Mills v WorkCover No. Scgrg-97-1581 Judgment No. S115

MILLS v WORKCOVER CORPORATION & VOJDANI
[1999] SASC 115

FULL COURT: Millhouse, Prior and Duggan JJ

MILLHOUSE J. I agree with the answers proposed by Duggan J for the reasons he gives. I pause only to say that the answer to the first question which we have been obliged to give, based on our interpretation of the Act, is an unfortunate one: it may make it more difficult for workers to obtain reports as medical practitioners may be unwilling to provide them, if they are not to be adequately (in their view) paid for the work done. Patients will get only what they pay for and that may not be as comprehensive a report as it could be if medical practitioners believe the cap on their charges to be too low. Parliament may care to consider the matter, perhaps with a view to amendment.
PRIOR J. I agree with the answers proposed by Duggan J for the reasons he gives.
DUGGAN J. The applicant (Dr Mills) is a medical practitioner who provided a medical report to the solicitors acting for the second defendant (the worker) in order that they might advise the worker in relation to an application for compensation under the Workers Rehabilitation and Compensation Act (1986) (the Act). Dr Mills forwarded an account for the report to the worker’s solicitors. The charge for the report was $520.00. Subsequently Dr Mills received a letter from a claims agent acting on behalf of the Workcover Corporation (Workcover) which stated that the agent had made a determination to the effect that the report constituted a “medical service” as defined in the Act and that the recovery by the worker of the cost of such a service was governed by s32 of the Act. It was further stated that the cost of the report was subject to a scale of charges prescribed by regulations made under the Act and that, as the amount charged was in excess of the amount allowed by the scale, it would be reduced to $150.00.
Dr Mills filed a notice of dispute with the Workers Compensation Tribunal which sought a review of the determination made by the agent. He contended that the report was not a “medical service” as defined by the Act and that, even if it were, the cost of such a report was not covered in the scale set out in the regulations. At the time when the report was provided the relevant regulations were those which were gazetted on 25 January 1996 (the 1996 regulations). It would appear that Dr Mills provided other reports after 15 May, 1997 when new regulations (the 1997 regulations) had been substituted for the earlier regulations. The charges for those reports were reduced in a similar manner when they were submitted to the compensating authority.
The matter came before this court in December 1998 by way of a construction summons issued pursuant to SCR 63.02. There was some doubt as to the appropriateness of this procedure and the matter was adjourned. The parties then went before the Full Bench of the Workers Compensation Tribunal which stated a case for the consideration of this court.
The questions referred to us are set out in the case stated in the following form:
“9.1Is a decision made by a compensating authority that a medical report provided by a treating medical practitioner, at the request of a legal practitioner acting for a worker, is a ‘medical service’ for the purposes of section 32 of the Act, and is subject to regulations limiting the amount recoverable by the treating medical practitioner in respect of the provision of such a report, a reviewable decision pursuant to section 89A of the Act?
9.2If so, is the cost of a medical report provided by a treating medical practitioner to and at the request of a legal practitioner acting for a worker, a cost for which a worker is, pursuant to section 32 of the Act, entitled to be compensated?
9.3Do either or both of the 1996 Regulations and the 1997 Regulations provide a scale of charges for the provision of a medical report in the circumstances described in 9.2 above?
9.4If the answer is Yes to 9.3 above, are those Regulations ultra vires in so doing?”
The first question requires consideration of the dispute resolution procedure provided for in Part 6A of the Act. The procedure is concerned with decisions made by Workcover or exempt employers. Certain decisions are made reviewable and disputed decisions can be reviewed in the first place by Workcover or the exempt employer. In the event that the dispute is not resolved, there are provisions for conciliation and arbitration and, if the dispute remains, the matter may be referred to the Workers Compensation Tribunal for judicial determination.
I have referred to the role of s32 of the Act in relation to the recovery of the cost of medical expenses.   In so far as it is relevant, s32 provides as follows:
“Compensation for medical expenses
32. (1) Subject to this section, a worker is entitled to be compensated for costs of a kind described in subsection (2) reasonably incurred by the worker in consequences of having suffered a compensable disability-
(a)    in accordance with a scale prescribed 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 as follows:
(a)    the cost of medical services;
(b)... the cost of hospitalisation and all associated medical, surgical and nursing services;
(c)     the cost of approved rehabilitation;
(d)... the cost of travelling, or being transported, to and from any place for the purpose of receiving medical services, hospitalisation or approved rehabilitation (but not where the worker travels in a private vehicle);
(e)    where it is necessary for the worker to be accommodated away from home for the purpose of receiving medical services or approved rehabilitation - the cost of such accommodation (but not exceeding limits prescribed by regulation);
(f).... the cost of attendance by a registered or enrolled nurse, or by some other person approved by the Corporation or of a class approved by the Corporation, where the disability is such that the worker must have nursing or personal attendance;
(g)    the cost of the provision, maintenance, replacement or repair of therapeutic appliances;
(h)... the cost of medicines and other material purchased on the prescription or recommendation of a medical expert;
(i)     any other costs (or classes of costs) 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) Where 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.
(4a) A decision of the Corporation under subsection (4) is not reviewable.
(5) Where -
(a)... services of a kind to which this section applies were provided to a worker in relation to a compensable disability; and
(b)    the Corporation considers that the services were, in the circumstances of the case, inappropriate or unnecessary,

