Tolevski v Zanardo and Rodriguez Sales and Service Pty Limited
[2013] NSWWCCPD 9
•28 February 2013
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| ||||||
| CITATION: | Tolevski v Zanardo and Rodriguez Sales and Service Pty Limited [2013] NSWWCCPD 9 | |||||
| APPELLANT: | Steve Tolevski | |||||
| RESPONDENT: | Zanardo and Rodriguez Sales and Service Pty Limited | |||||
| INSURER: | Cambridge Integrated Services Australia Pty Limited | |||||
| FILE NUMBER: | A2-4653/12 | |||||
| ARBITRATOR: | Mr J Wynyard | |||||
| DATE OF ARBITRATOR’S DECISION: | 3 October 2012 | |||||
| DATE OF APPEAL DECISION: | 28 February 2013 | |||||
| SUBJECT MATTER OF DECISION: | Section 60(5) of the Workers Compensation Act 1987; application to consequential conditions; mandatory nature of the provision. | |||||
| PRESIDENTIAL MEMBER: | President Judge Keating | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Shine Lawyers | ||||
| Respondent: | Hicksons Lawyers | |||||
ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determination of 26 September 2012 is revoked. 2. The matter is remitted to the Registrar for referral to an AMS in accordance with s 60(5) of the Workers Compensation Act 1987 for the purpose of assessment under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998. 3. Following an assessment in accordance with s 60(5) of the Workers Compensation Act 1987 the matter is to be remitted to a different arbitrator to determine afresh. 4. Each party is to pay his or its own costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
The appellant, Mr Tolevski, was employed by the respondent, Zanardo and Rodriguez Sales and Service Pty Limited, as a car detailer/car washer at its BMW dealership in Canterbury.
On 30 July 2007, while washing a car Mr Tolevski slipped on a gurni hose causing him to fall heavily resulting in an injury to his left leg and knee.
Cambridge Integrated Services Australia Pty Limited (trading as Xchanging) as agent for the respondent accepted liability in respect of the injury to the left knee and paid weekly compensation and medical expenses.
Mr Tolevski alleges that due to the prolonged use of crutches, as a result of the knee injury, he suffered an acceleration of pre-existing asymptomatic degenerative arthritis in his hips. He now requires bilateral hip replacement surgery.
On 8 March 2012, Mr Tolveski’s solicitors made a claim for compensation in respect of the cost associated with bilateral hip replacement surgery. A dispute has arisen in relation to liability for the hip replacement surgery.
On 13 March 2012, Xchanging issued a notice under s 74 of the Workers Compensation Act 1987 (the 1987 Act). It disputed that Mr Tolevski suffered any injury to the hips arising out of or in the course of his employment on 30 July 2007, or at all. It also disputed that any arthritic condition in the hips was attributable to the injury to the knee. Xchanging disputed that any treatment and/or investigation required in respect of the hip condition was in any way connected to the injury on 30 July 2007.
On 16 May 2012, Mr Tolevski lodged an Application to Resolve a Dispute in the Commission. He alleged that as a result of the injuries sustained on 3 July 2007 he injured his knee, ankle, hip and suffered associated weight gain. He also alleged acceleration of pre‑existing asymptomatic degenerative arthritis in the hips as a result of the continuous use of crutches. He sought compensation for the costs associated with the proposed hip replacement surgery, hydrotherapy and related expenses.
On 28 May 2012, the respondent filed a Reply. It confirmed the matters in dispute in accordance with the s 74 notice and added the following two allegations:
(a) that the evidence attached to the Application does not support an injury to the hips as alleged or at all, and
(b) that the worker was overweight prior to the injury on 30 July 2007 (wrongly pleaded as 3 July 2007) and that there had not been significant weight gain since the injury.
