Widdup v Hamilton
[2006] NSWWCCPD 258
•4 October 2006
WORKERS COMPENSATION COMMISSION
REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT
REPORTED DECISION: Widdup v Hamilton (2006) 5 DDCR 85
CITATION:Widdup v Hamilton [2006] NSWWCCPD 258
APPLICANT: Wayne Anthony Widdup
RESPONDENT: Roy Hamilton
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC6781-05
DATE OF DECISION: 4 October 2006
SUBJECT MATTER OF QUESTION: Novel and complex; power to make a ‘declaration of liability’; section 60 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: President Justice Sheahan
HEARING:On the papers
REPRESENTATION: Applicant: Robb & Associates
Respondent: Sparke Helmore Solicitors
Intervener:WorkCover of NSW
ORDERS MADE: The answer to the question posed in this matter is “No, the Workers Compensation Commission does not have the power or jurisdiction to make a ‘declaration of liability’ in respect of proposed hospital and medical treatment pursuant to section 60 of the Workers Compensation Act 1987”.
I order the Respondent to pay the Applicant’s costs of the referral of the Question of Law, and WorkCover NSW to pay its own costs.
BACKGROUND
On 19 August 2005 the Workers Compensation Commission (‘the Commission’) received a referral of an ‘Application for Leave to refer a Question of Law to the President’ (‘the Application’) from an arbitrator, on her own motion. The Question posed is:
“ Where liability is not in issue, does an Arbitrator have power to [make] a declaratory finding or determination that proposed specific medical treatment by a particular specialist for a compensable injury suffered by the Applicant, is reasonably necessary treatment within the meaning of section 60 of the Workers Compensation Act 1987? ”
This question has arisen in the proceedings commenced by the Applicant, Mr Widdup who is claiming medical expenses for a three level discogram, pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’), as a result of injury to his back, sustained on 23 February 2004, whilst shearing sheep during the course of his employment with the Respondent, Mr Hamilton.
ON THE PAPERS
The Applicant lodged submissions on the Question of Law on 6 September 2005, and the Respondent on 26 October 2005.
Pursuant to section 106 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), the WorkCover Authority of NSW (‘WorkCover’) has exercised its right to be heard, and lodged submissions on 26 September 2005.
The Arbitrator also prepared written statement of reasons for the referral dated 10 October 2005.
Having regard to section 354(6) of the 1998 Act, I am satisfied that I have sufficient information to proceed ‘on the papers’ to determine the Question of Law, without holding a conference or formal hearing and that this is the appropriate course in the circumstances.
“NOVEL OR COMPLEX” THRESHOLD
Pursuant to section 351(3) of the 1998 Act, leave to refer a question of law is only to be granted if the question involves “a novel or complex question of law”. This is a threshold test that must be met before leave can be granted.
The Arbitrator in her statement of reasons for the referral of the Question, states that:
· The question whether Commission arbitrators have the power to make declaratory findings or determinations about future medical treatment has not previously been fully argued before the Commission.
· A decision on the Question would assist in promoting “consistency and certainty in the determination of matters before the Commission.”
The Applicant has not made submissions on the threshold issue, but WorkCover, and the Respondent submit that the Question raised meets the threshold of “novel” or “complex” because it concerns the nature and extent of the Commission’s jurisdiction and power to make declaratory orders, particularly in relation to future medical expenses.
The Commission is not a court. Jurisdiction conferred on it is not the same as that conferred on the former Compensation Court. Whether the Commission has jurisdiction to make declaratory orders in relation to future medical treatment pursuant to section 60, a power that was exercised by the Compensation Court, is a question of law that is “novel” and “complex” within the meaning of those words in section 351 of the 1998 Act and I therefore grant leave.
