Stowe Australia Pty Ltd v Kelly
[2012] ACTSC 34
•March 9, 2012
STOWE AUSTRALIA PTY LTD v SARA MELODY KELLY
[2012] ACTSC 34 (9 March 2012)
WORKERS COMPENSATION – Workers Compensation Act 1951 – appeal from Magistrates Court – application to Magistrates Court by employer for leave to reject claim – application refused – whether “claim” in s 132 means claim for a single injury or claim for each payment of compensation or medical treatment expense – “claim” has former and not latter meaning – whether s 132 available to insurer where no current demand by worker for weekly compensation on treatment – application properly refused – appeal dismissed.
Workers Compensation Act 1951, Pts 4.2, 4.5, 6.1, 6.2, 6.3, 6.4. Ss 31, 36, 70, 71, 116, 120, 120A, 121, 123, 128,129, 130, 131, 132, 134, 137, 184, 195, 197, 222, 223
Court Procedures Rules2006, Pt 3.13. Rr 3907, 3913
Workers Compensation Regulation 2002, Pt 7. Ss 48, 49, 50, 51, 56, 57, 99
Magistrates Court Act 1930, s 276
Legislation Act 2001, ss 126, 138, 139, 140, 141
M & M Rolfe Cleaning Services Pty Limited v Schneider (1997) 130 ACTR 61
Seers v Exhibition Centre Pty Ltd (2009) 232 FLR 415; [2009] ACTSC 85.
No. SC 17 of 2011
Judge: Master Harper
Supreme Court of the ACT
Date: 9 March 2012
IN THE SUPREME COURT OF THE )
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE ) No. SC 17 of 2011
MAGISTRATES COURT )
BETWEEN:STOWE AUSTRALIA PTY LTD
Appellant
AND:SARA MELODY KELLY
Respondent
ORDER
Judge: Master Harper
Date: 9 March 2012
Place: Canberra
THE COURT ORDERS THAT:
the appeal be dismissed
the cross-appeal be allowed, the order below that the parties bear their own costs be set aside, and in lieu thereof it be ordered that the appellant applicant pay the respondent’s costs of the application to the Magistrates Court.
the appellant pay the respondent’s costs of the appeal.
This is an appeal from a decision of a Magistrate dismissing an insurer’s application for leave to reject a claim by a worker for compensation under s 132 of the Workers Compensation Act 1951.
The factual background
In July 2007 the respondent injured her left knee when she fell from a desk at her place of work, sustaining major bruising. She reported the incident and injury to the appellant employer but did not seek medical advice. There is no evidence that she took any time off work, and the incident was not reported to the workers’ compensation insurer.
On 26 October 2007 she hurt her knee again while alighting from a van in the course of her employment as an apprentice electrician. She completed a workers’ compensation claim form on 31 January 2008, in which she described the injury as “left knee, sprain/strain?” and described the incident in the following words: “While getting out of the work van my knee gave way on impact”. She gave notice to the appellant employer of the injury promptly. The reason for the delay in lodging a claim with the insurer was that her early expectation that she would make a full recovery did not eventuate. The knee got worse. She needed some time off work and a considerable amount of treatment including physiotherapy and arthroscopy by an orthopaedic surgeon. She also underwent psychological counselling.
She was referred by her general practitioner to an occupational physician, Dr Garth Eaton. Dr Eaton reported to the insurer in March 2009. He expressed the opinion that the leg injury, diagnosed radiologically as a split along the tibial plateau with chondromalacia of the left knee, had probably occurred when she fell from her desk. He thought that she had recovered sufficiently to be able to resume normal duties although it might be another month before she could resume full overtime hours. She did not at the time he saw her require any treatment apart from continuing with an exercise and stretching regime. She should avoid heavy lifting, and should take regular breaks if required to squat for extended periods. She should use common sense and vary her posture frequently in the course of her work. She no longer had any significant knee pain.
Dr Eaton described the injury of October 2007 as a significant injury: the respondent had been unable to move, had had considerable difficulty in standing up from squatting, and had complained of severe knee pain.
On 26 March 2008 the insurer wrote to the respondent acknowledging receipt of the claim and confirming “that liability has been accepted for time lost from work”.
By the time the insurer made its application to the Magistrates Court on 19 July 2010, compensation of $338.67 had been paid to the respondent to compensate her for time off work during June and August 2008, and $29,826.65 had been paid for treatment and rehabilitation. The last of the treatment expenses was incurred in March 2009, although one could not conclude from Dr Eaton’s report that the plaintiff had by then made a complete recovery, or indeed that she would ever do so.