On 26 September 2012, the matter came before a Commission Arbitrator for an arbitration hearing. No oral evidence was called at the hearing. After hearing submissions the Arbitrator delivered an extempore decision. The Arbitrator found that the applicant worker had not discharged the onus of proving that he suffered from a consequential condition in his hips as a result of the original injury to his knee. He found in favour of the respondent.
On 26 September 2012, the Commission issued a Certificate of Determination in the following terms:
“The determination of the Commission in this matter is as follows:
1. That there be an award in favour of the Respondent.
2. That there be no order as to costs.
A brief statement of reasons for determination, in accordance with Rule 15.6 of the Workers Compensation Commission Rules 2006, is attached.”
Mr Tolevski appeals the Arbitrator’s decision.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(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.”
Both parties have submitted that the appeal can be decided on the basis of the written Application and Notice of Opposition lodged.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the parties’ submissions 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time, as found in the provisions of ss 352(3) and 352(4) of the 1998 Act, have been met.
Application of s 60(5) of the 1987 Act
Section 60(5) of the 1987 Act provides:
“The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute must be referred by the Registrar for assessment under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act, unless the regulations otherwise provide.”
Mr Tolevski alleges he suffers a consequential condition in the hips which results from the injury to his left knee and the prolonged use of crutches. The dispute identified in the Application to Resolve a Dispute is limited to a dispute in respect of the cost of proposed hip replacement surgery and associated medical expenses and s 60(5) of the 1987 Act is therefore engaged.
The application of s 60(5) of the 1987 Act was not considered or determined by the Arbitrator. Consequently the question of whether this dispute should have been referred for assessment under Pt 7 (Medical Assessment) of Ch 7 of the 1998 Act was not determined.
Compliance with s 60(5) has been held to be mandatory in its terms: Inghams Enterprises Pty Limited v Stanhope [2012] NSWWCCPD 32 (Stanhope).
Although the issue was not referred to in the proceedings before the Arbitrator, on this appeal the Commission must apply the correct statutory provisions: Electricity Commission of NSW v Yates(1991) 30 NSWLR 351 – applied in Department of Environment, Climate Change & Water v J[2010] NSWWCCPD 56 at [114] and in OneSteel Ltd v Devine [2012] NSWWCCPD 52 at [87]. This principle is an exception to the general rule that parties are bound by the conduct of their respective cases at first instance.
In the circumstances, on Wednesday, 30 January 2013 I convened a telephone conference in order to receive further submissions in relation to the further conduct of the appeal and in particular whether the matter should be referred for assessment under Pt 7 Ch 7 of the 1998 Act.
Following the discussion that ensued at the telephone conference I issued directions for the filing and service of further submissions concerning the application of s 60(5) of the 1987 Act.
In response to the direction, both parties filed further submissions which may be summarised as follows.
Appellant’s submissions
The arbitration proceedings dealt principally with the question of causation of the worker’s bilateral hip condition rather than the issue of whether the hip surgery and hydrotherapy was reasonably necessary medical treatment, or whether the respondent should be liable for the costs of the surgery and hydrotherapy. The appellant submits that as the arbitration was essentially limited to the question of causation it is unclear to the appellant whether the respondent concedes that hip surgery is reasonably necessary as a result of the condition of the worker’s hips. The appellant submits “in any event there is clearly a dispute about the appellant’s medical treatment”.
As there is a dispute with respect to medical treatment under s 60(5) of the 1987 Act, the decision in Stanhope makes it clear that the issue concerning the appellant’s medical treatment must be referred to an Approved Medical Specialist (AMS).
In Stanhope, Deputy President O’Grady rejected a submission that s 60(5) must be read in the context of s 60(1) of the 1987 Act (at [55] to [58]). He held that s 60(5) is a mandatory provision and therefore the dispute with respect to the cost of treatment must be referred to an AMS.
The appellant submits “that the failure of Arbitrator Wynyard to consider and determine the real claim made in the ARD, that being a dispute about the liability for the applicant’s reasonably necessary medical treatment, renders his determination null and void”.
