Mohammed v Onsite Formwork Pty Ltd
[2015] ACTSC 416
•18 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Mohammed v Onsite Formwork Pty Ltd |
Citation: | [2015] ACTSC 416 |
Hearing Date: | 17 December 2015 |
DecisionDate: | 18 December 2015 |
Before: | Mossop AsJ |
Decision: | See [61] |
Catchwords: | WORKERS’ COMPENSATION – Appeal from Industrial Court – section 70 of the Workers Compensation Act 1951 (ACT) – entitlement to reimbursement of expenses for medical treatment reasonably received in relation to work injury – test of reasonableness requires subjective and objective assessment – appeal allowed – agreed amount awarded for medical expenses |
Legislation Cited: | Magistrates Court Act 1930 (ACT) ss 291P, 291Q Workers Compensation Act 1951 (ACT) ss 36B, 70, 197 Court Procedures Rules 2006 (ACT) rr 3964, 3970 |
Cases Cited: | Malek v Remondis Australia Pty Ltd [2015] ACTSC 135 |
Parties: | Ahmed Ismail Mohammed (Appellant) Onsite Formwork Pty Ltd (Respondent) |
Representation: | Counsel Mr S Pilkinton SC (Appellant) Mr G Stretton SC (Respondent) |
| Solicitors Capital Lawyers (Appellant) King & Wood Mallesons (Respondent) | |
File Number: | SCA 44 of 2015 |
Decision under appeal: | Court/Tribunal: Industrial Court of the Australian Capital Territory Before: Industrial Magistrate Walker Date of Decision: 5 May 2015 Case Title: Mohammed v Onsite Formwork Pty Ltd Court File Number: WC 106 of 2014 |
Introduction
This is an appeal from the Industrial Court of the Australian Capital Territory in relation to a decision made under the Workers Compensation Act 1951 (ACT) (the Act).
On 5 May 2015 the Industrial Court made the following findings:
(a)the worker’s employment “was connected with the Australian Capital Territory on the basis that that was where he usually worked at the relevant time”;
(b)the worker suffered a minor injury to his right knee on 22 September 2011;
(c)the injury was not productive of any incapacity and the Court was not satisfied that medical treatment was required despite the fact that it was obtained;
(d)there was no entitlement to compensation pursuant to the Act.
Notice of Appeal
The notice of appeal was filed on 22 May 2015.
Only one ground of appeal was pursued at the hearing, the other being abandoned. The ground of appeal that was pursued was:
[H]er Honour erred in law in finding that whilst the appellant suffered an injury on 22 September 2011 he was not entitled to recover the costs of medical treatment arising from the injury despite the fact that it was obtained.
Section 197 of the Act provides that if the Magistrates Court “gives a decision or makes an order or award” in relation to any matter that may be or is required to be settled by arbitration under the Act, any party to the arbitration may appeal from the decision, order or award to the Supreme Court. Plainly enough, the Industrial Court did not make an award in favour of the appellant. It did make a decision. It may have made an order but the order is not included in the appeal book even though it is referred to in the index. The appeal states that it is an appeal against orders. This is an issue to which I will need to return below.
The nature of an appeal to this Court from the Industrial Court is an appeal by way of rehearing. The relevant authorities as to the approach to be taken in such an appeal are summarised in Malek v Remondis Australia Pty Ltd [2015] ACTSC 135 at [6]-[14] (‘Malek’). While that decision describes the position in relation to the Magistrates Court the fact that this decision was made by the Industrial Court does not affect the position as the Industrial Court is simply the name by which the Magistrates Court is known when exercising jurisdiction under various Acts including the Workers Compensation Act 1951 (ACT): Magistrates Court Act 1930 (ACT) ss 291P, 291Q.
