Borg v Aquarius NSW Pty Ltd
[2021] NSWPIC 149
•19 March 2021
| 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 concerned the effects of the COVID-19 pandemic. Having been treated by Dr Coughlan for an extensive period, Mr Borg preferred for him to perform the surgery. He was anxious about being treated by anyone else.
The only other relevant piece of evidence attached to the Application is a letter from Dr Coughlan dated 28 October 2020, in response to a request from the applicant’s solicitors. In that letter Dr Coughlan notes that it is preferable that surgery be carried out by him in New South Wales, on the basis that he performed prior surgeries.
Dr Coughlan noted Mr Borg’s anxiety about being transferred to a new surgeon, and noted that “it is well known that anxiety can greatly effect a patient’s pain experience negatively”. He notes that it is “essentially elective surgery and it would be unethical for a surgeon to operate on a patient who is not completely compliant”.
The respondent attached no evidence to their Reply, other than two section 78 notices which were also attached to the Application.
Submissions
The applicant
At the commencement of submissions, the applicant referred to a number of decisions, the only of which I could locate being Levett v Young Mining Company Pty Ltd [2007] NSWWCCPD 28. It was submitted that these cases refer to the reasonableness of an applicant seeing a doctor, including a medicolegal specialist. In one, the applicant travelled 600km to see a medicolegal specialist (as opposed to this case, which involves a treating surgeon) which was held to be reasonably necessary.
The applicant submits the it is even more reasonable for an applicant to see their doctor of choice where there have been numerous surgical procedures to the spine. The reasons why the applicant chose Dr Coughlan to operate are very clear, being the treating surgeon who has performed 12 operations on Mr Borg’s spine. Further, the reasonableness of the costs associated are supported by Mr Borg’s psychological state.
It was submitted that once Mr Borg chose Dr Coughlan, it was out of his control as to how he gets there. It was also noted that there was no issue as to quarantine. No claim for the costs of quarantine was made and Mr Borg did not need to quarantine on his return to Queensland.
It was noted, in regards to the modes of travel, that firstly the modes of travel were not disputed in the section 78 notice. The applicant travelled via business class and was transferred to and from his home and the airport, as well as to and from the airport in NSW to a hotel, via a limousine company. Secondly, in regards to the invoices that say limousine, that these were in fact comparable cost-wise to a taxi and were not in fact limousines, but akin to hire cars. The applicant submitted that for someone who has had 12 surgeries, it is obvious that it can be inferred that comfort is paramount.
The respondent
The respondent relied on the two section 78 notices. The respondent acknowledged that Dr Coughlan could be the doctor of choice.
In reference to the modes of travel, there was no evidence in the applicant’s claim that it was reasonable to fly (as opposed to driving) or that business class was necessary. The respondent referred to Dr Coughlan’s report (which I note was not attached to the Application or Reply) that recommended car travel.
In respect of the evidence provided by Dr Coughlan, it was submitted that he did not consider the risk of travelling during the border closure period. The respondent submitted that it was not reasonable to book the travel prior to the further review, and maintained the position that it was not advisable to travel during the time of a pandemic.
The respondent submits that if the surgery occurred in Queensland closer to the applicant’s residence, the costs of hotel accommodation would not have been included. The respondent submits that the costs should be limited to the costs of travel in the local area to Mr Borg, as if surgery had occurred in that area.
The applicant in response
In response, the applicant submitted that the respondent chose not to file reports that it has in its possession and tried to rely on them. In any event, it was submitted that those reports favour the applicant. The applicant objects to the report, or any contents of the report being included, and that if I did reference the report, I would give it minimal weight.
The applicant submitted that the section 78 notice was predicated on the fact that there were COVID-19 restrictions, when in fact there was complete freedom of movement.
The respondent, uninvited, provided additional submissions referencing the Commission’s general power to consider evidence, referring to the information available on the Queensland government’s website which showed that there were in fact border restrictions at the time of Mr Borg’s travel. The applicant, briefly in response, submitted that Mr Borg was not required to quarantine in spite of the respondent’s assertions to the contrary.
Decision
As indicated, this dispute concerns a discrete point and a claim for a relatively small expense. The respondent has accepted liability for the medical expense, but for the reasons outlined in its section 78 notice, maintains its dispute in relation to the travel costs associated with that medical expense.