The matter is now complicated by the fact that the appellant has proceeded to have hip surgery done on his right hip only and is awaiting the outcome of this appeal before proceeding to surgery on the other hip.
The appellant submits that the appeal should be allowed and the matter referred either to an AMS or remitted to a different Arbitrator for redetermination and referral to an AMS.
Respondent’s submissions
The respondent submits that on a proper reading of the decision of Deputy President O’Grady in Stanhope, the Deputy President affirmed that the question of injury is one for the Arbitrator.
The Senior Arbitrator found in Stanhope that the worker sustained an injury within the meaning of s 4(b)(ii) of the 1987 Act, to which his employment was a substantial contributing factor. She found that it was necessary for Mr Stanhope to undergo treatment in the form of bilateral median nerve decompression. The Senior Arbitrator held that as there was no dispute concerning the proposed treatment, it was not necessary to refer the matter for assessment in accordance with s 60(5) of the 1987 Act. The appellant was also ordered to pay Mr Stanhope’s reasonably necessary treatment expenses in accordance with s 60. The principle issue in dispute on the appeal was that the Arbitrator failed to refer the matter to an AMS as required by s 60 of the 1987 Act.
The gravamen of the dispute in Stanhope was not one concerning the factual finding of injury. The issue raised the question of whether, having found injury, the Arbitrator could determine whether the proposed treatment was reasonably necessary as a result of the injury.
Section 60(5) has no role to play in the disposition of cases unless injury has already been established. Section 60(1) states the proviso “If, as a result of an injury received by a worker …”. In the absence of a concession of injury or a finding of injury, the section has no purpose. Stanhope confirmed that it was part of the Arbitrator’s duty to make a finding in relation to the deemed date of injury (in the context of the disease injury alleged). The Deputy President went on to find date of injury and then referred the matter to the Registrar for referral under s 60(5).
The hearing before Arbitrator Wynyard proceeded on the basis that there was a dispute that the appellant had suffered an injury or consequential condition in his hips as a consequence of the injury to the left knee on 30 July 2007. The appellant did not raise the application of s 60(5) of the 1987 Act, either at the telephone conference on 10 July 2012 or at the hearing on 26 September 2012.
The respondent submits that the question of injury was a matter that had to be determined by the Arbitrator before the matter could be referred to the Registrar for referral to an AMS in accordance with s 60(5).
The respondent submits that the Arbitrator determined the injury issue in accordance with the principles in Stanhope.
The decision in Stanhope was consistent with the decision in Haroun v Rail Corporation New South Wales & ors [2008] NSWCA 192; 7 DDCR 139 and Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/as Pure and Delicious Healthy and anor [2009] NSWWCCPD 47.
The Arbitrator had jurisdiction to determine the question of injury. Having found against the appellant on the question of injury, s 60(5) of the 1987 Act has no application in the circumstances of this case.
The respondent submits that the appeal should be dismissed.
DISCUSSION
Legislation
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
Note. Compensation for domestic assistance is provided for by section 60AA.
(2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are:
(a)the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and
(b)if the worker is not reasonably able to travel unescorted—the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service.
(2A) The worker’s employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if:
(a)the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the WorkCover Guidelines from the requirement for prior insurer approval), or
(b)the treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or
(c)the treatment or service is not given or provided in accordance with any conditions imposed by the WorkCover Guidelines on the giving or providing of the treatment or service, or
(d)the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or disqualified from practice.
(2B) The worker’s employer is not liable under this section to pay travel expenses related to any treatment or service if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service.
