more than $5,000, section 352(2)(a) was taken to be satisfied: Georgandas v Qantas Flight Catering [2003] NSWWCCPD 20, Miller v Anglican Retirement Village [2003] NSWWCCPD 33, Lilly v Tomago Aluminium Company Pty Limited [2004] NSWWCCPD 62. I adopted this approach (where the order at issue was a general one pursuant to section 60) in Olympic Fencing (NSW) Pty Limited v Crossley [2007] NSWWCCPD 121.
This interpretation of section 352(2)(a) was also adopted by Martin ADP in Southside Glass Supplies Pty Ltd v Enviropest Pty Ltd and McMahon [2006] NSWWCCPD 268 (‘Southside Glass Supplies’). The decision appealed from in that matter was a declaration of liability regarding the cost of medical treatment for a proposed knee replacement. Although no actual monetary figure of compensation had been awarded, the Acting Deputy President accepted medical evidence the estimated cost of such surgery exceeded $5,000, in granting leave to appeal. A similar approach was taken by O’Grady ADP in Grain Handling Authority v Graincorp Operations Limited & Anor [2007] NSWWCCPD 54 (‘Grain Handling Authority’). In my view this is also consistent with section 354(3) of the 1998 Act. It is appropriate this approach to the application of section 352(2)(a) be taken in the current circumstances.
Dr Kai Lee’s report of 3 March 2006 included the doctor’s estimate of the cost of the surgical procedure described in that report. The figures total approximately $25,000. His report of 31 May 2007 referred to the costing he had submitted previously, and commented “Please note that they are estimates only and there is a slight increase this year. I have also not included the GST portion of the implant.” It is clear, based upon this material, which formed part of the Respondent Worker’s case, that the sums of which recovery was to be sought, based upon the arbitrator’s determination, exceeded $5,000.
Accordingly, in my view section 352(2)(a) is satisfied. The whole of the determination is the subject of dispute on the appeal, and section 352(2)(b) is also satisfied. I grant leave to appeal.
DISCUSSION AND FINDINGS
The Jurisdictional Argument
The only order actually made by the arbitrator was one relating to costs. This was accompanied not by orders for the payment of compensation, but rather by two factual findings. In the course of submissions, the arbitrator had observed it was “settled ground” he could not make an order which would have the effect of “prospective indemnification”, a proposition the Respondent Worker’s counsel did not quibble with (T13.15 to 13.25). It was against this background the arbitrator made findings, rather than making a declaration, or entering an award, relating to the Appellant Employer’s liability for the relevant treatment.
The Appellant Employer’s argument is based primarily upon two Presidential decisions. The earlier of these is Widdup, in which the question of law referred to the President, posed by an arbitrator, was expressed in the following terms:
“Where liability is not in issue, does an Arbitrator have power to [make] a declaratory finding or determination that proposed specific medical treatment by a particular specialist for a compensable injury suffered by the Applicant, is reasonably necessary treatment within the meaning of section 60 of the Workers Compensation Act 1987? ”
The employer in that case did not dispute its obligation to pay the ongoing cost of reasonable medical treatment resulting from work injury, but did dispute its liability to pay for a specific procedure the worker proposed undergoing, a three level discogram. President Sheahan J (as he then was) engaged in a review of the statutory powers of the Commission, and the case law, relevant to the question of whether the Commission had the power to make a declaratory order for the payment of a specific future medical expense not yet incurred. In particular, his Honour referred to the decision of the NSW Court of Appeal in NSW Sugar Milling Co-op Ltd v Manning (1998) 44 NSWLR 442 (‘Manning’). His Honour concluded:
“41. Manning is binding authority that section 60 is an indemnity provision under which orders can be made for the payment of the cost of hospital and medical treatment. A ‘cost’ is “a financial liability to pay for services provided.” If no ‘cost’ has been incurred then there is no financial liability involved. Therefore, in my view Manning creates an insurmountable barrier to the making of a declaratory order for the payment of specific future hospital and medical expenses pursuant to section 60, because those anticipated expenses are not ‘costs’ within the meaning of that term in section 60.
42. I am satisfied, based on Manning and the wording of section 60, together with the relevant provisions of section 289(2) of the 1998 Act and the definitions of ‘claim’ and ‘compensation’, that the Commission’s jurisdiction to award compensation pursuant to section 60 is limited by the express provisions of the legislation. There is no express or incidental power to make ‘declaratory orders’ pursuant to section 60.
43. A declaration that certain medical treatment is reasonably necessary or that an employer is liable for certain proposed future medical treatment to be provided to a worker, is not a ‘monetary benefit’ (see the definition of ‘compensation’ above at 26). It is merely a declaration of potential future liability but it is not a ‘cost’ payable under section 60 until that cost is incurred.