The application
On 19 July 2010 the solicitors for the appellant, on instructions from the insurer, filed in the Magistrates Court an application for arbitration, said to be pursuant to r 3907 of the Court Procedures Rules 2006. Rule 3907 provides that an employer or insurer may ask that a claim be decided by arbitration by filing an application stating briefly but specifically the claim to be arbitrated.
The application was described as an application for arbitration about the rejection by the applicant of the respondent’s claim for compensation, with reference to s 132 of the Workers Compensation Act. Paragraph 1 of the application gave the date and place and circumstances of the injury. The date given was 26 October 2007. Paragraphs 2, 3, 4 and 5 set out the nature of the injury and details of the compensation previously paid. The application listed the following grounds for the application:
6. The respondent is no longer incapacitated for work.
Further, and in the alternative, any incapacity that the respondent may have for work is not as a consequence of her employment with the applicant.
The respondent no longer requires medical treatment.
Further, and in the alternative, any medical treatment required by the respondent is not as a consequence of her employment with the applicant.
On 10 August 2010 the respondent’s solicitors filed an answer, pursuant to r 3913 of the Court Procedures Rules. The substance of the answer was as follows:
1. The respondent denies the claim by the applicant that it is entitled to terminate the respondent’s compensation benefits on the following grounds:
1.1 The respondent suffered injury on the 11th of July 2007 and/or the 26th of October 2007 arising from her employment with the applicant.
1.2 The respondent continues to be incapacitated due to the injury that arose from her employment with the applicant on the 11th of July 2007 and/or the 26th of October 2007.
1.3 The respondent continues to require medical and other treatment in relation to the injury that arose from her employment with the applicant on the 11th of July 2007 and/or the 26th of October 2007.
1.4 The respondent is a worker to whom the Workers Compensation Act1951 applies.
2. The respondent admits the following particulars of the application: 2, 3, 4 and 5.
3. The respondent denies the following particulars of the application: 6.
The legislative provisions
The Workers Compensation Act1951 establishes and regulates a no-fault system of compensation for private-sector employees injured in employment-related circumstances. Similar although not identical systems operate in the other Australian jurisdictions, and a somewhat different system applies to Commonwealth and Territory public servants. As Miles CJ recorded in M & M Rolfe Cleaning Services Pty Limited v Schneider (1997) 130 ACTR 61, the ACT was without such a scheme until 1931 when the first Workmen’s Compensation Ordinance came into force. That ordinance was replaced in 1946 and again in 1951. The 1951 ordinance became an Act upon self-government but the present Act bears little relationship to it, having been extensively amended with effect from 1 July 2002.
Section 31 provides that an employer is liable to pay compensation under the Act if a worker suffers personal injury arising out of, or in the course of, his or her employment.
Section 70 makes the employer liable to pay, in relation to the cost of medical treatment reasonably received in relation to an 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.
Section 116 provides that a worker may claim compensation under the Act. A claim for weekly compensation must be accompanied by a medical certificate. An injury notice must be given to the employer as soon as practicable: ss 120, 123.
Section 222 authorises the responsible Minister to approve forms for the Act. An approved form must be used for its purpose. Approved form AF2002-88 is form 1 under the Act and is headed “Claim for compensation by incapacitated worker”.
There is no issue that in the present case, the respondent made a claim on 31 January 2008, the date she signed her claim form, the form being countersigned on behalf of the employer on the same date, although it was not received by the insurer until 7 February 2008, a week later.
Part 6.2 of the Act lays down periods within which an insurer must accept or reject a claim. Section 128 provides that if the insurer has not rejected a claim within twenty-eight days of receiving it, the insurer is taken to have accepted the claim, and any payment made by the insurer in relation to the claim is not recoverable from the worker. Section 130 provides that if the insurer rejects the claim within twenty-eight days, it may stop payments two weeks after the rejection. Seemingly inconsistently with s 128, s 131 contemplates that an insurer may reject a claim without leave more than twenty-eight days but less than a year after receiving it, in which event the insurer may stop payments eight weeks after the rejection. Section 129 provides that rejection must be by written notice to the worker and to the employer, must include the reason for rejection, and if the rejection is more than twenty-eight days after receipt of the claim, must include a statutory declaration explaining why the insurer is rejecting it.