Decision below
The proceedings were heard by the Industrial Court on 4 and 5 May 2015. The appellant gave evidence and was cross-examined by senior counsel for the respondent. Although an interpreter was sworn the appellant appears to have been able to give evidence with only occasional assistance from the interpreter. The oral evidence of the appellant took up the whole of the first day of the hearing. Expert medical reports of Associate Professor Paul Miniter and Dr John Bentivoglio, both orthopaedic surgeons, as well as various records prepared by the appellant’s treating doctors were tendered. No expert was required for cross-examination. On the second day of the hearing an adjournment was sought by the appellant in order to obtain further documentary evidence relating to medical expenses as well as to call as a witness, the appellant’s cousin, who would have given evidence about persuading the appellant to go back to Sydney for treatment following the injury. The application for an adjournment so as to permit the appellant’s cousin to be called was refused. Her Honour indicated that further documentary evidence would be able to be provided subsequently in the event that she found in favour of the appellant as to the injury and the need for medical treatment. Submissions were then made and proceedings were adjourned so that her Honour was able to consider her decision and give it later in the afternoon.
In the course of his submissions to the Magistrate, senior counsel for the appellant made specific reference to the entitlement to reimbursement of medical expenses pursuant to s 70 of the Act. He indicated that there was agreement in terms of quantum for the medical expenses if liability was established. He anticipated that in the event that liability was established the appellant would be able to provide evidence of his hospital costs which would lead to an agreement as to quantum which could be provided to the Magistrate following her decision.
In the course of his submissions senior counsel for the respondent said:
In terms then your Honour of what findings your Honour should make, I have dealt, and it’s my submission, that your Honour could not make positive finding as to the manner or way in which any injury was sustained and that there has been a failure of the applicant to discharge the onus of proof which he bears on that issue.
If your Honour is against me on that, then the cost of the arthroscopy is clearly to be awarded, as are the receipts which became exhibit 10, exhibit 9 and 10, I think they were, would clearly need to be awarded. As to incapacity, in my submission, your Honour would not be satisfied of any incapacity other than perhaps for a matter of weeks at most, following the arthroscopy.
Exhibits 9 and 10 referred to in this portion of the transcript were a receipt for an MRI performed on 19 March 2015 and two receipts from Dr Vijay Maniam, an orthopaedic surgeon, for consultations in March 2015.
In her reasons for decision her Honour articulated the contentions of the respondent as follows:
The respondent contends that the ACT is not the proper Territory of connection for this injury, that no injury was suffered as claimed and consequently that the worker has suffered no compensable incapacity or need for medical treatment.
Her Honour noted that no issue was taken as to whether the appellant was in fact a “worker” as defined in the Act.
Her Honour then addressed the facts and law relating to the issue of whether or not the Territory was the Territory or State of connection for the purposes of s 36B of the Act. Her Honour ultimately concluded that the appellant’s employment was connected with the Australian Capital Territory on the basis that that was where he usually worked at the relevant time.
Her Honour then summarised the evidence that had been given by the appellant, in particular that after the operation in 2012 he spent six or seven months without working and then did not work between November 2012 and March 2015. She also referred to his evidence that he had commenced doing light work for about 20 hours a week from March 2015. She referred to his evidence about the limitations on what he could do and then addressed the surveillance video footage of the appellant from October, November and December 2014. In the light of that evidence, which was inconsistent with the appellant’s evidence, her Honour said that she treated his evidence regarding symptoms and incapacity with some caution.
Her Honour then discussed the evidence of Dr Samiul Sorrenti, an orthopaedic surgeon, including the positive McMurray’s test which she described as a test which would produce a click on rotation of the foot in a particular position evidencing a tear of the medial meniscus. She noted his record from 25 February 2012 that there was still a small effusion compared to the left knee and his opinion that MRI imaging was unreliable in respect of chondral pathology and referred to his conclusion about the small tear in the posterior horn of the medial meniscus plus or minus chondral damage in that area. She referred to his operation report of 7 March 2012 and the review consultation with Dr Sorrenti on 10 May 2012.
Her Honour then referred to events almost three years later, namely, the second MRI in March 2015 and the assessment by Dr Bentivoglio. She summarised the terms of his report and his conclusion that the grade 3 chondral damage in the retro-patellar region of the right knee and chondral loose bodies were caused by the incident of 22 September 2011. She recorded that Dr Bentivoglio could not explain why Dr Sorrenti’s findings on arthroscopy were not seen on the MRI scan. She referred to the reference in the report on the second MRI scan of some features relating to an old injury and to the worker having undergone a medial partial meniscectomy. Her Honour noted that this was not the surgery which was described as having been performed by Dr Sorrenti.