(2C) The WorkCover Guidelines may make provision for or with respect to the following:
(a)establishing rules to be applied in determining whether it is reasonably necessary for a treatment or service to be given or provided,
(b)limiting the kinds of treatment and service (and related travel expenses) that an employer is liable to pay the cost of under this section,
(c)limiting the amount for which an employer is liable to pay under this section for any particular treatment or service,
(d)establishing standard treatment plans for the treatment of particular injuries or classes of injury,
(e)specifying the qualifications or experience that a person requires to be appropriately qualified for the purposes of this section to give or provide a treatment or service to an injured worker (including by providing that a person is not appropriately qualified unless approved or accredited by the Authority).
(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.
(4) The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.
(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute must be referred by the Registrar for assessment under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act, unless the regulations otherwise provide.”
Section 60(5) was inserted in the 1987 Act by virtue of Sch 1 of the Workers Compensation Legislation Amendment Act 2010. The provision became operative on 1 February 2011. Prior to the introduction of s 60(5) the Commission did not have jurisdiction to make orders in respect of proposed future treatment Widdup v Hamilton [2006] NSWWCCPD 258. Section 60 as it stood prior to the introduction of s 60(5) was held to be an indemnity provision: New South Wales Sugar Milling Co-op Ltd v Manning(1998) 44 NSWLR 442; 16 NSWCCR 606.
The Hon Dr Andrew McDonald, MP, introducing the Workers Compensation Legislation Amendment Bill 2010, said:
“Workers compensation legislation provides for the Commission to approve the payment of expenses for reasonably necessary medical treatment. The intention of the legislation is to ensure that in the case of a dispute, the Commission can order that insurers meet the cost of reasonably necessary medical or other treatment for workers. However, a presidential decision has determined that the Commission has jurisdiction to make determinations for medical or other treatment only where the expense has already been incurred. This means that in the instances where there is a dispute between the scheme agent or insurer and a worker with regard to whether the treatment is reasonably necessary, workers are unable to have their dispute heard at the Commission unless they first pay for the treatment themselves. Many injured workers do not have the financial capacity to pay for major treatment and wait for reimbursement from the insurer. The amendment will ensure that the Commission has the power to make a decision about whether treatment requested, but not yet received, is reasonably necessary, medically appropriate and in the best interests of the injured worker. This will be achieved by ensuring that an approved medical specialist gives an opinion with regard to the treatment, and the opinion of the approved medical specialist is taken into account in the decision” (emphasis added).
The dispute before the Arbitrator fell precisely into the category of claims to which s 60(5) is addressed, namely prospective future medical treatment.
The application of s 60(5) of the 1987 Act was considered by Deputy President O’Grady in Stanhope. In Stanhope the dispute before the Commission concerned the cost of proposed medical treatment, namely, a bilateral carpal tunnel release. The Senior Arbitrator who determined the matter at first instance, determined the question of injury in favour of the worker but found it was unnecessary to refer the matter for assessment in accordance with the provisions of s 60(5) of the 1987 Act, as there was no dispute on the medical evidence that the proposed treatment was reasonably necessary.
On appeal, Deputy President O’Grady held that the proper construction of s 60(5) requires that liability questions concerning whether proposed treatment was as a result of an injury and whether the treatment was reasonably necessary, may only have been answered following remitter to the Registrar for referral to an AMS prior to a determination of those issues. He found at [63] that the failure to remit had the consequence that the Arbitrator’s findings and orders concerning the proposed treatment were null and void.
In Stanhope the Deputy President held that s 60(5) requires that the referral of the dispute by the Registrar for assessment under Pt 7 (medical assessment) of Chp 7 of the 1998 Act “must” take place. He noted that the use by the legislature of the word “must” suggests that the requirement is mandatory rather than simply directory, noting the discussion of the distinction in Baker v Rothmans of Pall Mall (Australia) Pty Ltd [1999] NSWCA 245; 18 NSWCCR 374 and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 391. I agree with and adopt the Deputy President’s discussion and conclusions in relation to the mandatory nature of s 60(5).
