Kosteski v DXC Technology Australia Pty Limited
[2023] ACTMC 7
•24 March 2023
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 |
| Parties: | Borche Kosteski ( Applicant) |
| Representation: | Counsel Solicitors |
| 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 Act as:
“personal injury plan", for a worker, means a plan for coordinating and managing the aspects of injury management that relate to medical treatment and rehabilitation services for the worker to achieve a timely, safe and durable return to work for the worker”.
8․In the applicant’s medical evidence bundle are the reports of Mr Tom Sutton, Psychologist, dated 14 July 21, together with a neuropsychological assessment dated 23 November 2021 and a supplementary report dated 18 May 2022. In addition, Dr Ventura prepared a report dated 28 July 2022. Both have noted that the applicant’s condition has been resistant to treatment so far.
9․Both Mr Sutton and Dr Ventura recommend ongoing psychological and psychiatric treatment. In addition, both recommend exercise-based treatment.
10․In particular Dr Ventura notes at page 9 of her report that the recommended treatments (including Transcranial Magnetic Stimulation, or TMS) are urgent and that there is extensive evidence that prolonged periods of depression cause permanent change in the structure of the brain which make recovery more difficult.
11․Having considered this evidence, and the intention that the personal injury plan coordinate a timely, safe and durable return for the applicant to employment, it seems to me that both the personal training expenses and psychological counselling expenses are objectively reasonable in terms of section 70, having regard to the serious nature of the applicant’s injury and the prognosis if the treatment is not implemented.
12․I do not accept the insurer’s submission that the exercise is not a core component of the applicant’s treatment. As referred to above, the evidence before me suggests that exercise will assist in combination with the other recommended treatments. In the applicant’s circumstances, his prognosis is poor without all of the recommended therapies.
13․In respect to the psychological counselling session, the applicant was cross-examined as to the substance of what was discussed in the psychological counselling sessions being related to the ongoing claim for compensation as opposed to treatment for his injury. This was rejected by the applicant. I accept his evidence in this regard, noting that the counsellor was not called and further the limitations a court should have when interpreting the notes of a medical practitioner – see paragraph [8] of Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 per Basten JA.
14․Thus, I determine that the personal trainer expenses and psychological counselling expenses are medical treatment reasonably received within s 70 of the Act.
15․The Rehab provider expenses however would not in my view fall within the remit of section 70 (1)(c). This is because the insurer is required under s99A (2) to appoint an approved rehabilitation provider if the worker has not returned to their pre-injury duties within 4 weeks. There is nothing as far as I can see in Chapter 5 of the Act, or in the regulations, which allows the worker to nominate another approved rehabilitation provider.
16․Thus, I determine that the rehab provider expenses are not rehabilitation services provided under the personal injury plan pursuant to s 70(1)(c).
17․I do observe however, that perhaps the insurer may consider contributing to the expense incurred by the applicant given the services applied by the alternative rehabilitation provider seem to have helped achieve the intentions of what a personal injury plan should achieve by reference to that term’s definition in s 85A of the Act.
18․I make the following orders:
(1) the personal trainer expenses are reasonably incurred under s 70(1)(a) of the Act;
(2) the psychological counselling expenses are reasonably incurred under s 70(1)(a) of the Act; and
(3) “The Rehabilitation Specialist” expenses incurred are not rehabilitation services provided pursuant to s 70(1)(c) of the Act.
19․Following the handing down of my reasons I heard from the parties as to costs. The order I make is that the Respondent pay the costs of the Applicant for the arbitration.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Decision of His Honour Magistrate Lawton. Date: 27.03.2023 |
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