Section 132, the section relied on in the application to the Magistrates Court in the present matter, is in the following terms:
S 132 Rejecting claims from 1 year
(1) An insurer may reject a worker’s claim for compensation 1 year or later after the claim is given to the insurer only with the leave of the Magistrates Court.
(2) If the Magistrates Court gives leave to the insurer to reject the worker’s claim for compensation –
(a) the insurer need not give the worker notice of the rejection if the worker, or the worker’s lawyer, is present when the court gives leave for the insurer to reject the claim; and
(b) the insurer may stop paying weekly compensation –
(i) on the day stated by the court in the order giving leave to the insurer to reject the claim; or
(ii) 8 weeks after the worker gets notice of the rejection if no day is stated in the order.
(iii) for this section, the worker gets notice of the rejection –
(a) if the worker is present when the court gives leave to the insurer to reject the claim – on the day the court gives leave; or
(b) when the worker receives notice of the rejection from the insurer.
Note Court approved termination is dealt with under the regulations.
Section 134 makes the insurer liable to pay weekly compensation and compensation for treatment and rehabilitation expenses following the making of a claim until the insurer rejects or settles the claim. Settlement of claims is governed by Pt 6.4 of the Act, which permits a settlement by agreement between a worker and an insurer for a lump sum in commutation of the right to future compensation.
The right to compensation for the future is also extinguished by the entry of judgment, or the reaching of a settlement, in a claim for damages under the general law for the same injury: s 184.
Otherwise, the scheme of the Act is that the insurer remains liable to pay compensation for time off work, and compensation for treatment, subject to the formal requirements of the Act being met.
Chapter 11 of the Act is entitled “Procedure for payment of compensation”. Sections within the chapter relevant to the present appeal are;
195 Conciliation and arbitration
All matters and questions (other than prosecutions for offences) arising under this Act must, if no other provision is made in this Act, in the absence of agreement, be settled by conciliation or arbitration in accordance with the regulations.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
197 Appeals
(1) If a committee or 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 this Act, any party to the arbitration may appeal from the decision, order or award to the Supreme Court.
(2) The Magistrates Court Act 1930, Part 4.5 (Civil appeals) applies in relation to an appeal under subsection (1) as if –
(a) it were an appeal from a judgment or order of a kind mentioned in that Act, section 274 (2) (Cases in which appeal may be brought); and
(b) for an appeal from a decision, order or award of a committee – the decision, order or award were a decision, order or award of the Magistrates Court; and
(c) any necessary changes, and any changes prescribed by regulation, were made.
It is the appellant’s position that the order made by the Magistrate dismissing the application for leave was an order in relation to a “matter that may be or is required to be settled by arbitration under (the) Act”, and the appeal is pursuant to s 197. I am not sure that this is the correct characterisation of the application made in the Magistrates Court or of the order made by the learned Magistrate. The alternative view is that s 132 specifically confers jurisdiction on the Magistrates Court to grant leave to an insurer to reject a claim a year or more after the claim was given to the insurer, and that the section in that respect makes “other provision”, removing such an application from the conciliation and arbitration regime imposed by s 195. Some support for such a construction is provided by the heading of Chapter 11, “Procedure for payment of compensation”. An application for leave under s 132 does not sit comfortably under that heading.
The Act does not contain a provision conferring jurisdiction on the Magistrates Court to determine disputes between workers and employers or insurers generally under the Act. There are some provisions which confer jurisdiction specifically on the court similarly to s 132, for example ss 120A and 121 which empower the court to extend time for the making of a claim and the taking of proceedings. To find a general conferral of a power upon the court to determine disputes by arbitration, one must look to the Workers Compensation Regulation 2002. The Regulation is made by the Executive pursuant to s 223 of the Act, which includes in the matters which may be dealt with by regulation the following:
(j) arbitration of matters and questions arising under this Act, including provision for the exclusion or modification of the Commercial Arbitration Act 1986 in its application to such an arbitration.
The nature of the jurisdiction and powers of the Magistrates Court was explained in some detail by Miles CJ in M & M Rolfe Cleaning Services Pty Limited v Schneider (supra) at [65-67]. His Honour pointed out that there was nothing in the body of the Workers Compensation Act (as it stood in 1997) which directly conferred power or jurisdiction on the Magistrates Court. His Honour held that a section of the Act, since repealed, did not confer a judicial function on the court as opposed to an arbitral power. The section in question provided that a worker who had been served with notice of termination of compensation could apply to the Magistrates Court for an order that weekly payments continue or recommence. That of course was a provision of a different kind to s 132 of the Act as it presently stands, and would be very much within the present chapter 11 (Procedure for payment of compensation).