Her Honour then turned to the evidence of Associate Professor Miniter. She summarised his report of 3 February 2012 including his statement that there was no evidence of injury, that the appellant was normal on physical examination and that he had no evidence of intra-articular pathology. She also noted that Dr Miniter had noted that Dr Sorrenti’s letters were difficult to follow. He found no fluid on the knee and no discomfort on the patellar femoral joint or evidence of McMurray’s test. He concluded that the appellant was immediately fit to return to work without restriction. He recorded in relation to the MRI: “This is a very sensitive test and would demonstrate an effusion if it were present”. She said that Dr Miniter strongly recommended against further treatment. She then referred to the supplementary report of 28 October 2014. Her Honour noted Dr Miniter’s assessment that the findings upon arthroscopic surgery were “those of a normal knee”. Her Honour then referred to Dr Miniter’s assessment that there was significant voluntary alteration in muscle strength but no palpable or observable wasting.
Her Honour’s conclusions were stated in the last four paragraphs of her decision as follows:
In summary, based upon a complaint of pain and swelling which is self-reported it appears, must be questionable in light of observations as to credit and against the background of a normal MRI scan Dr Sorrenti proceeded to arthroscopic surgery on the worker having explained to him that “The surgery basically creates an environment for the healing to occur and the actual surgery does not cause any healing.” Based on Dr Sorrenti’s findings during the arthroscopy, Dr Bentivoglio expressed the opinion that the worker had suffered a permanent injury which could not be improved by any further treatment and noted significant physical limitations as a result.
He then provided information based on the more recent MRI scan which disclosed that the worker has had some sort of surgery, being a medial partial meniscectomy with no explanation as to when it took place or why. This somewhat abstruse evidence sits in stark contrast to the opinion of Associate Professor Miniter who expressed the view that clinical assessment, MRI examination and even having regard to the findings of Dr Sorrenti objectively showed no evidence of the worker having suffered any pathology in the incident of 22 September 2011 producing incapacity or requiring treatment.
Associate Professor Miniter’s assessment is consistent with what is observed on the surveillance video taken very shortly thereafter. It also sits against the background of other significant but unexplained the pathology disclosed in the report of Dr Bentivoglio referring to the MRI.
It follows that whilst I am satisfied that the worker may well have suffered a minor injury to his right knee on 22 September 2011 I am not satisfied that it was productive of any incapacity or that medical treatment was required despite the fact that it was obtained. I find that there is no entitlement to compensation pursuant to the Act.
The steps disclosed in the reasoning are as follows:
(a)The complaint of pain and swelling was self-reported and was questionable.
(b)There was a normal MRI in 2012.
(c)Dr Sorrenti proceeded to surgery.
(d)Dr Bentivoglio expressed the view based on Dr Sorrenti’s findings during arthroscopy that there was a permanent injury.
(e)The information based on the more recent MRI scan suggested a medial partial meniscectomy with no explanation as to when it took place or why.
(f)There was a stark contrast with the opinion of Associate Professor Miniter based on clinical assessment, MRI examination and the findings of Dr Sorrenti which showed no evidence of any pathology in the incident producing incapacity or requiring treatment.
(g)Associate Professor Miniter’s assessment was consistent with the 2014 surveillance taken shortly after the consultation with him in 2014 and existed against the background of significant but unexplained pathology disclosed in the recent MRI.
It can therefore be seen that her Honour reached her conclusion based significantly upon the acceptance of Associate Professor Miniter’s report of 2014 in preference to that of Dr Bentivoglio of 2015. Obviously enough, neither of those reports were available at the time when Dr Sorrenti recommended surgery to the appellant.
Consistently with the manner in which the matter was argued before her, her Honour gave no separate consideration to the nature of the precondition to liability, namely, that the medical treatment be “reasonably received in relation to the injury”.
