Giameos v Return to Work Corporation of South Australia

[2019] SASCFC 161

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

GIAMEOS v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA

[2019] SASCFC 161

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Lovell)

23 December 2019

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - PRELIMINARY REQUIREMENTS - CLAIMS FOR COMPENSATION - TIME FOR CLAIM

Appeal against a decision of the Full Bench of the South Australian Employment Tribunal concerning entitlements to the costs of medical treatment pursuant to s 33 of the Return to Work Act 2014 (SA) (the RTW Act).

A worker’s entitlement to compensation for medical expenses, conferred by ss 33(1) and (2) of the RTW Act, is limited, by s 33(20), to expenses incurred in the period ending 12 months from the date on which his or her entitlement to weekly payments came to an end (the prescribed period).

The appellant suffered an injury to his left foot in 2014 for which he underwent surgery. In 2017, further surgical treatment was approved by the respondent. The recommended post-operative rehabilitative program was also approved by the respondent but only until 27 June 2018, being the date on which the prescribed period came to an end for the appellant.

The appellant contends that the prescribed period may be, in effect, extended by the making, and acceptance, of an application that the Corporation agree in advance to be liable to pay a worker’s medical expenses pursuant to s 33(17) of the RTW Act. The Full Bench held that the approval which the Corporation can give in advance, pursuant to s 33(17), is limited to medical costs incurred in the prescribed period.

The appellant contends on his first ground of appeal that pre-approval pursuant to s 33(17) confers an entitlement to the costs of medical expenses which are incurred beyond the prescribed period and that that entitlement is preserved by s 33(20) of the RTW Act. The second ground, that s 33(20) of the RTW Act was not properly applied, rises or falls with the first ground.

Held per curiam, dismissing the appeal:

1. On a proper construction of s 33(17) of the RTW Act, it allows for pre-approval of only those entitlements which are conferred on a worker by ss 33(1) and (2). It does not provide a stand-alone entitlement. It is therefore subject to the time limitation prescribed by s 33(20) of the RTW Act.

Return to Work Act 2014 (SA) s 33, referred to.
Giameos v Return to Work Corporation of South Australia [2019] SAET 55, discussed.

GIAMEOS v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2019] SASCFC 161

FULL COURT:  Kourakis CJ, Blue and Lovell JJ

1. THE COURT: This is an appeal from a decision of the Full Bench of the South Australian Employment Tribunal (SAET) concerning entitlements to the costs of medical treatment pursuant to s 33 of the Return to Work Act 2014 (SA) (the RTW Act). A worker’s entitlement to compensation for medical expenses, conferred by ss 33(1) and (2) of the RTW Act, is limited, by s 33(20), to expenses incurred in the period ending 12 months from the date on which his or her entitlement to weekly payments came to an end (the prescribed period).

2. The appellant, Mr Giameos, suffered an injury to his left foot on 1 February 2009.  He underwent surgery but his recovery was poor.  In 2017, a medical specialist recommended further surgical treatment, which was approved by the Return to Work Corporation (the Corporation) on 14 March 2018.  That specialist also recommended a post‑operative gait re-training rehabilitative program.  On 11 April 2018, the Corporation approved that rehabilitation, but only until 27 June 2018, being the date on which the prescribed period came to an end for Mr Giameos.

3. Workers whose circumstances fall within s 33(21) of the RTW Act are entitled to medical expenses beyond the prescribed period. For reasons which are not necessary to explain, Mr Giameos accepts that he cannot rely on s 33(21) of the RTW Act because his injury, having occurred before the commencement of the RTW Act, was an existing injury for the purposes of the RTW Act. The period in which he could make an application pursuant to s 33(21) expired well before 27 June 2018.