SUBMISSIONS
Applicant
The Applicant submits that:
·it was the intention of the NSW Parliament that the Commission would have broad ranging powers to resolve disputes arising under the Workers Compensation Acts (the 1987 Act and the 1998 Act). The jurisdiction of the Commission to make orders under section 60 of the 1987 Act (‘section 60’) “is broad and includes orders in respect of future medical treatment where the nature of the medical treatment can be determined at the time that the dispute is determined” (Lilly v Tomago [2004] NSWWCCPD 62 (‘Lilly’) and Water Taxis Combined Pty Ltd and Harbour Taxi Boats Pty Ltd v Wells [2004] NSWWCCPD 30 (‘Water Taxis’));
·the proposed treatment is for a specific investigation (a discogram), the cost of which has been fully particularised;
·it is “within the power [of the Commission] to order or declare that this treatment is reasonable and necessary and to direct the respondent to meet the cost of such treatment if and when it is incurred” , and
·the Commission has power to make orders “in respect of future medical treatment where the nature of the medical treatment can be determined at the time the dispute is determined” (Lilly and Water Taxis).
The Applicant also relies on Linprint Pty Limited v Hexham Textiles Pty Limited (1991) 23 NSWLR 508 at 514 (‘Linprint’), referring to “incidental statutory powers”, and the decisions of Bishop J in Lupton & Ors v Bettercare Pty Limited & Ors 13 NSWCCR 246 (‘Lupton’) and Ashford J in McEvoy v Southern Cross Homes (Broken Hill) Inc 2001 NSWCC 168 (‘McEvoy’) holding that the former Compensation Court had power to make declaratory orders.
Respondent
The Respondent qualifies the Arbitrator’s referral, which includes the words “Where liability is not in issue…”, by confirming that whilst the Respondent has accepted liability for the injury and the payment of weekly compensation and other unspecified payments of compensation, there is a dispute in respect of the seeking of an “order for the payment of a particular, future medical expense”.
The Respondent relies on the oral submissions made by its Counsel before the Arbitrator on 15 August 2005, when the following points were made:
· section 60 is an indemnity provision ( NSW Sugar Milling Co-op Ltd v Manning (1998) 44 NSWLR 442 (‘Manning’)) and payment is to be made after the costs have been incurred and properly verified;
· whilst the Compensation Court had power to make a declaration that a particular section 60 expense was ‘reasonably necessary’, that power came from the court’s “incidental statutory powers” (Linprint);
· the Commission is not a court (Orellana-Fuentes v Standard Knitting Mill Pty Limited & Anor (2003) 57 NSWLR 282) and no declaratory power is conferred by its enacting legislation;
· the Commission has the power to make a ‘general order’ under section 60 of the 1987 Act;
· judicial determinations have restricted the use of a declaratory power to the situation where it is an adjunct to a court’s powers, but only where it is “an incidental or further extension to” the statutory entitlement (transcript page 17 line 55), and
· therefore, as the Commission is not a court, it does not have the power to make a “declaration in futuro” (transcript page 20 line 27) (Water Taxis).
In addition, the Respondent lodged written submissions on 26 October 2005. These submissions make the following additional points:
·“Historically the power to make declaratory orders has been reserved to the Superior or Royal Courts.” In NSW the Supreme Court, as the state’s superior court, has inherent power to grant declaratory relief. (Section 75 of the Supreme Court Act 1970). “Inferior Courts only have this power pursuant to express statutory provision.”
·The former Compensation Court believed it had the power (Lupton at 246).
·The jurisdiction of the Commission is set out in section 105 of the 1998 Act, and the Act does “not provide for any vesting of the powers from the States [sic] superior court to the Workers Compensation Commission”;
·In Taro Phillips v Austco Commercial Pty Ltd WCC 1398 of 2005 (3/5/05), Arbitrator McManamey “recognised there was no clear authority to make such a declaration”, and
·It is beyond the power of the Commission to “order payment of a sum in advance of the worker incurring the expense for the provision of the service”, and this proposition was accepted by me in Water Taxis and Deputy President Fleming in Lilly.
WorkCover
WorkCover submits:
· section 105 of the 1998 Act vests power in the Commission “to make a finding that proposed medical treatment is reasonably necessary in accordance with section 60 of the 1987 Act”;
· it is irrelevant that the Commission is not a court because “the Commission is vested with the same jurisdiction as that of the Compensation Court, and therefore with the same incidental statutory powers necessary to the proper and effective exercise of that jurisdiction”. This power, “if not a direct statutory power of the Commission, is at least, an incidental statutory power in accordance with the principle enunciated in Linprint….” This principle was applied by the Compensation Court in Lupton, and
· in accordance with sections 288 and 289(2) of the 1998 Act, the Commission can exercise its jurisdiction under section 105 in respect of a claim pursuant to section 60 only if such a claim is disputed. If there is no dispute in relation to section 60 expenses, then it would be contrary to the Commission’s objectives to make a declaration about future section 60 expenses.