Section 70
Section 70 of the Act provides, relevantly:
70 Employer liability for medical treatment etc
(1) The employer is liable to pay—
(a)in relation to the cost of medical treatment reasonably received in relation to the injury—an amount of compensation appropriate for the provision of the medical treatment, having regard to the charges customarily made for similar medical treatment where the treatment is received; and
...
Appellant’s submissions
The appellant placed particular reliance upon the chronology of the medical evidence as follows.
The injury occurred on 22 September 2011.
On 20 October 2011 the appellant’s general practitioner, Dr Arafa Yehia, gave a referral to Dr Sorrenti:
Presenting Problem:
Work related injury of Rt knee on 22/9/11, twisted Rt knee at work, swelling + pain over medial side.
Past History:
None recorded.
On 25 October 2011 Dr Sorrenti reported to Dr Yehia in the following terms:
Thank you for asking me to see Ahmed. I saw him at Liverpool on the 25 October 2011.
As you said this young man sustained an injury to his right knee about 3 weeks ago. He does form work and basically as he went back on his leg he felt something tear. He has had a lot of pain and swelling in his right knee since then. It has not settled down. He has no past history of having had any problems with his right knee before that.
Physical examination today clinically he has a tear of the posterior horn of his medial meniscus. There is an effusion, quite marked medial joint line tenderness and a positive McMurray. I have asked him to have a MRI scan once he has had that we will most probably need to do an arthroscopy.
I will keep you informed.
The appellant placed reliance upon the report of “effusion” and the positive McMurray’s test.
On 15 December 2011 Dr Sorrenti reported to Dr Yehia again including:
The MRI scan has been reported as relatively normal but clinically I am confident he has an intra substance tear of the medial meniscus plus or minus some chondral damage. I think there is some irregularity medial femoral condyle and also possible retro patella surface.
The worrying feature at the moment he still has a significant effusion in his right knee. My advise [sic] he will need to have an arthroscopy. I have given the patient the necessary information relating to the arthroscopy, possible outcome, rehabilitation and possible complications. I have explained to the patient the surgery basically creates an environment for healing to occur and that the actual surgery does not cause any healing and the overall outcome will depend very much on the degree of damage and the ability of the knee to recover and as such unfortunately there are no guarantee of an excellent result. The surgery will need to be followed by a fairly intensive rehabilitation programme. I will keep you informed.
On 23 February 2012 Dr Sorrenti reported to Dr Yehia again following a review:
He still has problems with his right knee. The worrying features the right knee still looks as if there is a small effusion compared to his left knee and again as I said before I think the major problem at this stage is either a small tear in the posterior horn of his medial meniscus plus or minus some chondral damage in that area. The MRI scan especially with chondral pathology is unreliable my major concern he still has symptoms Ahmed feels he has not gotten any better if anything he is getting worse and he should have an arthroscopy purely and simply because he is still having problems and clinically he still has an effusion with postero medial joint line tenderness.
The letter continued to discuss possible outcomes in similar terms to that of 15 December 2011 and referred to a request for approval from the insurer.
The operation was performed on 7 March 2012. The operation report was in evidence. That report indicated a pre-operative diagnosis of “[r]ight knee tear medial meniscus and patellofemoral chondral damage” and a post-operative diagnosis of “[r]ight knee Grade III chondral damage patella and chondral loose bodies.”
The other documents in relation to the operation indicated findings of:
Chondral Grade III lesion/splitting of the patella.
Chondral Grade II lesion of the trochlear groove.
On 20 March 2012 Dr Sorrenti reported to Dr Yehia:
The right knee is not doing [too] badly the only problem with him the quadriceps are weak. He promises me he will finally do some exercises rather [than] just thinking about it and he should be back to normal within a month and if there are any problems I will see him then.
On 10 May 2012 after a further review Dr Sorrenti reported to Dr Yehia:
He is still struggling with his right knee. There is no doubt he has been working hard on strengthening his quadriceps his quadriceps have improved. I think the major problem at this stage is more muscle imbalance. I have asked him to go to physio to have a program known as the McConnell program with the taping. If that helps then we know it is muscle imbalance and he will settle down. I will see him in a month and hopefully by then he should be able to return to work.
In March 2015 there was a further MRI and he saw another treating orthopaedic surgeon, Dr Maniam.