4. Mr Giameos contends that the prescribed period may also be, in effect, extended by the making, and acceptance, of an application that the Corporation agree in advance to be liable to pay a worker’s medical expenses pursuant to s 33(17) of the RTW Act. He submits that he was ‘entitled’ to apply for the Corporation’s pre-approval of the costs of the recommended rehabilitation treatment even though he was to undergo, and incur the expense for, the rehabilitative treatment after the period prescribed by s 33(20) of the RTW Act, because he had made an application for that pre-approval before the prescribed period came to an end. The Full Bench of the SAET held that the approval which the Corporation can give in advance, pursuant to s 33(17) of the RTW Act, to be liable for medical costs, is limited to medical costs incurred in the prescribed period.[1] Mr Giameos contends on his first ground of appeal that pre‑approval pursuant to s 33(17) confers an entitlement to the costs of medical expenses which are incurred beyond the prescribed period and that that entitlement is preserved by s 33(20) of the RTW Act. Mr Giameos’ second ground, that s 33(20) of the RTW Act was not properly applied, rises or falls with his first ground.

   [1]    Giameos v Return to Work Corporation of South Australia [2019] SAET 55 at [25].

5. We would dismiss the appeal.  Our reasons follow.

   The application

6. On 22 March 2018, Mr Giameos’ solicitor wrote to the agent for the Corporation, Employers Mutual Ltd (EML), making an application pursuant to s 33(17) of the RTW Act in the following terms:

   This is an application pursuant to s 33(17) of the Return to Work Act 2014 for pre‑approval of funding of gait retraining post‑left foot exploratory surgery under the care of Dr Philip Griffin.

   Details of the need for this service or expense are set out in the report of Dr Griffin dated 20 February 2018 addressed to EML.

   …

   The application is being made in advance of the surgery taking place to ensure there is a proper post‑surgical programme available to our client to enable him to have the best chances of deriving benefit from the left foot surgery (already approved).

7. It will be observed that the application did not assert that Mr Giameos had already incurred an expense for the surgery or for the post‑operative rehabilitation. It is not necessary, therefore, to consider whether a worker is entitled, pursuant to s 33(1) of the RTW Act, to costs incurred prior to the expiration of the prescribed period, even though the treatment is to be provided only after its expiration.

8. On 11 April 2018, EML replied:

   I confirm that EML are happy to provide approval for Nicholas to attend treatment with a physiotherapist to assist with gait retraining post his left foot explanatory surgery which is be [sic] undertaken by Dr Philip Griffin.

   Please note that this expense will only be funded until 27/06/2018 as Nicholas’s entitlement to medical expenses will cease effective 28/06/2018 as per the attached letter.

   Construction of s 33 of the RTW Act

9. Section 33 of the RTW Act relevantly provides:

   33—Medical expenses

   (1) Subject to this section, a worker is entitled to be compensated for costs of services described in subsection (2) that are reasonably incurred by the worker in consequence of having suffered a work injury—

   (a)     in accordance with a scale published by the Minister under this section; or

   (b)     if the relevant service is not covered by a scale under this section—to the extent of a reasonable amount for the provision of the service.

   (2) The costs referred to in subsection (1) are the necessary costs of:

   (a)     medical services;

   (b)     hospitalisation and all associated medical, surgical and nursing services;

   (c)     approved recovery/return to work services;

   …

   (g)     the provision, maintenance, replacement or repair of therapeutic appliances;

   (h)     medicines and other material purchased on the prescription or recommendation of a health practitioner;

   (i)      other services (or classes of services) authorised by the Corporation.

   (3) Compensation in respect of costs to which this section applies may be paid—

   (a)     to the worker; or

   (b)     directly to the person to whom the worker is liable for those costs.

   (4) If a worker has been charged more than the amount that the worker is entitled to claim for the provision of a service in respect of which compensation is payable under this section, the Corporation may reduce the charge by the amount of the excess.

   …

   (6) If—

   (a)     services of a kind to which this section applies were provided to a worker in relation to a work injury; and

   (b)     the Corporation considers that the services were, in the circumstances of the case, unnecessary or unreasonably incurred,

   the Corporation may disallow charges for the services.

   …

   (11) The amount of compensation for a service covered by a scale of charges published by the Minister under this section must be in accordance with the scale.

