Kosteski v DXC Technology Australia Pty Limited

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Kosteski v DXC Technology Australia Pty Limited

Citation:

[2023] ACTMC 7

Hearing Date(s):

23 November 2022

DecisionDate:

24 March 2023

Before:

Magistrate Lawton

Decision:

Paragraphs [18] and [19].

Catchwords:

CIVIL LAW – EVIDENCE – Finding of Fact – Workers Compensation – Workers Compensation Plan – Psychological Injury – Disputed Expenses

Legislation Cited:

Cases Cited:

Workers Compensation Act 1951 (ACT) s.70(1)(a), 70(1)(c), 85A, 99A(2)

Mohammed v Onsite Formwork Pty Ltd [2015] ACTSC 416
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Parties:

Borche Kosteski ( Applicant)
DXC Technology Australia Pty Limited ( Respondent)

Representation:

Counsel
A Muller ( Applicant)
W Sharwood ( Respondent)

Solicitors
Maliganis Edwards Johnson (Applicant)
Hall & Willcox (Respondent)

File Number(s):

WC 170/2022

MAGISTRATE LAWTON:

Background

1․The applicant sustained a psychological injury in the course of his employment with the respondent and lodged a workers compensation claim. That claim remains accepted.

2․The application for Arbitration is limited to a dispute of payment of expenses claimed pursuant to section 70(1)(a) and (c) of the Workers Compensation Act 1951 (ACT) (“the Act”).

3․At the hearing on 23 November 2022 the parties advised that the disputed expenses could be narrowed to three categories:

a.Expenses for a personal trainer membership (personal trainer expenses);

b.Expenses incurred for psychological counselling provided by Dr Niah Wilson (psychological counselling expenses) and;

c.Rehabilitation services provided by “The Rehabilitation Specialists” (Rehab provider expenses).

4․Both parties referred me to the decision of His Honour Associate Justice Mossop (as he then was) in Mohammed v Onsite Formwork Pty Ltd [2015] ACTSC 416 and His Honour’s interpretation of section 70 of the Act at paragraph [44], in that reasonableness of the expenses has both a subjective and objective element. His Honour said:

[44] In my view the section is best interpreted as involving both subjective and objective components.  First, the worker must consider that the treatment is reasonable.  That is a subjective component.  It is likely to be easily satisfied as it would be extremely unlikely that a worker would undergo treatment which the worker did not consider to be reasonably required.  Second, the treatment must be objectively reasonably required in the sense that it must be shown that a reasonable worker in the circumstances of the actual worker would have considered it to be reasonably required.  That will exclude circumstances where the worker’s subjective belief as to the requirement for treatment was in fact an unreasonable one having regard to the material available.

5․There is no dispute that in respect to each of the above categories that the applicant subjectively considered the medical treatment received reasonable.

6․In considering the objective reasonableness of that medical treatment it seems to me it is necessary to consider the nature of the injury and the prognosis for recovery.

7․What also must be considered in my view is the Act’s intention in respect to a personal injury plan. “Personal Injury Plan” is defined in section 85A of the…