The appellant submitted that the Magistrate erred in preferring the evidence of Dr Miniter which was contrary to that of Dr Sorrenti and Dr Bentivoglio without any rational basis for so deciding: see Malek at [143]-[144]. The appellant pointed to the apparent concession by senior counsel for the respondent that the cost of the arthroscopy and receipts would “clearly [need] to be awarded” in the event that the submission that the appellant had not discharged his onus of proving that the incident occurred was not accepted.
The appellant submitted that he had sought medical treatment as a direct consequence of the injury and that he reasonably accepted and acted upon the medical advice of his general practitioner and treating orthopaedic surgeon.
In the event that the appellant was successful he claimed medical expenses as set out in a schedule of medical expenses based upon the various documents that were in evidence.
Respondent’s submissions
The respondent submitted that the most significant fact was that the appellant had been found to have lied concerning his alleged incapacity and ability to work as demonstrated by the video evidence that was played during the course of the hearing.
As a consequence the respondent submitted that her Honour was correct in finding that the injury did not cause any pathology requiring treatment and that the operation took place against the background of a normal MRI scan and was correct in accepting the evidence of Dr Miniter. Ultimately the respondent contended that the test in s 70 of reasonableness was one which was purely objective so that if having regard to Dr Miniter’s evidence, her Honour formed the view that treatment was not required then it did not matter that the appellant might, on the basis of advice of his specialist and treating doctor, have reasonably believed that such treatment was necessary and hence undertaken it.
Consideration
Two points should be made at the outset. First, the manner in which the case was run before the Magistrate was to place emphasis on two issues: the State or Territory of connection and whether or not the appellant was telling the truth about the extent of his incapacity over the years from late 2011 until the hearing. It is quite understandable that the issue of medical expenses was one which received little attention either in the submissions or in the reasons for decision. Second, in the absence of any doctor giving oral evidence, the evidence did not provide to a lay person unfamiliar with pathological conditions of the knee a detailed understanding of the various species of pathology of the knee referred to in the evidence so as to enable the various reports and opinions that described the condition of the appellant’s knee at different times to be understood or assessed.
Operation of s 70
Neither the appellant nor the respondent referred me to any authority in this Court or elsewhere that would assist in the interpretation of the phrase in s 70 “medical treatment reasonably received”. The respondent’s submission was that what was reasonable was a purely objective test. The effect of that submission was that even though an injured worker might take a subjectively reasonable approach to medical treatment if that treatment was ultimately shown to have been not necessary then the Court would be required to conclude that the medical treatment had not been reasonably received for the purposes of s 70. That submission appears to be consistent with the approach taken by the Magistrate insofar as her reasons disclose her approach.
I do not accept the submission that the test of reasonableness is a purely objective one. In my view the reference to “reasonably received” should not be interpreted as either a purely subjective or purely objective criterion. It should not be purely subjective because it would then include medical treatment considered by the worker to be reasonable even if a reasonable person or persons acting reasonably in the position of the worker would not have considered it to be reasonable and it was not in fact reasonable. Similarly, it should not be interpreted as being a purely objective criterion because if that was the case then excluded from the scope of s 70 would be any treatment ultimately shown to have not been necessary even if the worker believed on reasonable grounds at the time that it was necessary.
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.
Application of s 70 in the present case
In the present case the history described by the documentary records relating to the treatment of the appellant was consistent with him receiving reasonable advice from qualified persons that he should undergo arthroscopic surgery. The only contemporaneous factor that would suggest that the surgery was not a reasonable course was the report of Dr Miniter. That report was dated 3 February 2012. The report is quite emphatic in its statement that there was no evidence of any intra-articular pathology and that the “claims are spurious and unable to be supported by objective evidence”. He appears to have been briefed with Dr Sorrenti’s letters but found them “difficult to follow”. On examination he could find no evidence of McMurray’s test and no abnormalities. He said that there was “no evidence on the investigations that an effusion has been diagnosed objectively and today there is no evidence of an effusion”. He said that while there was an effusion noted by Dr Sorrenti its presence had not been confirmed by objective evaluation: “In particular, the MRI is normal. This is a very sensitive test and would demonstrate an effusion if it were present.” In relation to the right knee arthroscopy as recommended by Dr Sorrenti he said: “The right knee arthroscopy is [contraindicated] and there is no basis upon which such an investigation should be performed”.