DISCUSSION AND FINDINGS
Whilst the Arbitrator’s referral states that “liability is not in issue”, it would appear from the Respondent’s submissions that whilst injury, the payment of weekly compensation benefits and other section 60 expenses incurred are not in issue, the Respondent disputes liability for the payment of proposed lumbar discogram (facsimile transmission from CGU Workers Compensation (NSW) Limited to Dr Hillier dated 28 January 2005). It was following this letter of denial that the Applicant filed an Application to Resolve a Dispute (‘the Compensation Application’) in the Commission. The Compensation Application details the proposed treatment as the issue in dispute between the parties.
The ‘dispute’ in which this Question of Law arises is clearly distinguishable from disputes normally dealt with in the Commission: such as disputes about liability for injury; causation and the ongoing effects, if any, of an injury; the need for medical treatment; and the adequacy or otherwise of the verification of the cost of the treatment, once it has been incurred.
In determining the above disputes it is accepted practice in the Commission that, after making the requisite findings of worker, injury, incapacity and/or permanent impairment and making the appropriate orders that result from those findings, it also makes an order for the payment of reasonably necessary medical expenses incurred and properly verified together with a ‘general order’ under section 60. This practice was expressly noted by Egan J in Brespro Pty Limited v Garry John Keenahan NSWCC 11155 of 1991, 12 May 1992 (‘Brespro’), unreported.
However, the kind of ‘general order’ discussed by Egan J is fundamentally different from an order making a declaration that an employer is liable for proposed treatment before the cost of that treatment has been incurred. In these circumstances there will be a dispute pursuant to section 60, and in accordance with the provisions of section 289 (2) of the 1998 Act, only if the Commission is empowered to make a declaratory order that the need for the treatment is “as a result of an injury”, and the proposed treatment is “reasonably necessary” pursuant to section 60 (1) of the 1987 Act. If the Commission does not have the power to make a declaration of that kind, then it has no jurisdiction to hear and determine the application.
I will now turn to consider the pivotal question of whether the Commission has the power to make declarations of the kind sought in this case.
The Legislation
The Commission, as was the Compensation Court, is a statutory body, and derives its jurisdiction from the 1987 Act and the 1998 Act, and from the rules and regulations made under those Acts. Subject to certain exceptions that are not relevant in this case, the Commission has exclusive jurisdiction to “examine, hear and determine all matters arising under” those two Acts (section 105 of the 1998 Act).
The scope of the Commission’s jurisdiction pursuant to section 105 of the 1998 Act was recently considered by the Court of Appeal in Raniere Nominees Pty Limited trading as Horizon Motor Lodge v Daley and Anor [2006] NSWCA 235. The primary issue on appeal in that case was whether the Commission at first instance, and on appeal to the Deputy President, erred in finding that the Commission lacked jurisdiction to hear an application by the employer pursuant to section 145(3) of the 1998 Act because the application was made out of time and the Commission lacked the power to extend time. Santow JA, with whom Spigelman CJ agreed, noted at 66:
“Section 105 of the WIM Act sets out the jurisdiction of the Commission. Thus in acting judicially in its decision-making, the Commission is governed by statute. It does not possess an inherent jurisdiction but only such powers which are incidental and necessary to the exercise of its statutory jurisdiction; see DJL v Central Authority (2000) 201 CLR 226 at [24ff]. It has no statutory power expressly permitting it to extend the time for the employer to make application under s145(3). I do not consider that use of the word “may” in s145(3) does so impliedly; the section is an enabling one so that “may” in effect means “must”.”
The Commission’s jurisdiction in respect of a claim for hospital and medical expenses under section 60 is invoked when the person on whom a claim for those expenses is made “disputes liability for the claim” or “fails to determine the claim as and when required” by the provisions of the 1998 Act (section 289(2) of the 1998 Act).