I also adopt his conclusion that the non-performance of a mandatory statutory provision, such as the requirement of the referral, has the consequence that the findings and orders of the Arbitrator concerning the dispute in relation to the proposed medical treatment are null and void having been made without jurisdiction: Minahan v Baldock [1951] HCA 27; 84 CLR 1: Hatton v Beaumont [1977] 2 NSWLR 211, per Hope JA at 220.
The respondent argues that s 60(5) has no role to play in the disposition of cases unless injury has already been established. It submits that the Deputy President’s treatment of the issues in Stanhope concerning the acceptance of expert evidence in his determination of the dispute in relation to the finding of injury, lends support to its submission that a finding of injury is required before s 60(5) has any application. The submission misses the point that injury is not in issue. The respondent accepted that Mr Tolevski suffered an injury to his left leg and knee on 30 July 2007. The issue for determination concerned whether the proposed treatment was reasonably necessary as a result of the accepted injury.
Mr Tolevski’s hip condition is not an injury as defined, but is merely alleged to be a condition that has resulted from the accepted injury. The Commission has explained in numerous decisions the difference between an injury and a condition that has resulted from an injury: (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50]; Superior Formwork Pty Ltd v Livaja[2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42]; North Coast Area Health Service v Felstead[2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner[2012] NSWWCCPD 4 at [28] and [29]; Kumar v Royal Comfort Bedding Pty Ltd[2012] NSWWCCPD 8 at [35]–[49] and [61]).
In Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27, in the context of interpreting a tax statute, his Honour the Chief Justice stated at [4]:
“The starting point ... is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 340.”
In my view, for the reasons given the meaning of s 60(5) is plain from the ordinary and grammatical sense of the words used. However, if any doubt exists, s 34(2)(f) of the Interpretation Act 1987, permits among other things, the use of the Minister’s second reading speech to the Parliament as extrinsic material that may be considered in the interpretation of a provision. Dr McDonald made clear in introducing the legislation, that the object of the provision (s 60(5)) will be achieved “by ensuring that an approved medical specialist gives an opinion with regard to the treatment, and the opinion of the approved medical specialist is taken into account in the decision”.
Ultimately, the determination of whether treatment of Mr Tolevski’s hips results from the injury to his knees, and is reasonably necessary will be a matter for the Arbitrator. Any opinion expressed by an AMS on referral under s 60(5), will be treated as evidence in the resolution of that dispute but will not be conclusive, as such an opinion is not one of the matters listed in s 326 of the 1998 Act that are conclusively presumed to be correct in proceedings before the Commission.
For these reasons, whilst there remained in issue a dispute concerning whether the proposed treatment was reasonably necessary as a result of the injury on 30 July 2007, the decision by the Arbitrator to reject Mr Tolevski’s application, without referring the dispute in accordance with s 60(5) for assessment by an AMS under Pt 7 of Chp 7 of the 1998 Act, was an error.
It follows that the decision of the Arbitrator must be revoked and the matter must be remitted to the Registrar for referral to an AMS in accordance with s 60(5) of the 1987 Act for the purpose of assessment under Pt 7 Chp 7 of the 1998 Act. Thereafter the matter should be remitted to a different arbitrator to determine afresh.
In the circumstances it is unnecessary to determine the remaining grounds of appeal.
DECISION
The Arbitrator’s determination of 26 September 2012 is revoked.
The matter is remitted to the Registrar for referral to an AMS in accordance with s 60(5) of the 1987 Act for the purpose of assessment under Part 7 of Chapter 7 of the 1998 Act.
Following an assessment in accordance with s 60(5) of the 1987 Act the matter is to be remitted to a different arbitrator to determine afresh.
COSTS
Although the appellant worker has succeeded on the appeal, that outcome of the appeal is not due to grounds raised by the appellant. Neither party referred the Arbitrator to the proper application of s 60(5) of the 1987 Act, which has resulted in the matter miscarrying.
In the circumstances I order that each party is to pay his or its own costs of the appeal.
Judge Keating
President
28 February 2013
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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