There is some evidence that this report was sent to the appellant. Annexed to the application for arbitration was the letter rejecting the appellant’s claim for workers’ compensation. That letter which was dated 17 February 2012 annexed a copy of Dr Miniter’s report. Having regard to the date it is likely that it came to the attention of the appellant prior to undertaking the surgery on 7 March 2012. However that fact alone does not demonstrate in my view that the undertaking of the surgery was not medical treatment reasonably received by the appellant. First, there was no cross-examination of the appellant relating to the receipt of Dr Miniter’s report or his state of mind at the time when he undertook the surgery. It was therefore not suggested to him that he should have both understood the report that he was sent and altered his conduct because of that report. Second, it is not necessarily unreasonable for a worker to accept the advice as to appropriate diagnosis and treatment of his treating doctors in preference to the opinion of a medical practitioner engaged by an insurance company who has explained at the commencement of his interview the purposes of an independent medicolegal examination and indicated that he was “not a treating doctor and that [he] was not able to provide any advice”. That was the case with Dr Miniter and the quote is a quote from his report of 3 February 2012.
The material that has subsequently become available, in particular Dr Miniter's second report and the reports of Dr Bentivoglio, is not sufficient in my view to demonstrate that a reasonable person in the position of the appellant would not have undergone the procedure in 2012.
Finally, I do not accept the submission of the respondent that the gap between the accident and the first attendance at the appellant’s general practitioner is a fact which is of significance in assessing whether or not the medical treatment was reasonably received. There was no cross-examination of the appellant (or other evidence) that suggested that there was some other cause for his knee condition or that the delay in seeing the medical practitioner was of any significance.
In summary, so far as the records disclose, the treating specialist had detected objective signs which led to his opinion that arthroscopic surgery was necessary. The appellant appears to have accepted the clear advice from the treating specialist and subjected himself to an arthroscopic procedure for which he had to pay out of his own pocket as a result.
While it is not entirely clear, the Magistrate appears to have proceeded upon an erroneous view of the operation of s 70, namely, that it was a purely objective criterion and hence whether or not medical treatment was reasonably received could be determined merely by a preference for one expert opinion over another. In any event in my view the Magistrate erred in failing to find that the medical expenses associated with the treatment by Dr Sorrenti were expenses for medical treatment reasonably received within the scope of s 70. I do not consider that her Honour’s rejection of the reliability of the appellant’s evidence permitted the conclusion that the treatment was not reasonably received. The treating specialist, Dr Sorrenti, found objective signs namely effusion and a positive McMurray’s test which led to his recommendation for arthroscopic surgery. Further, insofar as it might be suggested that the “self reported” and hence, on her Honour’s findings, unreliable, symptoms led to the surgery it appears to me to be highly unlikely that the appellant fabricated his complaints to the extent to which he was prepared to subject himself to surgery and pay for that surgery himself in circumstances where he knew that the insurer had rejected his claim in order that he may ultimately pursue a claim for incapacity several years later. In my view, accepting her Honour’s rejection of incapacity and her conclusion that medical treatment was not, as a result of her preference for the opinion of Dr Miniter, in fact required, her Honour ought to have found that the receipt of that treatment was medical treatment reasonably received in relation to the accident on 22 September 2011. That is because it was medical treatment that the appellant subjectively believed was required and, having regard to the opinion of Dr Sorrenti disclosed in the evidence, it was a belief that objectively had a reasonable basis.
Quantum
The schedule of medical expenses claimed by the appellant includes fees for the surgeon and anaesthetist for the operation on 7 March 2012 as well as consultations with Dr Yehia which took place on 22 May 2012 subsequent to the surgery. In relation to these expenses it appears to me that there is likely to be some overlap in the amounts claimed. The schedule included some consultations in March 2015 and the MRI in 2015. I am not satisfied that those amounts are recoverable having regard to the unchallenged rejection of the appellant’s claim of ongoing injury. In my view the 2015 consultations cannot be found to be reasonable for the purposes of s 70 in the light of the findings of an absence of any ongoing incapacity at that time.