44. To make a declaration that an employer is liable for the payment of specific future medical expenses exceeds the Commission’s express powers in the Workers Compensation Acts and gives an interpretation to section 60 that is contrary to the words in the section and contrary to binding Court of Appeal authority.”
It is worth noting that his Honour’s conclusion did not depend upon whether or not a general order was in place for the payment of section 60 expenses, at the time such declaratory relief was sought. His Honour said:
“49. It is understandable that a worker who is having his/her medical expenses met by the insurer, either on a voluntary basis or pursuant to a general order made under section 60 of the 1987 Act, would at times seek confirmation from the insurer that it will meet the cost of certain specific treatment before the worker undertakes that treatment. Often this treatment is in the form of major surgery or costly invasive investigative procedures. It is clearly recognised that confirmation in advance that the insurer will meet that cost creates a degree of financial certainty for the worker. The failure to obtain that confirmation may lead to considerable hardship in some cases, as it may unreasonably delay necessary treatment. It is, therefore, regrettable that the Commission is not empowered to make declarations of future liability pursuant to section 60, and consideration should be given to legislative reform in this regard to avoid such hardship.” (emphasis added).
Widdup was considered and applied by Roche DP in Robinson v Forster Tuncurry Memorial Services Club Limited [2007] NSWWCCPD 84. The employer declined to pay the cost of a proposed knee replacement, in part on the basis it was not reasonably necessary, or did not relate to the injury relied upon. The worker’s proceedings sought orders for payment of this treatment. The arbitrator found the proposed surgery did not result from the work injury. The worker appealed this decision to Roche DP.
The Deputy President noted the Commission was a statutory tribunal, with only those powers conferred upon it by legislation (at [19]). Applying Manning and Widdup, the Deputy President concluded the Commission does not have power to order the payment of future medical expenses because section 60 is an indemnity provision (Manning), and a claim for potential future expense was not a claim for compensation within the meaning of the legislation. Accordingly the Deputy President, applying Widdup, decided the Commission did not have jurisdiction to make the orders sought by the worker, for payment of the cost of medical expenses not yet incurred (at [22]). Nothing in the Deputy President’s reasons suggests his decision was dependant upon whether or not a general order pursuant to section 60 was in place, prior to the worker seeking an order for payment of the cost of the proposed surgery.
The Appellant Employer, in Submissions in Reply, has referred to two further Presidential decisions. The first is that of Martin ADP in Southside Glass Supplies. In that matter an employer appealed against a declaration that it was reasonably necessary a worker undergo a proposed total knee replacement. The Acting Deputy President, in upholding the appeal, applied Widdup, and held it was an error of law for the arbitrator to make the declaration. The other additional decision referred to is that of O’Grady ADP in Grain Handling Authority. In that decision, which involved an industrial deafness claim, the Acting Deputy President substituted a general order pursuant to section 60, for an order made by an arbitrator that two employers share a specified cost of hearing aids not yet supplied. In doing so, the Acting Deputy President applied Widdup (at [54]).
The Respondent Worker, in his submissions, has referred to two Presidential decisions, Lilly v Tomago Aluminium Company Pty Limited [2004] NSWWCCPD 62 (‘Lilly’), and Water Taxis Combined Pty Limited and Harbour Taxi Boats Pty Limited v Wells [2004] NSWWCCPD 30 (‘Water Taxis’).
In Water Taxis an arbitrator made a weekly award in a worker’s favour, and a general order under section 60. The section 60 order was followed by a notation it included a sum of $4,968.09 by way of past medical expenses, and an ongoing sum of $2,000 per annum for physiotherapy and massage. The employers successfully challenged that part of the order purporting to put a figure on the ongoing medical expenses. President Sheahan J said:
“94. The 1987 Act provides for a worker to be compensated for reasonable medical costs, actually incurred and properly verified, resulting from an injury (see section 60(3) of the 1987 Act).
95. An Arbitrator, therefore, does not have the power to make an order for the specified payment of medical expenses based upon an estimate of the likely future costs. An Arbitrator is entitled to find that an employer is liable to pay a worker for medical or related treatment, including future medical or related treatment, in accordance with section 60 of the 1987 Act. An employer, however, will not be liable to pay the worker’s section 60 expenses until they have been incurred and properly verified.
96. The Arbitrator in this case has erred in making an order for a fixed sum for the payment of medical expenses not yet incurred and properly verified.
97. I, therefore, revoke the relevant part of order C made by the Arbitrator, to the effect that:
The Respondents pay the Applicant’s expenses... [of] $2000 per annum for physiotherapy and massage.
98. The simplest solution would be to substitute the following as order C:
The Respondents are to pay the Applicant’s expenses under section 60 of the Workers Compensation Act 1987, on production of accounts or receipts, on a contribution basis of 25% by the First Respondent and 75% by the Second Respondent, such expenses to include $4968.09 incurred to date, plus all appropriate physiotherapy and remedial massage expenses.”