The applicable provisions are found in Pt 7 of the Regulation. The regime envisages that the preferred course is for disputes to be arbitrated by a committee rather than by the Magistrates Court. A committee is defined in the Dictionary to the Act to mean a committee that represents the employer and the employer’s workers, but there is nothing in the Act or the Regulation about how such a committee is to be established, and I am informed by counsel on both sides that in practice the committee process is not utilised and that all such disputes are arbitrated by the Magistrates Court.
Relevant provisions within Pt 7 include:
48 When may application for arbitration be filed?
An injured worker or the worker’s employer may file an application for the arbitration of –
(a) a matter in issue arising from the worker’s claim for compensation only if –
(i) the worker or employer has asked a conciliator to help the parties reach agreement on the matter; and
(ii) the parties have attended the conciliation; and
(iii) either the matter was not resolved at the conciliation or the conciliator decided that the matter was not suitable for conciliation; or
(b) the insurer’s rejection of the worker’s claim for compensation.
Section 49 provides that the Commercial Arbitration Act1986 does not apply to arbitration under the regulation. Section 51 provides that the Magistrates Court must arbitrate a matter in certain specified circumstances. Section 56 is stated to apply to arbitration unless the Act or rules expressly state otherwise. The reference to rules must now be taken to be a reference to Pt 3.13 of the Court Procedures Rules 2006, which is extensive, perhaps to such an extent as to be taken to cover the field in relation to procedure on arbitration under the Act. The provisions of s 56 of the Regulation provide that the Magistrates Court may decide its own procedures, need not act in a formal way, is not bound by rules of evidence, may inform itself about anything in the way it considers appropriate, and must act according to equity, good conscience and the substantial merits of the matter being arbitrated without regard to technicalities and legal forms.
It should be noted that s 48 of the Regulation refers to an insurer’s rejection of a claim as an issue in relation to which an application for arbitration may be filed. It is clear that a worker is entitled to dispute the rejection of a claim, and that such a dispute is to be resolved by arbitration. There can be no question that this is the case in relation to claims rejected in circumstances where leave to reject is not required. It is not clear that the situation is any different where rejection requires leave and leave is granted by the Magistrates Court. The fact that the Magistrates Court has granted leave to the insurer to reject the claim cannot, it seems to me, deprive the worker of his or her right to dispute the rejection and to have that dispute settled by arbitration either by a committee if appropriate, or otherwise by the Magistrates Court itself.
It seems to me arguable that an application to the Magistrates Court for leave to reject a claim under s 132 of the Act is not a matter or question required by s 195 to be settled by conciliation or arbitration. It can be seen as an application for leave which the Magistrates Court is given jurisdiction to determine by s 132 of the Act, rather than a dispute between worker and employer or insurer calling for arbitration. It is clear from s 48 of the Regulation that the rejection itself is a matter which may be the subject of an application for arbitration, but the rejection will not arise, if it arises at all, until leave under s 132 has been granted. The grant of leave and the rejection are not the same. The grant is made by the Magistrates Court and the rejection is made by the insurer. This is so notwithstanding that in practical terms almost always the rejection will follow the grant of leave immediately. Section 132 assumes this in providing that if the worker is present when leave is granted, the worker is taken to have been given notice of the rejection on the same day (a worker in receipt of continuing periodic payments of compensation would be ill-advised to expose himself or herself to that risk).
If s 132 had been intended to have the effect that a worker could not dispute a rejection of a claim for which leave had been given under the section, one would have expected the section to say so explicitly.
It is unnecessary for me to decide this issue in order to determine this appeal.
My attention was not specifically drawn by counsel to s 99 of the Regulation. The section is referred to, though not by section number, at the end of s 132 of the Act (Note: Court approved termination is dealt with under the regulations). The relevant parts of s 99 of the Regulation are:
99 Court approved termination
(1)This section applies if an insurer intends to apply to the Magistrates Court under the Act s 132 (Rejecting claims from 1 year) for leave to end payments of weekly compensation to a worker.
(2)The insurer must give the worker notice of the insurer’s intention to apply to the Magistrates Court for leave.