the Corporation may disallow charges for the services.
(6) Where the Corporation disallows or reduces a charge under this section -
(a) it must give to the provider of the service a notice setting out -
(i).... the basis of the Corporation's decision to disallow or reduce the charge; and
(ii)where the charge has been disallowed under subsection (5) the provider's right to have the decision reviewed under this Act; and

(b)... the worker is not liable to the provider for the disallowed charge, or for more than the reduced charge, (as the case requires) and, if the worker has in fact paid an amount for which he or she is not liable, the Corporation will reimburse the worker for that amount and may recover it from the provider as a debt.

. . .
(10) The amount of compensation for a service covered by a scale of charges prescribed under this section must be in accordance with the scale.
(11) The Governor may, by regulation, prescribe -
(a)... scales of charges for the purposes of this section (ensuring as far as practicable that the scales comprehensively cover the various kinds of services to which this section applies);
(b) treatment protocols for treatment of disabilities of particular kinds.
(12) A scale of charges prescribed under this section must be based on the average charge to private patients for the relevant service (but the amount fixed for the service must not exceed the amount recommended by the relevant professional association).

. . .”

Section 89A, which is to be found in PART 6A, defines those decisions which are reviewable.   It states:
“(1) The following decisions are reviewable -
(a)    a decision on a claim for compensation including -
(i)     a decision redetermining a claim; or
(ii)a decision on a claim by the Tribunal, made in the exercise of the Tribunal’s special jurisdiction to expedite decisions on claims;
(b)    a decision about the nature of rehabilitation services provided, or to be provided, for a worker;
(c)     a decision to vary, suspend or discontinue weekly payments;
(d)    a decision on an application by an employer to have weekly payments payable to a worker employed by, or formerly employed by, the employer reviewed;
(e)     a decision to disallow or reduce a charge for a medical service (unless the decision merely brings the charge into conformity with a rate of charge prescribed by regulation).
(2)However, a decision is not reviewable if declared not to be reviewable by or under the Act.”
It was suggested in argument that there was an inconsistency between s32(4a) and s89A(1)(e). However, it is my view that these provisions can be read together so as to harmonise with each other and with the apparent intention of the legislation. It is appropriate to have regard first to s89A(1)(e). The section refers to two types of decision in relation to a charge for a medical service: disallowance of a charge and reduction of a charge. The qualification in parentheses could refer only to a reduction of a charge and it contemplates a decision which would reduce the amount allowed down to that which is prescribed by regulation.
It would seem that s32(4a) achieves the same result as the qualification in s89A(1)(e). It declares that a decision under subsection (4) is not reviewable. Subsection (4) contemplates no more than a comparison between the actual charge and the “amount that the worker is entitled to claim” for the provision of the service. If the former is higher than the latter it may be reduced to the level of the prescribed rate.
No doubt there might be other reasons for disallowing or reducing a charge, such as where the costs were not reasonably incurred as required by s32(1). Furthermore, s32(5) provides that the Corporation may disallow charges which are inappropriate and unnecessary. These decisions would be reviewable under s89A(1)(e). However there is a clear distinction between decisions of this nature and an adjustment to the level of the prescribed amount of an otherwise proper charge.
The question in the case stated isolates two steps which the compensating authority took in reaching its ultimate decision in relation to the amount charged in the present case, but leaves out of consideration the end result that the amount charged was to be reduced. Neither of the “decisions” referred to in the case, namely, that the provision of the medical report is a “medical service” and that the charge for it is subject to the regulations, answers the description of any of the decisions which are reviewable under the Act. Subject to the qualification in s89A(1)(e), the only potentially reviewable decision in the present case is a decision to disallow or reduce a charge for a medical service. Affirmative answers by the compensating authority to the two matters identified in the first question of the case stated as “decisions” can be no more than necessary steps along the way to a disallowance of a fee in excess of that permitted by the scale in the regulations.
Mr Gray QC took his argument beyond the issues raised in the first question of the case stated. He contended that the decision which was made in the present case was a decision to reduce a charge for a medical service and it was therefore reviewable under s89A(1)(e). He said that the decision was not excluded from review by the qualification in that subsection because it went beyond a mere adjustment. It was a decision which gave rise to the need to determine whether the charge was for a “medical service” and whether such charge was covered by the regulations. A decision which required consideration of those matters could not be described as one which merely brought the charge into conformity with a rate of charge prescribed by regulations.
In my view this argument should be rejected. Every decision to reduce a charge for a medical purpose requires a preliminary finding that the charge is for a medical service as defined by the Act and that it comes within the scale of charges prescribed by the regulations. The word “merely” in the qualification is apt to describe such decisions and to distinguish them from decisions to reduce a charge for medical services for some other reason. Section 32 contemplates that Workcover is to make decisions on whether costs are reasonably incurred and a reduction might be made in the performance of this function. The reduction in such a case would not be made on the basis that the charge was being brought into conformity with a rate of charge prescribed by regulations.