The term ‘claim’ is defined in section 4 of the 1998 Act to mean “…a claim for compensation or work injury damages that a person has made or is entitled to make”.
Section 4 of the 1998 Act also provides:
“compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.” (emphasis added)
Section 9(1) of the 1987 Act states:
“A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act…” (emphasis added)
Section 4 of the 1998 Act defines ‘medical expenses compensation’ to mean “compensation under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of the 1987 Act.”
Under Division 3 of Part 3, of the 1987 Act, section 60(1) states:
“(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 occupational 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)…
(2)…
(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.” (emphasis added)
The Authorities
In a number of cases the Compensation Court made declarations that certain specified medical treatment was reasonably necessary as a result of a compensable work injury. In addition to Lupton, McEvoy and Brespro noted above, relevant cases include Robyn J Chapman v Director General of School Education NSWCC No 24190 of 1995 (‘Chapman’) Campbell, CJ, 19 November 1999 unreported, and Robert A Carle v Readskill Pty Limited NSWCC No 47693 of 1999, (‘Carle’) Curtis, J, 4 September 2000 unreported.
In Lupton Bishop J accepted that the Compensation Court had the power to make general declaratory orders. In that case the applicants sought to bring representative proceedings on behalf of a large number of other applicants from whom a company (the first respondent) had recovered costs without an order of the court. The matter came before His Honour by way of a notice of motion by the first respondent seeking an order dismissing the application. His Honour noted earlier cases where the court had made orders affecting the parties in the future “without apparent demur” (Fathalizadeh v Health Commission , Compensation Court, No 6598/87, Burke J, 18 September 1989, unreported and Paull v Water Board (1989) 5 NSWCCR 23). His Honour then quoted from the decision of Kirby P (as he then was) in Linprint at 514:
“The County Court of Victoria, like any other Court of statutory jurisdiction, has no jurisdiction beyond that which Parliament has given it…For most purposes the County Court does not enjoy the powers inherent in the Royal courts of common law – the Common Pleas, the King’s Bench and the Exchequer Chamber…There is, nevertheless, a penumbra of power which may not be expressly stated in the statute but which is necessarily conferred by statute by the very fact of creating a court. It is thereby clothed with powers that are necessary ‘to enable it to act effectively within such jurisdiction’…These are not ‘inherent powers’. They are better described as incidental statutory powers…”
Linprint, on appeal from Loveday J, concerned issues of res judicata and issue estoppel. The question was whether the respondent could sue in New South Wales on a claim, identical to proceedings between the same parties that had been brought in Victoria and dismissed in the absence of the respondent. In considering the authority and finality of the County Court of Victoria judgment, the issue was whether the County Court of Victoria (‘the County Court’) had power to enter judgment for a plaintiff and dismiss a cross claim where a party fails to appear to prosecute the cross claim. The County Court Rules 1979 (Vic) made no provision for the contingency that a party bringing a cross claim might not appear to prosecute that claim. However, the County Court Act 1958 (Vic) provided in section 49 that a judge of the court shall have power to grant any relief or make any order as might be done in a like case by the Supreme Court. Section 78 provided that in any case not provided for “the general principles of practice and the rules observed in the Supreme Court may be adopted”. In addition the County Court Rules gave a judge of the court power to make any order “which he may consider necessary to enable him to give a final judgment” (O 24, r 26). In these circumstances Clarke JA, in the NSW Court of Appeal, held that if the situation was not covered in the County Court Act or Rules, then the rules of, “and the general principles of practice observed in, the Supreme Court were available to be adopted and applied with appropriate modifications” (525D). His Honour added that there was no doubt that the Supreme Court had power to dismiss a cross claim where a party failed to appear to prosecute it. The power would, in the absence of a specific rule, be found in the inherent powers of the Supreme Court (525E). In any event the Supreme Court of Victoria does have that express power in its rules (Supreme Court Rules (Vic), O 36, r 32). Samuels JA agreed with Clarke JA without giving a separate judgment. Therefore, it seems to me that it was not necessary for the County Court to rely on any ‘inherent powers’ or ‘incidental statutory powers’ of the kind referred to by Kirby P and His Honour’s comments, quoted by Bishop J, must be read in that light.