The above passage is, in my respectful view, essentially consistent with his Honour’s decision in Widdup. It is noteworthy the form of order substituted by his Honour, on appeal, avoided any specific finding regarding what treatment, in the future, would be properly recoverable pursuant to section 60.
Lilly involved proceedings by a worker, seeking orders pursuant to section 60, for payment of the cost of an x-ray which had been carried out, and the cost of a total knee replacement in the future. Fleming DP reviewed the arbitral decision, and dismissed the worker’s appeal. The Deputy President concluded the medical evidence led overwhelmingly to the conclusion reached by the arbitrator, that any aggravation of the underlying degenerative condition of the worker’s knee had ceased prior to the date of the x-ray. Accordingly there was an award in the employer’s favour. In the course of her Reasons, the Deputy President said:
“46. Mr Lilly has essentially made two claims under section 60. The first claim relates to an expense of $280 that he incurred for the cost of X-rays of his right leg that were carried out on 24 February 2003, some three and a half years after he fell at work on 24 October 1999. The second claim is for a continuing award to cover the cost of a total knee replacement of his right knee at some future, not nominated, date.
47. The 1987 Act provides for compensation for medical expenses only after they are incurred and properly verified. Section 60 is an indemnity provision (NSW Sugar Milling Co-op v Manning (1998) 44 NSWLR 442). It is therefore not appropriate for an Arbitrator to make an order pursuant to section 60 of the 1987 Act for a specified sum, based upon likely future costs. However, this is not a bar to an Arbitrator making a finding that an employer is liable for certain future medical expenses under section 60, which will then become payable as they are incurred (Water Taxis Combined Pty Limited and Harbour Taxi Boats Pty Limited v Wells[2004] NSW WCC PD 30).”
The factual finding made by the Deputy President, that the effects of work caused aggravation had ceased prior to the x-ray being carried out, was a necessary one to deal with that part of the claim relating to cost of the x-ray, in respect of which the Commission had clear jurisdiction. That finding was of such a nature as to be fatal to a claim by the worker for compensation for medical expenses or incapacity thereafter, applying ordinary principles of issue estoppel (see generally Blair v Curran (1939) 62 CLR 464, Egri v DRG Australia Ltd (1988) 19 NSWLR 600, Lambidis v Commissioner of Police (1995) 12 NSWCCR 225). It followed, from the Deputy President’s finding on causation relating to the x-ray, that subsequent treatment, including the proposed knee replacement, would not result from the work injury she had found. Accordingly, that part of the Deputy President’s Reasons, dealing with the availability to the Commission of a power to make findings regarding future medical expenses, may be regarded as obiter dictum.
It should also be noted the decisions in Water Taxis and Lilly pre-dated Widdup and Robinson, and indeed the Reasons of Sheahan J in Widdup include a discussion of those earlier decisions (at [48]). I take his Honour’s comments at that paragraph as recognition of the point that a factual finding, depending on what it is, can impact on a claim that may be made in the future, pursuant to section 60. Clearly, for example, if a claim for existing section 60 expenses were to fail, on the basis a worker had not suffered injury, or the causal chain no longer subsisted (as in Lilly), this would impact on any claim for treatment thereafter, allegedly resulting from the same injury.
The arbitrator, in concluding he had jurisdiction to make the factual findings sought by the Respondent Worker, distinguished Widdup and Robinson on two bases. The first was that, in the current proceedings, the Respondent Worker was already in receipt of a general order pursuant to section 60. The arbitrator at [19] of his Reasons stated:
“The consequence is that this Application is in affect (sic) an approach to the Commission for an interpretation of the application of the order already made. In that respect the Commission is seised (sic) of jurisdiction and following what was said in Widdup is entitled to make a factual finding.”
It is apparent from the passage of Widdup quoted at [26] above, that Sheahan J did not approach the jurisdictional question on the basis that the lack of a general order pursuant to section 60 was of significance. Similarly, as I have observed at [28] above, there is nothing in the reasons of Roche DP in Robinson to suggest the Deputy President regarded the presence or absence of such an order as relevant to his conclusion on jurisdiction. In my view, those decisions cannot be validly distinguished on that basis.
The second basis on which the arbitrator distinguished Widdup and Robinson, referred to at [20] of his Reasons, was that in the current proceedings, no order was sought, only a factual finding as to whether certain proposed treatment was reasonably necessary.