I repeat, however, that the preliminary steps identified in the first part of the case stated are not, in themselves, reviewable decisions under the Act.
I would answer “No” to the first question.
The second and third questions raised in the case stated are concerned with the two issues of construction referred to in the above answer. The second question assumes an affirmative answer to the first question. However, in view of the arguments which were presented in relation to this issue, I think it is appropriate for the court to address the question. It asks whether the cost of a medical report obtained at the request of a worker’s legal adviser can be recovered pursuant to s32 of the Act.
Included in the items which can be compensated under this section is “the cost of medical services” (s32(2)(a)). “Medical services” are defined in s3 as meaning:
“attendance, examination or treatment by a medical expert (including the obtaining from a medical expert of a certificate or report).”
In my view this definition, considered alone, is wide enough to include a report prepared at the request of a worker’s legal adviser to enable advice to be given in relation to a claim for compensation under the Act. However Mr Gray QC, for Dr Mills, and Mr White QC, for Workcover, have argued that the context in which “medical services” are referred to in s32 requires a more restrictive interpretation in order to reflect the nature and purpose of that part of the Act.
Mr Gray argued that the definition of “medical services” contemplates only those certificates and reports which are specifically referred to throughout the Act. Mr White stressed the importance of reading the definition section and s32 in the context of the Act and he contended that only those services directly related to medical treatment were to be compensated under s32. According to the argument, the only certificates and reports with which the section is concerned are those which were part of the medical treatment of the worker. It was said that this was supported by the nature of the other expenses which were compensable under s32. Mr White adopted as an alternative argument Mr Gray’s assertion that the certificates and reports were those specifically referred to elsewhere in the Act.
I do not think that it was the intention of the legislature to restrict the definition of “medical services” in the manner suggested by Mr Gray. Reports and certificates are a common, everyday concomitant of medical practice. It would be surprising, in my view, if the drafter of the legislation was prepared to allow those descriptions to remain unqualified in the Act if the intention was to limit the compensation provided for in s32 to certificates and reports required by the Act.
I also reject the argument that the certificate or report must be tied to some aspect of treatment provided by a medical expert. Whilst it must be conceded that the other items of expenditure which are specifically referred to in s32 are directly related to treatment, it cannot be ignored that the “medical services” referred to in s32(2)(a) are defined elsewhere in the Act. The definition section makes specific reference to medical certificates and reports and in a manner which does not confine them to treatment. The aspect of treatment is referred to in the definition, but as an alternative to attendance and examination. The words in parentheses in the definition are not confined to treatment. This is consistent with medical practice; a certificate or report is usually linked with an attendance or an examination. There is a further difficulty with the argument in that, whereas a report to another medical expert might be considered as being in the course of treating a patient, the same could not generally be said of a certificate. Mr White attempted to overcome this difficulty by suggesting that the terms “certificate” and “report” were used interchangeably in the definition section. However these documents are different in nature and their separate functions are well recognised in the Workers Compensation jurisdiction.
The issue raised by the second question in the case stated was considered by the Full Bench of the Workers Compensation Tribunal in Hillier v Workcover Corporation (Festival State Security) (Senior Judge Jennings, Judge Cawthorne and Acting Judge Gilchrist, unreported judgment number J.D. 4/1997 delivered 15 April 1997). In Hillier’s case the solicitors for the worker obtained a report from a psychologist, not as part of any treatment, but for medico-legal purposes. It was held that the cost of obtaining the report was a cost for which the worker was entitled to be compensated pursuant to s32.
The tribunal rejected the argument that the common factor of treatment present in the other items of expenditure in s32 should restrict the meaning of “medical services” to treatment related functions. The tribunal also pointed out that the word “treatment” in the definition section of the Act was expressed as an alternative and so did not govern exclusively the meaning of “certificate” and “report” which were referred to in the same section. The tribunal drew attention to the requirement in s32(1) that the costs must be reasonably incurred by a worker in consequence of having suffered a compensable disability. It was noted that this provision guards against frivolous claims for costs and ties the report to the purposes of the legislation.
I respectfully agree with these views. Furthermore, I do not accept the argument that a medico-legal report obtained in these circumstances could not be regarded as being in consequence of suffering a compensable disability. The causative link required by s32(1) is plainly evident.
It was also suggested during argument that the Act had made provision for the award of costs in s95 and that this was the appropriate section under which to claim for an expense such as a medical report. However, as Ms Kelly for the worker pointed out, costs can be awarded only in disputed matters. Compensation for the cost of a medico-legal report at an early stage, and perhaps before a dispute has arisen, goes some way towards reducing litigation and adversarial contests, one of the objects of the Act stated in s2(1)(f). (See Hillier supra at p5).

