Subirat v Central Sydney Area Health Service (Western Suburbs Hospital)

[2006] NSWWCCPD 10

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Subirat v Central Sydney Area Health Service (Western Suburbs Hospital) [2006] NSWWCCPD 10

APPELLANT:  Florentina Subirat

RESPONDENT:  Central Sydney Area Health Service (Western Suburbs Hospital)

INSURER:GIO Workers Compensation (NSW) Ltd Treasury Managed Fund

FILE NUMBER:  WCC 12692-04

DATE OF ARBITRATOR’S DECISION:          19 November 2004

DATE OF APPEAL DECISION:  31 January 2006

SUBJECT MATTER OF DECISION: Section 352(2)(a) of the Workplace Injury Management and Workers Compensation Act 1998 – the monetary threshold to leave to appeal.

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Kells The Lawyers

Respondent: Turks Legal

ORDERS MADE ON APPEAL:  Leave to appeal is refused.

There is no order as to the costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 17 December 2004, Florentina Subirat sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 19 November 2004. The Respondent to the appeal is Central Sydney Area Health Service (Western Suburbs Hospital) (‘the Hospital’). The Hospital’s workers compensation insurer is GIO Workers Compensation (NSW) Ltd Treasury Managed Fund (‘GIO’).

1. Ms Subirat was born on 5 October 1935 and is aged 70. On 19 May 1992, she suffered an injury to her back and neck as a result of the nature and conditions of her work while working at the Hospital. Ms Subirat made a claim for workers compensation and, on 28 February 1996, Truss J in the Workers Compensation Court of NSW made an award in her favour, including that the Hospital pay her medical and like expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’).

1. On 21 August 2000, on the filing of a Notice Of Motion by Ms Subirat, Truss J found that (1) chiropractic, hydrotherapy and massage treatment undertaken by Ms Subirat amounting to $175, and (2) a proposed 12 week hydrotherapy program in the sum of $578, were treatment which were reasonably necessary having regard to the nature of her injuries.

1. On 23 December 2003, GIO wrote to Ms Subirat stating that her compensation claim for “continuing Remedial Massage, Physiotherapy, Analgesic Tablets and Mersyndol treatments” was not reasonable and necessary for her condition and that it would not be paying for this treatment after 31 December 2003. On 19 August 2004, the Commission registered Ms Subirat’s ‘Application to Resolve a Dispute’ in respect of her claim for $400.94, comprising remedial massage ($32.00 x 5), electronic nerve stimulator ($163.00) and medication ($77.14). The Application stated that remedial massage was ongoing at $32.00 every two weeks and medication was also ongoing. The Hospital’s ‘Reply’ was received on 7 September 2004.

1. On 2 November 2004, the Arbitrator held a teleconference with the parties who agreed that she could deal with the matter ‘on the papers’. On 19 November 2004, the Arbitrator made the decision set out below.

THE DECISION UNDER REVIEW

1. The Certificate of Determination, dated 19 November 2004, records the Arbitrator’s orders as follows:

“1. That the Respondent pay the Applicant’s s60 of the Workers Compensation Act 1987 expenses in the sum of $77.14.
2. That the Respondent pay the Applicant’s costs as agreed or assessed.”

1. In her ‘Statement of Reasons for Decision’, the Arbitrator found no evidence that remedial massage or the use of an electronic nerve stimulator were reasonably necessary treatments for Ms Subirat’s compensable injury. The Arbitrator also found that analgesics and anti-inflammatory medications were reasonably necessary treatments but not other medications, for example, Mersyndol which is taken for migraine.

ISSUES IN DISPUTE

1. The grounds of appeal identified by Ms Subirat’s solicitors concern the Arbitrator’s treatment of the evidence and whether remedial massage provides Ms Subirat with symptomatic relief. Her solicitors also submit the Arbitrator failed to provide an adequate statement of reasons for her decision as required by section 294 of the 1998 Act and Rule 73 of the Workers Compensation Rules 2003.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. Having had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the matter can be dealt with ‘on the papers’, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

1. I note that Ms Subirat’s solicitors sought leave to introduce new evidence in the form of a report from her treating general practitioner, Dr Margaret Perrott, which the solicitors had requested. No such report has ever been received by the Commission.

LEAVE

1. Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged on 17 December 2004, within 28 days of the Arbitrator’s decision and in compliance with section 352(4) of the 1998 Act. Section 352(2) states:

“(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:

(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”

1. According to Ms Subirat’s solicitors, the treatment in dispute is remedial massage at a cost of $32 per treatment every three weeks to date and continuing, and constitutes more than 20% of the Arbitrator’s decision. The Hospital submits the amount in dispute, $160 ($32 x 5 remedial massage treatments) and continuing payments in respect of remedial massage, fail to meet the threshold requirements of section 352(2)(a) in terms of the amount at issue.

1. Consideration of whether the threshold requirement of section 352(2)(a) is satisfied in this case requires reference to section 60 of the 1987 Act. Section 60 is an indemnity provision and section 60(3) provides for payments “to be made as costs are incurred, but only if properly verified”. Section 60 does not permit an order for the payment of a specific future amount in respect of treatment. While this is not a bar to an order for future medical or treatment expenses in respect of an injury, the emphasis in section 60(1) is on the worker having incurred the expense for treatment and then seeking payment in respect of that treatment from the employer. The expenses will be payable by the employer if, as a result of the injury, the treatment is reasonably necessary, and if the cost of treatment is properly verified.

1. The requirement that treatment must be reasonably necessary emphasises that the efficacy of particular treatment may be scrutinised. In my view, where a worker is liable to pay for treatment involving a course of therapy such as remedial massage, it is reasonable for the employer to assess the efficacy of such treatment on a regular basis.

1. According to a report by Dr Richard Evans, Physician, dated 11 March 2004, Ms Subirat was receiving massage every three weeks prior to GIO ceasing payment for remedial massage on 31 December 2003. I note that Ms Subirat’s application to the Commission refers to her claim being in respect of ongoing remedial massage fortnightly, whereas the submissions made by her solicitors on her appeal refer to the claim being for remedial massage every three weeks. I will assume that the claim is for massage three weekly. Essentially, this means 17 sessions a year, currently at a cost of $32 per session, amounting to $544.

1. In terms of the section 352(2)(a) threshold of at least $5,000, and bearing in mind that Ms Subirat also seeks recovery of $160 in respect of remedial massage she has already had, this means that almost nine years of remedial massage would be covered by this sum ($544 x 9 = $4,896 + $160 = $5,056). In my view, especially given the nature of the treatment, it would not be reasonable to take into account the cost of treatment over so long a period in considering whether the section 352(2)(a) threshold has been satisfied.

DECISION

1. In my view, the threshold requirement of section 352(2)(a) is not satisfied and I therefore refuse leave to appeal.

COSTS

1. There is no order as to the costs of this appeal.

Robin Handley

Acting Deputy President  

31 January 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE