Bolwell v NSW Electoral Commission

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bolwell v NSW Electoral Commission [2021] NSWPIC 229
APPLICANT:	Mary Bolwell
RESPONDENT:	NSW Electoral Commission
MEMBER:	Catherine McDonald
DATE OF DECISION:	6 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for future treatment expenses commenced as application for expedited assessment; operation of section 59A of the 1987 Act; Held- no order.
DETERMINATIONS MADE:	1. No order.

STATEMENT OF REASONS

BACKGROUND

Mary Bolwell was employed by the NSW Electoral Commission as a poll attendant. She fell and suffered an injury to her back in the early hours of 24 March 2019 when packing up the polling booth after a State election. The Electoral Commission does not dispute that she suffered an injury.
Ms Bolwell’s injury occurred after she reached the retiring age, determined in accordance with s 52 of the Workers Compensation Act 1987 (the 1987 Act). Ms Bolwell did not claim weekly compensation but, if she had done so, her entitlement would probably have ceased in late March or early April 2020 in accordance with s 52(2)(b) (subject to the date of commencement of any incapacity for work).
Ms Bolwell claims the cost of bilateral radiofrequency denervation at L3/4 which was recommended by Dr M Coughlan in September 2020. The Electoral Commission argues that those costs are not payable because of s 59A of the 1987 Act.
The issue to be determined is very narrow and turns on the meaning of claim in s 59A.

PROCEDURE BEFORE THE COMMISSION

The matter was commenced as an Application for Expedited Assessment. It was fixed for telephone conference on 26 May 2021 when Mr Carney of counsel appeared for Ms Bolwell, instructed by Mr Counter, and Mr Hodges, solicitor appeared for the Electoral Commission.
The parties agreed to the determination of the matter without a conference or formal hearing. Mr Carney sought leave to file written submissions because Ms Bolwell had not previously been given advice about important issues.
I prepared a direction in which I noted that the claim was for future medical treatment under s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) so that it should be determined by the Commission rather than by issuing an interim payment direction, the latter procedure applying only to past medical expenses.
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 used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. 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.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application for Expedited Assessment and attached documents;
(b) Reply.

SUBMISSIONS

Mr Counter, solicitor, prepared submissions on behalf of Ms Bolwell. He said that it was not disputed that Ms Bolwell was not entitled to weekly compensation and that her entitlement to that compensation ceased on 23 March 2020. He said that under “s 59A(2)(ii)”, the last day on which s 60 expenses could be paid was 23 March 2021.
However, Mr Counter submitted that “s 59A(2)(i)” applied because no weekly payments were made and the claim for s 60 expenses was not made until 19 September 2020 when Dr Coughlan made the request for treatment. He said that the High Court decided in ADCO Constructions Pty Ltd v Goudappel[1] (Goudappel) that a claim for compensation in cl 11 of the Workers Compensation Regulation 2016 was the first claim for compensation of any kind. In this case, the first claim for s 60 expenses was made in early April 2019.
[1] [2014] HCA 18.
Mr Counter submitted that a claim for s 60 expenses is an indemnity provision and the claim “only comes into existence” when a specific claim is made. He cited Widdup v Hamilton[2] to argue that jurisdiction of the Commission can only arise when a particular medical expense is claimed. He said that the position is different to a claim for weekly compensation or permanent impairment compensation so that Goudappel can be distinguished. He said that the words “the day on which the claim for compensation in respect of the injury is first made” in s 59A(2)(i) can therefore only apply to the specific claim for treatment and that Ms Bolwell has two years from 19 September 2020 to have her claim determined and the treatment performed.
[2] [2006] NSWWCCPD 258.
Mr Hodges solicitor, prepared submissions on behalf of the Electoral Commission. He said that a claim for s 60 expenses was first made on or about 31 March 2019 when Ms Bolwell saw her general practitioner and sought payment of treatment expenses from the Electoral Commission’s insurer. The two year period in s 59A therefore concluded on about 31 March 2021 and was running when the claim for radiofrequency denervation was made on 15 September 2020.
Mr Hodges said that the Electoral Commission’s insurer disputed the claim by a s 78 notice dated 8 October 2020. No review of that decision was sought until 23 April 2021 when the period in s 59A for the treatment to be given or provided had already expired.
Mr Hodges noted that the submission that s 60 was an indemnity provision (so that a claim only came into existence when a specific claim was made) was inconsistent with s 60(5).