(3)[Not relevant]
(4)[Not relevant]
(5)If the Magistrates Court is satisfied that the worker is not entitled to receive weekly compensation, the court must give leave to the insurer to end payment of the compensation to the worker after a stated day that is at least 8 weeks after the day the insurer gave the worker notice under subsection (2).
The combined effect of s 132 of the Act and s 99 of the Regulation is at least strongly suggestive of the interpretation that such an application will be relevant only where the worker is in receipt of weekly compensation. Interestingly, s 132 is silent as to when the insurer may stop paying compensation mentioned under Pt 4.5 of the Act (Compensation for medical treatment, damage and other costs). Sections 130 and 131 specifically provide for the stopping of payment of such compensation no earlier than the two weeks and eight weeks respectively, fixed for stopping of payment of weekly compensation.
Applicable principles of statutory interpretation
The Legislation Act 2001 requires that the provisions of an Act be read in the context of the Act as a whole: s 140. Extrinsic materials may be considered: s 141. The interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation, whether or not the purpose of the Act is expressly stated: s 139. Section 138 defines ‘working out the meaning of an Act’ as:
(a) resolving an ambiguous or obscure provision of the Act; or
(b) confirming or displacing the apparent meaning of the Act; or
(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the Act in any other case.
A heading of a provision is part of the provision (at least since 1 January 2000): s 126(2). Therefore headings may be used in interpreting provisions of an Act.
These statutory provisions as to interpretation of legislation are generally consistent with the common law, and I apply them to my task on the present appeal.
The proceedings in the Magistrates Court
The matter came before Magistrate Lalor on 9 February 2011. Counsel for the respondent worker raised a preliminary point: that the application was doomed to failure because there was no live claim for payment at the time it was filed or at the time of the hearing, either for incapacity or for treatment expenses. Counsel tendered a bundle of emails between the worker and the insurer seeking clarification as to whether there were unpaid accounts for treatment outstanding, and concluding with an email from the employer asking the insurer “Can you please confirm if this has been closed?” and a response “This claim has now been finalised”, dated 7 July 2009. Counsel submitted that the purpose of the arbitration process invoked by the insurer was the settlement of matters arising under the Act in respect of which there was no agreement (s 195). There was at the time of hearing no outstanding matter about which the court could have been called upon to make a determination.
Counsel for the insurer submitted that there were matters in issue between the parties, which were apparent from the application and the answer. The answer took issue with some of the factual assertions in the application, and raised assertions of fact, notably raising for the first time the injury of April 2007. Counsel for the insurer further submitted that the claim could not be regarded as finalised, because the worker retained a continuing right to call on the employer or insurer to pay for future medical treatment if it became necessary. The learned Magistrate put to counsel for the insurer that to grant leave would be nugatory, in circumstances where it was common ground that there were no outstanding accounts for treatment or absences from work for which the worker had not been paid. Counsel’s response was that leave would not be nugatory: a rejection of the claim would enable the insurer to refuse to pay future accounts for treatment if submitted. In the absence of leave to reject, the insurer could not regard the claim as closed.
Counsel for the worker submitted that the only vehicle which could provide the certainty the insurer was looking for would be a commutation of the claim.
The learned magistrate accepted the submissions made by counsel for the respondent worker. His Honour’s analysis was that the original lodgement of a claim form was to be seen as an allegation of an injury at work. Once that was accepted, individual claims were made from time to time for payment of compensation and treatment expenses. At the time the application was made there was no claim for payment on foot. The worker enjoyed a continuing right to claim should it become necessary in the future, but there was at the time of the application and of the hearing no claim to be rejected. His Honour accordingly dismissed the application.
As to costs, counsel for the respondent worker drew attention to s 57 of the Regulation, which in summary provides that the successful party to an arbitration is entitled to recover party-and-party costs unless the court otherwise orders, so that this should be seen as the normal order to be expected. Counsel for the insurer submitted that the court should take account of the respondent’s conduct in filing an answer putting the factual background in issue. The learned Magistrate expressed the view that the application had been “appropriately brought and argued”, and ordered that the parties were each to bear their own costs. His Honour noted that in making that order he was departing from the normal procedure. There is a cross-appeal by the respondent employee from this order.
