Borg v Aquarius NSW Pty Ltd - [2021] NSWPIC 149

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Borg v Aquarius NSW Pty Ltd [2021] NSWPIC 149
APPLICANT:	Joseph Borg
RESPONDENT:	Aquarius NSW Pty Ltd
DELEGATE:	Parnel McAdam
DATE OF DECISION:	19 March 2021
CATCHWORDS:	WORKERS COMPENSATION- whether, pursuant to section 60(2) of the 1987 Act, travel expenses incurred by the applicant were reasonably necessary; respondent had accepted liability for the medical expense, but for the reasons outlined in its section 78 notice; the option for the applicant to choose his own doctor also accepted; need for treatment established; Held- travel costs associated with the surgery were necessarily and reasonably incurred by the worker.
DIRECTIONS MADE:	1. The respondent pay the applicant’s travel expenses pursuant to section 60 of the Workers Compensation Act 1987 in the amount of $4,506.21.

Background

Mr Borg injured his back on 6 July 2010, the mechanism and occurrence of which is not in dispute and not relevant to the present dispute before the Commission.
What is relevant is the ongoing effect of that injury, which has led to significant complications, including 12 surgeries, all of which have been performed by Dr Coughlan. Dr Coughlan has been treating Mr Borg for the duration of his injury. On 16 November 2020, he performed a multilevel foraminotomy on Mr Borg.
Mr Borg lived in Gosford for most of the duration of the effects of his injury, and has been treated by Dr Coughlan in the Gosford area for that time. On an unknown date (but prior to the conduct of the surgery in November 2020), Mr Borg moved to Burrum Heads in Queensland.
The respondent accepted liability for the surgery, but have denied liability for all travel and associated accommodation expenses in travelling to Gosford from Burrum Heads. Mr Borg claims the amount of $4,506.21 in travel and accommodation expenses, made up of flights, car hire, and a hotel stay in Gosford during recovery from the surgery. Preapproval was initially sought for the cost of hotel quarantine in Queensland on return from surgery, but this was not claimed and, according to Mr Borg, was not required.

Issues in dispute

The sole issue in dispute is whether, pursuant to section 60(2) of the Workers Compensation Act 1987 (the 1987 Act), travel expenses incurred by Mr Borg were reasonably necessary.

The evidence

The evidence provided to me in this case is not particularly extensive. Given the narrow scope of the issues in dispute, this is understandable.
The applicant has provided a statement setting out in brief his treatment history, including that he has had 12 major operations with Dr Coughlan. In mid-2020, he complained of neck pain with some referred pain in the arm, as well as weakness. Surgery was recommended and was approved.
Dr Coughlan advised the applicant that there was no risk in travelling to Sydney to have the surgery (I note here that the surgery took place around the Gosford area, rather than in Sydney). I take, given the context of the dispute, that the reference to risks here…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 149
Decision Date: 19 March 2021

CaseChat Overview and Summary

Borg, the applicant, filed a claim against Aquarius NSW Pty Ltd, the respondent, for reimbursement of travel expenses incurred in relation to medical treatment. The dispute was heard and determined in the Dust Diseases Tribunal of New South Wales. The primary issue before the Tribunal was whether the travel expenses claimed by the applicant were reasonably necessary, as required by section 60(2) of the Workers Compensation Act 1987. The respondent had already acknowledged liability for the medical expense, with the exception of the reasons specified in their section 78 notice. Furthermore, the respondent had accepted that the applicant could choose his own doctor.

In determining the matter, the Tribunal considered the necessity and reasonableness of the travel expenses claimed by the applicant. The Tribunal noted that the need for treatment had been established and that the respondent had accepted the applicant's right to choose his own doctor. Consequently, the Tribunal concluded that the travel costs associated with the surgery were necessarily and reasonably incurred by the worker. The Tribunal found in favour of the applicant, ruling that the travel expenses claimed were reasonably necessary and therefore reimbursable under section 60(2) of the 1987 Act.

Orders