In my view the wording of the relevant sections, the nature and purpose of the legislation and the decision of the specialist tribunal in Hillier’s case all support the view that the second question should be answered “Yes”.
The third question requires little comment. Mr Gray QC argued that the regulations did not prescribe a fee for a report which was ordered by the worker for his legal representative. The argument was based on a note to both the 1996 and 1997 regulations to the following effect:
“The requestor may be a WorkCover Claims Agent, a Self Managed or Exempt Employer.”
It was pointed out that the note does not refer to the worker and it was argued that it is exhaustive of the circumstances giving rise to a claim.
As Mr White QC pointed out, the regulations deal with a variety of medical services, most of which would be carried out at the behest of the worker. There is no need, therefore, to state the obvious and refer to workers as requestors. The note does no more than clarify the fact that the schedule also applies where the requestor is one of the persons identified therein.
In my view the third question should be answered “Yes”.
The final question asks whether the regulations are ultra vires. The regulation making power is in s32(11) which provides:
“The Governor may, by regulation, prescribe -
(a)... scales of charges for the purposes of this section (ensuring as far as practicable that the scales comprehensively cover the various kinds of services to which this section applies);
(b) treatment protocols for treatment of disabilities of particular kinds.”
If I am correct in expressing the view that a medical report of this nature is a medical service, the costs of which can be the subject of a compensation order under s32, then it follows that the inclusion of a fee for such a service in the scale of charges was a proper exercise of the regulation making power.
I would answer the fourth question “No”.
I have concluded that it would be appropriate to answer all questions, despite the fact that the first question has been answered in the negative.
In summary, therefore, I would answer the questions asked in the case stated as follows:
1 “No”
2 “Yes”
3 “Yes”
4 “No”.

[1999] SASC 115

24 March 1999