In relation to the March 2012 surgery there appears to be an overlap between the amount of $1,871.50 claimed based on an invoice from “The Surgery Centre” and the amount claimed based on a Medicare benefits schedule of $496.10 for arthroscopic surgery. Both of those appear to relate to the same item number namely item 49561 and relate to a provider identified as Dr Sorrenti. There is an unexplained asterisk next to the item number on the invoice from The Surgery Centre. The Medicare benefits schedule identifies both the charge and the benefit as being $496.10 which is inconsistent with the actual charge being $1,871.50. However having regard to the identity of the item number and provider it is more likely that the $496.10 is the Medicare benefit in relation to an overall charge of $1,871.50.
In relation to the costs of the anaesthetist which total $119.20 there are two possibilities. First that they are somehow incorporated in the $1,871.50 fee notwithstanding the reference to the particular item number and provider on the invoice from The Surgery Centre or alternatively the appellant was bulk billed for those amounts and hence there was no need to separately refer to them on the invoice from The Surgery Centre or otherwise. Having regard to the evidence that is available to me and the unexplained asterisk on The Surgery Centre invoice I will treat the anaesthetist charges as being separate charges which were bulk billed and which should be included in the award.
In relation to the charges made by Dr Yehia for his consultations on 22 May 2012 the Medicare benefits schedule indicates that they are for different item numbers but the full description of those item numbers is cut off on the document that was tendered. The consultations occurred approximately two weeks after the final consultation with Dr Sorrenti. In my view those follow-up consultations with his general practitioner post surgery were reasonably incurred expenses and should be the subject of an award.
On this approach the quantum of the award should therefore be $2,239.40.
Because the quantum of the award was not the subject of oral submissions and in case there is some aspect of the medical documentation that I have overlooked I will hear the parties further if necessary on the quantum of the award.
Conclusion
Having regard to my findings above the appeal must be allowed and the decision of the Industrial Court set aside. Subject to any further submissions on the issue of quantum, it should be substituted with an award in favour of the appellant in the sum of $2,239.40.
Costs
In the event that he was successful, the appellant sought his costs both of the appeal as well as of the proceedings before the Magistrate. The respondent submitted that in that event only a proportion of the costs of the proceedings in the Industrial Court should be awarded having regard to the failure of the appellant on his principal claim for loss of income.
The principal contests at the hearing were first whether or not the Territory was the State or Territory of connection for the purposes of s 36B of the Act and second whether or not the appellant was being truthful in relation to his ongoing limited capacity for work. The appellant was successful on the first issue and unsuccessful on the second issue.
Whilst there is a possibility that had the only liability in issue been that related to medical expenses then the Territory of connection issue might not have been a barrier to the compromise of the proceedings (on, if nothing else, a commercial basis) prior to the hearing, I do not think that I should act on that basis in the absence of some evidence that the workers’ compensation insurer was prepared to make any concession. In those circumstances I consider the appropriate order is that the appellant have his costs both of the appeal and of the proceedings before the Magistrate. I will however give the opportunity for either party to be further heard on the issue of costs if there is evidence of settlement offers relevant to the question of costs.
Proposed orders
If the parties do not wish to be further heard on the two issues that I have identified above then the orders of the Court will be to the following effect:
The appeal is allowed and the decision, order or award of the Industrial Court on 5 May 2015 is set aside and the following orders made instead –
1. The appellant is directed under r 3964 of the Court Procedures Rules 2006 (ACT) to prepare an award consistent with the decision of the Supreme Court on 18 December 2015 in his favour in the sum of $2,239.40.
2. The respondent is to pay the appellant’s costs of the appeal and of the proceedings before the Industrial Court.
However particularly in the light of the reference in the appeal book index to the existence of orders and their absence from the appeal book I will hear the parties as to the appropriate form of order having regard to the terms of rr 3964 and 3970 of the Court Procedures Rules 2006 (ACT).
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 27 January 2016 |
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