This is in spite of the respondent accepting that Mr Borg is entitled to attend on the specialist of his own choosing, and in spite of the fact that it is clear that Dr Coughlan operates out of New South Wales only, and certainly not in Mr Borg’s local area.
I am somewhat perplexed by the position taken by the respondent’s solicitor in this case. Liability is accepted. The option for Mr Borg to choose his own doctor is accepted. The need for treatment is established. However, the respondent’s position means that Mr Borg has been required to pay for the travel to New South Wales, and associated costs, himself. The respondent accepts that it was necessary for Mr Borg to undergo the surgery and for him to choose Dr Coughlan, but has declined to pay for the costs associated with getting to that appointment. There is an internal inconsistency in this position.
I am also perplexed by the respondent’s actions in responding to the dispute lodged in the Commission. The only documents attached to the Reply were the original section 78 notice and the review notice. No further documents have been attached, although the respondent purported to rely on a report of Dr Coughlan that was not before me. In spite of this, negotiations broke down during the teleconference and the matter was unable to be resolved by agreement.
The crux of the respondent’s case seems to concern the position of the Queensland government concerning the New South Wales/Queensland border, which was purportedly closed at the time.
Firstly, that fact is disputed, and I have no evidence in that regard. As indicated, the respondent included no evidence (other than the section 78 notices) in their Reply. The respondent had the opportunity to lodge such evidence and chose not to. An inference can be drawn that it did not assist their case.
Secondly, I am not sure whether that is a relevant consideration. It is undisputed that the treatment was reasonably necessary. It is clear that Dr Coughlan was the most appropriate person to perform the surgery. It is accepted that Mr Borg is entitled to choose his own doctor. Dr Coughlan does not operate near Mr Borg’s new location, or even in Queensland, as far as the evidence indicates. The existence of border restrictions (to what extent is unclear) does not negate any of the above factors.
Thirdly, the respondent suggests that Mr Borg risked the health of members of the public in his decision to travel “against the advice of the QLD Government”. This suggestion not only paints Mr Borg in an unfairly untoward manner, but also attacks the credit of Dr Coughlan, who advised that there was no risk in travelling to have the surgery. The same can be said of the respondent’s submission that Dr Coughlan did not consider the risk of travel during the border closure period. I do not accept that a doctor would place himself, his staff, his other patients and the residents of New South Wales in a place of undue risk in order to perform surgery.
The section 78 notice dated 12 January 2021 records that Dr Coughlan is of the opinion that whilst it would be beneficial to have the surgery performed by him, there are competent neurosurgeons in the Hervey Bay area who could perform the procedure. Firstly, as the applicant pointed out, I do not have access to the report on which this conclusion is drawn. The respondent, for reasons unknown, attached nothing of relevance to the Reply filed. This has made the task more difficult.
Secondly, Dr Coughlan has clarified this remark in his report dated 28 October 2020, where he explains why it is preferable that he perform the surgery, including the anxiety suffered by Mr Borg and the potential that Mr Borg would not be fully compliant should another surgeon undertake the procedure.
Weighing that evidence against the unverified statement in the section 78 notice, I prefer the evidence available in the report dated 28 October 2020, which is justified and well-reasoned.
During the teleconference, the respondent raised an issue concerning the method of travel undertaken by Mr Borg, with particular focus on the purchase of business class travel. The respondent submitted that there was no evidence in the applicant’s claim that it was reasonable to fly or that business class was necessary.
I do not accept this submission. Firstly, the method of transport was not raised in the dispute notice. The respondent submitted that Dr Coughlan recommended car travel. This is not borne out by the evidence before me, and as previously discussed, the respondent did not file any evidence attached to the Reply.
Secondly, I accept the applicant’s submission that Mr Borg’s comfort was paramount. He was travelling to and from his 13th operation, with a clearly complex medical history. In all the circumstances, I am satisfied that the purchase of a business class flight was reasonably necessary.
Summary
The surgery undertaken by Dr Coughlan was reasonably necessary. There is evidence to support the fact that it was appropriate for Dr Coughlan to perform that surgery, as opposed to any other surgeon. The extent of the costs associated with that surgery (such as the purchase of business class airfares over economy) were not disputed in the section 78 notice, and in any event I am satisfied that they were, to use the language of section 60(2)(a) of the 1987 Act “necessarily and reasonably incurred by the worker”.
Accordingly, I direct the respondent to pay the applicant’s travel expenses pursuant to section 60(2) of the 1987 Act.
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