   …

   (17) A worker is entitled, in relation to prescribed classes of services, appliances, medicines or materials referred to in subsection (2), to apply to the Corporation for approval to obtain the provision of those services or otherwise to incur costs on the basis that the Corporation will agree in advance to be liable for the relevant costs rather than the worker being required to claim compensation under this section once the costs have been incurred.

   (18) An application under subsection (17) must be made in accordance with the regulations and the Corporation must make a decision in relation to the application within the period prescribed by the regulations.

   (19) The Corporation must give the same consideration to an application under subsection (17) that would be given to an application if the worker were to incur the relevant costs and then claim compensation under subsection (1).

   (20) Subject to subsection (21), an entitlement to compensation under this section (including an entitlement to make an application under subsection (17)) comes to an end if the worker has not had an entitlement to receive weekly payments in relation to the work injury under Division 4 for a continuous period of 12 months (or has not had an entitlement to receive weekly payments under Division 4 and a period of 12 months has expired) (insofar as costs are incurred after the end of that period).

   (21) Subsection (20)—

   (a)     does not apply in relation to a seriously injured worker; and

   (b)     does not apply—

   (i) in relation to any therapeutic appliance required to maintain the worker's capacity; or

   (ii) in relation to surgery, any associated medical, nursing or medical rehabilitation services (including the cost of hospitalisation), where the Corporation has determined or accepted, on application made before the end of the period referred to in subsection (20), that it is reasonable and appropriate for such surgery to be undertaken at a later time due to the impact (or likely impact) of the work injury on the worker's health and capacity (or future health and capacity); or

   (iii) in relation to prescribed classes of injury, where the Corporation has determined or accepted, on application made before the end of the period referred to in subsection (20), that it is reasonable and appropriate for the services to be provided after the end of that period (and then, in such a case, the services will be compensable to the extent determined by the Corporation); or

   (iv) in any other circumstances prescribed by the regulations.

   (22) The right of review referred to in subsection (7)(a)(ii) is a right to have the decision of the Corporation to disallow or reduce a charge reviewed by the Tribunal by application to the Tribunal under the South Australian Employment Tribunal Act 2014.

10. An entitlement to compensation for the purposes of ss 33(1) and (2) arises when, on the application of those subsections to a compensable injury, a worker has a right to a payment of compensation for the costs of his or her medical treatment.

11. Subsections (1) and (2) are clumsily drafted. The condition on which the entitlement is conferred by sub-s (1) is that the ‘costs of services’ are reasonably incurred. Section 33(2) then further qualifies the worker’s entitlement by defining the ‘costs of services’ to be only the ‘necessary’ costs of those services. It is difficult to see how a necessary cost can ever be unreasonably incurred. Parliament’s intention is revealed by the subsequent subsections of s 33, which allow the Corporation to determine what can be charged for certain treatment, and to disallow the medical provider’s costs if they exceed the amounts prescribed.[2] From those subsections it appears that sub-ss (1) and (2) are intended to have the same effect as the single test expressed in s 33(6) of the RTW Act. The compound test for disallowance in that sub-section is that the services were ‘unnecessary or unreasonably incurred’. Even that expression is marred by a solecism. Costs may be incurred but services are either provided or procured. Properly expressed, the test for the purposes of ss 33(1) and (2), and s 33(6), must be that medical services are reasonably procured, and that no more than the costs necessary to procure those services are incurred.

    [2] RTW Act ss 33(4), (6), (11).

12. The effect is to condition a worker’s right to compensation and the right of a medical provider to his or her fees on the reasonableness of the treatment provided, and on the necessity of the payment to procure that reasonable treatment.  If that condition is not met, the Corporation may, in its discretion, disallow the charges, or not fully compensate the worker for the costs incurred.[3]

    [3] RTW Act ss 33(4), (6), (11).

13. We now turn to the proper construction of s 33(17) of the RTW Act.

14. Section 33(17) confers what is described as an ‘entitlement’ to obtain an approval pursuant to that subsection. The word ‘entitlement’ appears to be used loosely. The ‘entitlement’ is, in terms, a procedural right, or privilege, to make an application. Whether or not s 33(17) of the RTW Act confers anything more than an alternative procedure to claim the entitlement conferred by s 33(1) of the RTW Act is the issue on this appeal.