In Robinson the worker sought to avoid the impact of Widdup by arguing what he sought was not a declaration of liability, but rather an order for certain costs and expenses (Robinson at [21(g)]). The Deputy President concluded the worker was, in reality seeking a declaration of liability (however expressed), which it was beyond the Commission’s jurisdiction to make (at [22(f)]). Similarly, in the current proceedings, what the Respondent Worker seeks is findings designed to establish a liability of the Appellant Employer to pay the cost of the proposed surgery. The findings sought would be futile otherwise. However expressed, the Respondent Worker seeks a declaration of liability. To recognise this as the real nature of the relief sought by the Respondent Worker is also, in my view, consistent with section 354(3) of the 1998 Act, which provides:
“The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
A further matter referred to by the arbitrator is section 105 of the 1998 Act, which gives the Commission “exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.” The arbitrator observed “the Commission’s jurisdiction is not, on the face of it, limited to matters in respect of claims” (at [17 of his Reasons). However Chapter 7 of the 1998 Act demonstrates the importance of a claim in conferring jurisdiction on the Commission.
It is necessary that a claim be made in compliance with Division 2, and that the employer then deal with the claim in compliance with Division 3. Division 4 Part 4 then makes provision (in section 288) permitting “any party to a dispute about a claim” to “refer the dispute to the Registrar for determination by the Commission” (emphasis added). Section 289 makes it clear a dispute about a claim for medical expenses cannot be referred unless the claim has been either disputed or not determined by the person on whom it was made. Section 289(5) provides the Commission does not have jurisdiction, if section 289 prevents the dispute being referred for determination. It is inherent in the legislative scheme that the Commission’s jurisdiction is dependant upon a claim being made, and either disputed, or not determined in accordance with the Act. This legislative scheme is described by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [61]. The need for jurisdiction to be conferred upon the Commission pursuant to this scheme, after a claim is made, is an inherent part of the reasoning of Sheahan J in Widdup, which led to his Honour’s conclusion the Commission did not have jurisdiction to make a declaration of liability in respect of a section 60 expense not yet incurred (see Widdup at [22] to [29], and [42] to [46]). To observe section 105 does not restrict the Commission’s jurisdiction to matters in respect of claims, fails to take adequate account of the legislative scheme in Chapter 7, on which the Commission’s jurisdiction depends in such matters.
An additional matter raised by the Respondent Worker in her submissions, although not specifically relied upon in the Reasons of the arbitrator, is an argument the Appellant Employer, by issuing a Notice pursuant to section 74 of the 1998 Act, created a dispute, with which the Commission then had jurisdiction to deal, pursuant to section 105. The relevant Notices were issued on 19 January 2007 and 2 April 2007 (see [5] and [6] above). Section 74(1) of the 1998 Act provides:
“If an insurer disputes liability in respect of a claim or any aspect of a claim, the insurer must give notice of the dispute to the claimant.”
Section 74 then goes on to make provision for the form of notice, the circumstances in which a notice may be given, and other matters.
The difficulty with the Respondent Worker’s argument flowing from section 74 is that the notice must be “in respect of a claim”. If there is no valid claim, then there is nothing in respect of which an insurer can give notice. It is inherent in the consideration, in Widdup, of the legislative scheme, that a valid claim cannot be made in such circumstances, for the cost of proposed treatment is not a cost payable under section 60, until that cost is incurred (see Widdup at [41] to [43]). Section 289(2) of the 1998 Act would prevent referral of such a ‘dispute’ to the Commission, as there is no “claim for medical expenses” to give rise to a ‘dispute’, to be referred. Further, it is not possible for the insurer’s purported issue of a Notice pursuant to section 74 to confer jurisdiction, if it does not otherwise exist. Jurisdiction cannot be conferred by consent (see Robinson at [19] and the cases cited therein).
Accordingly, the conclusion I have reached is that Widdup and Robinson cannot be validly distinguished in the fashion adopted by the arbitrator. In my view those decisions, which I apply, lead to the conclusion the Commission did not have jurisdiction to grant the relief sought.
I should note the form of relief in the findings made by the arbitrator may well have been of limited utility in any event. As the arbitrator noted in his Reasons, “There can be no liability to pay for treatment until it has been incurred and it may be that once it has been incurred the Respondent may be able to resist payment on some basis that is not currently apparent. For example, the fees charged may be excessive.” (at [20]). The precise meaning of the finding regarding surgery may also have been open to doubt. “The surgery proposed by Dr Lee” was found to be reasonable. However there was one surgical procedure proposed in Dr Kai Lee’s report of 3 March 2006. The report of 31 May 2007 indicated that, if the Respondent Worker came to surgery, the doctor would need to “re-access her” to determine the best procedure. It is quite conceivable that, if the Respondent Worker submitted to surgery, the procedure carried out would not necessarily have been that described in the report of 3 March 2006.
DECISION
The decision of the arbitrator dated 22 August 2007 is revoked, and the following decision is made in its place:
“1. The proceedings are dismissed.
2. No order as to costs.”
I make no order as to costs of this appeal.
Michael Snell
Acting Deputy President
8 February 2008
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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