Further evidence
It is common ground that before the learned Magistrate counsel for the appellant employer inadvertently omitted to tender the respondent employee’s workers’ compensation claim form, a letter from the insurer confirming the acceptance of liability for the claim, and a schedule of payments made by the insurer. Section 276 of the Magistrates Court Act1930 provides that in an appeal, this court must have regard to the evidence given in the proceeding in the Magistrates Court out of which the appeal arose, and additionally has a discretion to receive further evidence, as well as a power to draw inferences of fact. I accordingly admitted, without objection, the documents in question into evidence on the hearing of the appeal, and have had regard to them in setting out the factual background above.
Submissions on appeal
Senior counsel for the appellant submits that the learned Magistrate appears to have accepted the argument put on behalf of the worker that “a workers’ claim for compensation” in s 132(1) of the Workers’ Compensation Act means a claim for a specific payment of compensation: as there was no outstanding claim within that meaning, there was no dispute which could properly be the subject of arbitration under s 195 of the Act.
Senior counsel submits that this approach was incorrect. The scheme of the Act, and in particular Pt 6, operates by reference to the initiating “claim for compensation” which will usually be constituted by the claim form submitted by the worker. This construction, counsel submits, is supported by the analysis of Refshauge J in Seers v Exhibition Centre Pty Ltd (2009) 232 FLR 415; [2009] ACTSC 85. It follows that the rejection referred to in Pt 6.2 must be a rejection of liability for an entire claim, this being implicit in the stipulation in s 134 that liability continues until the claim is either rejected or settled.
Senior counsel for the appellant further submits that the learned Magistrate failed to address the argument put on behalf of the employer that the matters or questions for arbitration were those raised by the pleadings. The learned Magistrate was obliged to decide the issues raised by the answer (see para 11 above) and failed to do so. In light of the pleadings, the emails between the insurer and employer were irrelevant, and it was equally irrelevant whether or not there were specific claimed entitlements to compensation outstanding. Any such entitlements would stand or fall with the decision on liability. The appeal should, for those reasons, be allowed and the matter remitted to the Magistrates Court to be heard and determined according to law.
Counsel for the respondent worker submitted that the procedures in Pt 6 apply to the making of specific individual claims for payments of compensation, rather than to the rejection of any general liability. Where there is in that sense nothing to reject, it is not open to an insurer to seek or obtain leave to reject a claim. The learned Magistrate had correctly refused leave to reject, there being no outstanding specific claim, and the appeal should be dismissed.
Consideration
The word “claim” is not defined in the Act. Chapter 6 of the Act is entitled “Claims”. It contains four parts: Pt 6.1 (Making claims); Pt 6.2 (Time for accepting or rejecting claims); Pt 6.3 (Liability on claims); and Pt 6.4 (Settlement of claims). One of the issues between the parties for the present appeal is whether a claim, for the purposes of chapter 6 and the Act generally, means an entire claim for an injury, or whether it means a request or demand by a worker to or upon an employer or insurer for payment, for example, of a specific account from a doctor for medical treatment.
The word “claim” is used elsewhere in the Act, and it may be that the legislature intends it to have different meanings in different contexts. For example, s 36 (in Pt 4.2) is headed “Journey claims”. The word “claim” must be intended there to relate to the incident in which the worker was injured, not each request or demand for payment of each account.
In s 71 (Claim for compensation for Pt 4.5), the reference to a claim for compensation for the cost of medical treatment, which requires written notice of the amount sought, and reasonable details of the expenses, must encompass individual requests or demands for payment of treatment expenses, in a situation where a worker requires continuing treatment at periodic intervals.
One would expect that even if the word “claim” is used in different senses in other chapters of the Act, it would have the same meaning throughout chapter 6. The word “claim” is used in s 120 (in Pt 6.1), in the context of the limitation period for the commencement of a proceeding for the recovery of compensation for an injury, to mean a claim for the injury rather than a subsequent request or demand for payment of a particular account, or compensation for a particular absence from work.
Section 134 (Liability on claim not accepted or rejected), within Pt 6.3, clearly uses the word “claim” to mean a claim in respect of an injury. Part 6.4 (Settlement of claims) clearly refers to settlement of an entire claim relating to an injury, not settlement of a demand for payment of a particular treatment account.
It seems to me that the word “claim” in Pt 6.2 must similarly be read as a reference to an entire claim arising out of an injury, not to every separate demand on an insurer for payment of a treatment account, or payment of compensation for a few days off work. Part 6.2 establishes a regime for acceptance and rejection of entire claims of that kind. It would be applicable, for example, where an insurer has reason to believe that the injury alleged by the worker did not happen at work, or that there was no injury and the claim has been fabricated. Disputes about payment of individual accounts would appear to me to come within the “matters and questions” which s 195 of the Act stipulates are to be settled by conciliation or arbitration in accordance with the regulations: that is, for practical purposes, by proceedings in the Magistrates Court.
