Chris Waller Racing Pty Ltdv Muscutt - [2016] NSWWCCPD 57

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Chris Waller Racing Pty Ltdv Muscutt [2016] NSWWCCPD 57
APPELLANT:	Chris Waller Racing Pty Ltd
RESPONDENT:	Peter Muscutt
INSURER:	Racing NSW
FILE NUMBER:	A1-788/16
ARBITRATOR:	Mr T Wardell
DATE OF ARBITRATOR’S DECISION:	12 May 2016
DATE OF APPEAL DECISION:	21 November 2016
SUBJECT MATTER OF DECISION:	Operation of s 60(2A) of the Workers Compensation Act 1987, entitlement of worker to recover the cost of medical treatment, namely surgery, when surgery performed without prior notice to insurer and liability to pay compensation benefits generally including s 60 expenses is later accepted by the insurer in respect of the injury giving rise to the need for surgery; meaning and effect of s 60(1) and sub-s (2A) of the Workers Compensation Act 1987 and cl 3.2.1.2 of the WorkCover Guidelines for Claiming Compensation Benefits
PRESIDENTIAL MEMBER:	Acting Deputy President Larry King SC
HEARING:	On the papers
REPRESENTATION:	Appellant:	Turks Legal
Respondent:	Law Partners
ORDERS MADE ON APPEAL:	1. Order 2 of the Arbitrator’s Determination of 12 May 2016 is confirmed.

INTRODUCTION

This appeal concerns the meaning and effect of s 60(2A) of the Workers Compensation Act 1987 (the 1987 Act) and of the relevant exemptions set out in the WorkCover Guides for Claiming Compensation Benefits (the Guidelines) in a straight forward factual situation which was not in dispute.

BACKGROUND

That factual situation can be stated, to a large extent chronologically, as follows.
Peter Muscutt, the respondent to this appeal, was a senior employee of the appellant, Chris Waller Racing Pty Ltd. On 13 January 2015, Mr Muscutt suffered a back injury in the course of his employment and experienced worsening symptoms thereafter.
On 19 January 2015, Mr Muscutt presented at the Norwest Private Hospital (having been driven there by his partner), and was referred to a neurosurgeon, Dr Owler, who advised him to undergo spinal surgery.
That same day, upon getting home from the hospital Mr Muscutt reported what had happened to his employer who encouraged him to have the operation provided he could be back at work on the following Monday.
Also apparently that same day, as set out in para 16 of his evidentiary statement, Mr Muscutt:
“… also telephoned Racing NSW to report the injury and requirement for surgery. They were not happy and demanded that I go to a GP and get a referral to see Dr Owler so they can consider approving the referral. I agreed to fill in some forms for them and I scanned them to them.”
On 20 January 2015, Mr Muscutt was contacted by Dr Owler’s rooms and informed that the spinal surgery could take place the next day, upon the basis that Dr Owler wanted that to happen. The closing three sentences of para 17 of his evidentiary statement are “… I advised her that I had reported it to Racing NSW but did not have approval. She said well the doctor wants to do the…

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: [2016] NSWWCCPD 57
Decision Date: 21 November 2016

CaseChat Overview and Summary

Chris Waller Racing Pty Ltd was the insurer of a racing stablehand, Mr Muscutt, who sustained an injury that resulted in the need for medical treatment. Mr Muscutt underwent surgery without prior notification to the insurer. After the insurer accepted liability to pay compensation benefits, including section 60 expenses, the dispute arose over whether Mr Muscutt could recover the costs of the surgery from the insurer. The dispute was brought before the Supreme Court of New South Wales. The primary legal issue was whether the insurer, Chris Waller Racing, was liable to pay the costs of the surgery under section 60(2A) of the Workers Compensation Act 1987. Another issue was the interpretation and effect of section 60(1) and subsection 2A of the Act, as well as clause 3.2.1.2 of the WorkCover Guidelines for Claiming Compensation Benefits.

The court examined the plain language of section 60(2A) of the Workers Compensation Act 1987, which provides that an insurer is liable to pay compensation benefits, including section 60 expenses, if it is later found that the worker was entitled to receive such benefits. The court found that the plain language of the section indicated that the insurer was liable to pay the costs of the surgery, even though the surgery was performed without prior notice to the insurer. The court also considered clause 3.2.1.2 of the WorkCover Guidelines, which aligns with the statutory provisions, and confirmed that the insurer was liable for the costs of the surgery. The court held that the insurer was liable to pay the costs of the surgery under section 60(2A) of the Workers Compensation Act 1987. The court confirmed Order 2 of the Arbitrator’s Determination of 12 May 2016, which found that the insurer was liable to pay the costs of the surgery.

Orders

Orders of the court

1. Order 2 of the Arbitrator’s Determination of 12 May 2016 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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