15. On its face sub-s (17) provides no more than an alternative procedure. The application is one for approval to obtain agreement ‘in advance’ from the Corporation to be liable, rather than claiming ‘under this section’. The only claim which can otherwise be made under s 33 of the RTW Act, and the only liability to which the Corporation is exposed, is for the entitlement given by s 33(1) for compensation for incurred costs. Section 33(17) of the RTW Act, on its face, therefore merely allows an opportunity to have that entitlement determined in advance of the incurring of the cost.

16. The ‘liability’ to which s 33(17) of the RTW Act refers cannot be the Corporation’s liability to a medical provider, who at that time might not yet have been selected, or if selected, may be replaced by another. Section 33 of the RTW Act does not anywhere impose a liability on the Corporation directly to a medical provider. Section 33(3) of the RTW Act provides that the Corporation may discharge its liability to a worker by either making a payment to the worker or to the person ‘to whom the worker is liable’.  It does not impose a liability on the Corporation directly to the medical provider.  

17. The expansive construction of s 33(17) of the RTW Act for which Mr Giameos contends would give it an operation which, in some cases, would outflank s 33(21). The exemptions provided for by s 33(21) of the RTW Act are carefully drafted. Subparagraph (a) is calculated to confer an ongoing entitlement to seriously injured workers. Subparagraph (b)(i) is calculated to preserve an entitlement to the costs of therapeutic appliances which will maintain a worker’s capacity for employment. The exemptions in subparagraphs (b)(ii) and (iii) particularly tell against Mr Giameos’ construction. Both require the application to be made in the same period as that prescribed by s 33(20) of the RTW Act but approval will only be given if it is reasonable to obtain the treatment, at a later time, having regard to the future impact of the injury on the worker’s health. It is unlikely that Parliament would have so carefully circumscribed those exemptions if it had intended s 33(17) of the RTW Act to allow approval generally of the costs of any medical services incurred after the prescribed period.

18. The most obvious purpose of s 33(19) of the RTW Act is to make it clear that the decision as to whether or not to approve costs, pursuant to s 33(17), is to be made on the same basis that an entitlement to compensation for costs already incurred is determined for the purposes of s 33(1), that is, on the basis that it is reasonable to obtain the treatment and the costs are the necessary costs of that treatment. The effect of s 33(19) of the RTW Act is that the Corporation must agree in advance to be liable to compensate the worker after the costs are incurred, if the conditions placed on the payment of compensation by ss 33(1) and (2) are met. The purpose of s 33(17), therefore, appears to be to allow the worker an opportunity to make an informed choice about whether to obtain, and incur the costs of, medical treatment.

19. Another substantial difficulty with Mr Giameos’ construction is that it would require an evaluation of a number of considerations over and above those which arise on a s 33(1) claim for retrospective compensation. Those considerations include just how far into the future predictions should be made about what treatment is reasonable, and what costs are necessary. Those questions are fact-sensitive. The reasonableness of medical treatment which is proposed to be given soon after the end of the prescribed period might be relatively easy to determine. However, it is much more difficult to decide on the reasonableness of medical treatment proposed to be given long after the end of the prescribed period. The result would be to cloud the prescribed period with an irregular and uncertain penumbra.

20. The words in parenthesis in sub-s (20) are more naturally read as a provision for the avoidance of any doubt. The ‘entitlement to make an application’, notwithstanding the misuse of the word ‘entitlement’, refers only to the procedural privilege conferred by s 33(17) of the RTW Act. Those words make it clear that s 33(17) of the RTW Act allows only applications which are brought within the prescribed period. It therefore reinforces the construction that an independent entitlement is not conferred.

    Conclusion

21. The combined force of the abovementioned indications show that, on a proper construction of s 33(17) of the RTW Act, it allows for pre‑approval of only those entitlements which are conferred on a worker by ss 33(1) and (2). It does not provide an additional stand-alone entitlement. It is therefore subject to the time limitation prescribed by s 33(20) of the RTW Act.

22. We would dismiss the appeal.