Where a claim has been accepted by an insurer, and where the insurer has made payments, the procedure available under Pt 6.2 for rejecting a claim will apply, for example, where information becomes available to the insurer which gives rise to a suspicion that the claim should never have been accepted in the first place. In the present matter, there is no suggestion along those lines. The insurer does not argue that the original claim was flawed, or should have been rejected when first made.
It is reasonably clear that the procedure under Pt 6.2 is also intended by the legislature to be available to an insurer in circumstances where a worker has made a genuine claim (a year or more earlier) and is in receipt of weekly compensation but has made a complete recovery from his or her injuries. The rationale of s 132 is that an insurer in such circumstances is not permitted simply to cease payments of weekly compensation, but must first seek the leave of the court to do so. Strictly the insurer here is not seeking to reject the claim ab initio but only for the future. The purpose of the section is to provide a mechanism for the insurer to cease payments of weekly compensation, but only where the insurer can satisfy the court that it should be permitted to do so. That was not the situation in the application for leave which has given rise to the present appeal.
Effectively, the insurer went to the Magistrates Court seeking the authorisation of the court to close its file. Such authorisation is not available under the Act. If the respondent at some time in the future asserts that she needs medical treatment or time off work, and that the need is causally related to her injury at work, and approaches the insurer with a request or demand for payment of compensation in that regard, it will be open to the insurer to refuse to pay the compensation sought and to put causation in issue. It will be open to the respondent to invoke the procedures available under the Regulation. In the first instance she will need to ask a conciliator to help her reach agreement with the insurer about the dispute. If the conciliation is not successful, it will then be open to the respondent to make an application for arbitration by the Magistrates Court (assuming that there is no committee in existence): See Workers Compensation Regulation, ss 50, 51). But if the issue is decided against the worker, this will not necessarily mean the end of the claim for the insurer for all time. At some later time the applicant may require further time off work or further treatment and may be able to satisfy the Magistrates Court of the requisite causal connection with the original injury. At least in theory, a point is never reached, following the acceptance of a claim, where the insurer can be certain that it will have no further liability, except where there is a commutation under s 137 of the Act, a common law judgment or settlement which extinguishes the right to further compensation under the Act by virtue of s 184, or a valid rejection under Pt 6.2 of an entire claim ab initio.
It is of the essence of the workers’ compensation scheme that otherwise an insurer can never be certain whether a claim can be regarded as finalised or whether it is merely dormant. There are injuries which may cause further disability, and require further treatment, after a lengthy period of stability accompanied by full working capacity. Whether such treatment, and related incapacity for work, are or were caused by the original injury will be a question of fact to be determined on expert medical evidence if necessary, but the possibility remains open. In the absence of a rejection ab initio, a commutation or a common law judgment or settlement arising out of the incident which caused the original injury, an insurer can never be certain that a claim file will not need to be revived.
Conclusion
In the present matter, the insurer was not seeking leave to reject the claim ab initio. Nor was the insurer seeking leave to cease continuing payments of weekly compensation. In the circumstances the leave to reject sought by the insurer was inappropriate and leave was correctly refused by the learned Magistrate.
The appeal will accordingly be dismissed with costs.
For the above reasons, the application to the Magistrate was misconceived and was bound to fail. The Magistrate had a discretion as to costs which he was required to exercise judicially. The usual expectation, where an application is brought unsuccessfully, is that costs will follow the event. To my mind the only argument available to the insurer to why costs should not have followed the event was that the worker raised issues in its answer which were not made out. It does not seem to me that that argument avails the insurer. As I have said, the application for leave to reject the claim was misconceived and was bound to fail. In exercising his discretion as to costs, it seems to me that the learned Magistrate had no available alternative but to order that the insurer pay the worker’s costs of the application. Hence the cross-appeal will be allowed, and the appellant employer will be ordered to pay the respondent worker’s costs of the application in the court below.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Harper.
Associate:
Date: 9 March 2012
Counsel for the appellant: Mr R L Crowe SC
Solicitors for the appellant: Sparke Helmore
Counsel for the respondent: Mr A R Muller
Solicitors for the respondent: Slater & Gordon
Date of hearing: 22 August 2011
Date of judgment: 9 March 2012
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