FINDINGS AND REASONS

Mr Counter’s reliance on Widdup is misplaced and his submissions fail to take account of the development of the law since that decision in 2006.
In Widdup, Sheahan P followed the decision of the Court of Appeal in New South Wales Sugar Milling Co-Operative Ltd v Manning[3] and held that the Workers Compensation Commission did not have jurisdiction to make a declaration of liability in respect of the cost of future treatment.
[3] (1998) 44 NSWLR 442, (1998) 16 NSWCCR 606.
Section 60(5) was inserted into the 1987 Act to overcome the limitation, with operation from 2011 (see Tolevski v Zanardo & Rodriguez Sales & Service Pty Ltd[4]).
[4] [2013] NSWWCCPD 9 at [40]-[41].
Section 60(5) provides:
“(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”
The submissions made are somewhat surprising given the reference to s 60(5) in the Direction for Submissions made at the telephone conference.
Pursuant to s 60(5), the Commission has jurisdiction to determine liability for future treatment expenses, subject to the other provisions of Part 3, Division 3 of the Act, including s 59A.
Section 59A relevantly provides:
“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—
(a)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—
(i)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
(ii) 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
(b)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—
(i)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
(ii)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)     ....
(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)     …”
Mr Counter’s submissions did not distinguish between s 59A(2)(a) and (b). No assessment of permanent impairment has taken place so only the provisions of sub-s (2)(a) can apply.
Ms Bolwell’s statement does not say when she first made a claim for compensation. The Electoral Commission’s insurer wrote to her general practitioner, Dr Wijekoon on 12 May 2019[5]. The claim had clearly been made before that date.
[5] Application for Expedited Assessment p 52.
The task of statutory interpretation “must begin with the consideration of the text itself” - Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)[6] In the same case, French CJ said that the starting point was “the ordinary and grammatical sense of the statutory words to be interpreted, having regard to their context and the legislative purpose.”
[6] (2009) 239 CLR 27, 46. (Alcan).
The compensation period in s 59A commences to run from the day on which the claim for compensation in respect of the injury was first made. Those words are clear and Mr Counter conceded they meant the first claim for compensation of any kind.
The only argument relied on in support of the application was that that there is no claim until a claim for the specific treatment is made. The submission is based on authorities which considered a previous version of the section.
The fact that the relevant treatment has not been undertaken is immaterial – s 59A precludes payment for treatment provided after the expiration of the compensation period, regardless of when the claim for the treatment was made. The treatment must be provided before the expiration of the compensation period.
The Electoral Commission’s insurer issued the first s 78 notice in respect of the treatment proposed by Dr Coughlan in October 2020. At that time, s 59A did not preclude payment by the insurer for Ms Bolwell’s medical treatment.
The s 78 notice dated 7 May 2021 shows that no review was sought of the October 2020 decision until 23 April 2021. The application for review was based on Dr J G Bodel’s report dated 15 February 2021. There is no explanation for the delay in seeking the review, though none is required for the purpose of this application.
The s 78 notice dated 7 May 2021 did not rely on s 59A. However, under s 59A(2)(a)(i) Ms Bolwell’s entitlement to compensation had terminated some time before 12 May 2021 by the operation of the legislation, not as a result of a decision by the insurer.
Having found that payment for the treatment is precluded by s 59A, it is not necessary for me to consider if the treatment is reasonably necessary medical treatment as a result of the injury. Mr Counter did not make any submissions on the issue. Mr Hodges merely said that I would accept Dr Gorman’s opinion that the treatment was not reasonably necessary as a result of the injury.
Compensation is not payable because of the operation of s 59A and I decline to make the order sought.

[2021] NSWPIC 229

6 July 2021