In Chapman, the Chief Judge of the Compensation Court, Campbell CJ, said:
“[this] Court unquestionably has the jurisdiction to make declarations in respect of future medical expenses. Customarily that sort of declaration is normally made in relation to relatively finite and specific matters such as operations. It is a discretionary remedy and I think should be used with appropriate care, particularly when one is talking about general areas of treatment rather than more specific events.”
The basis of that asserted jurisdiction was not identified by His Honour. In fact, the jurisdiction of the Compensation Court was set out in section 15 of the now repealed Compensation Court Act 1984 (‘the Court Act’) which provided:
“15 Jurisdiction of the Court
(1) The Court shall have the jurisdiction vested in it by or under this or any other Act.
(2) The Court has the functions vested in the District Court in respect of the following matters:(a) compelling the attendance of witnesses and examining them on oath, affirmation or declaration,
(b) compelling the production, discovery and inspection of books, records, documents and other papers,
(c) compelling witnesses to answer questions which the Court considers to be relevant in any proceedings before it,
(d) the punishment of persons guilty of contempt, or of disobedience to any order made by the Court, or any process issuing out of the Court,
(e) directing witnesses to be prosecuted for perjury.” (emphasis added)
This Commission is not a court, and does not have any of the powers formally set out in section 15 of the (repealed) Court Act. In particular, it does not have power to punish persons guilty of “contempt, or of disobedience to any order made”.
In McEvoy Ashford J concluded at [37] that “there is a body of judicial opinion to the effect that this Court does have the power to make declaratory orders particularly in relation to the cost of future expenses.” Whilst Her Honour declined to make the declaration sought in that case, it was clear from Her Honour’s reasons that “by way of judicial comity” Her Honour (at [49]) adopted the views expressed by the judges in Chapman, Lupton and Carle. Her Honour referred to the Court of Appeal decision in Manning, and noted at [42] that the court’s decision was that “services provided voluntarily to an injured worker were not a cost within the meaning of s 60, finding the section to be an indemnity section empowering the making of orders that the employer pay his employee’s bills and the application of s 60 is the interpretation of an indemnity clause”.
It would appear that the Compensation Court’s exercise of its asserted power to make declaratory orders in respect of future medical and hospital expenses relied, either expressly or impliedly, on the comments of Kirby P in Linprint (see 31 above). The Compensation Court asserted and exercised the power as a practical means of giving some certainty to a worker seeking such an order, before embarking on costly treatment.
The Court of Appeal decision in Manning is directly relevant to the key question whether the Commission has power to make a declaration of the kind sought in the present case. In that case Burke J made an award pursuant to section 60, noting that “the award represents the value of the services rendered to [Mr Manning] by his wife and family, which, in another jurisdiction, would fall within the ambit of Griffiths v Kerkemeyer (1997) 139 CLR 161” (at 443 F). In setting aside the orders made by Burke J, Meagher JA, with whom Stein JA and Sheppard A-JA agreed, stated (at 446E):
“...the section is an indemnity section; it empowers the making of orders that the employer pay his employee’s bills. That is the obvious primary meaning of the word ‘cost’. It is also what is required by pars (b), (c) and (d) of s 60. Further it is also the obvious meaning of most of the paragraphs of the definition in s 59.”
As Meagher JA concluded, “…all that is involved is interpreting the meaning of an indemnity clause in a statute.” (446G)
Sheppard A-JA referred to the dissenting judgment of Fullagar J in Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 at 335 (‘Wilson’) where His Honour referred to “the established principle that, where two constructions of a Workers Compensation Act are possible, that which is favourable to the worker should be preferred”. Shepherd A-JA concluded at page 450A:
“In my opinion, this is not a case where the Act is capable of alternative meanings. The word ‘cost’ in the context in which it appears in s 60 can have no meaning other than one which involves a financial liability on the part of the worker to pay for services provided.”
Manning is binding authority that section 60 is an indemnity provision under which orders can be made for the payment of the cost of hospital and medical treatment. A ‘cost’ is “a financial liability to pay for services provided.” If no ‘cost’ has been incurred then there is no financial liability involved. Therefore, in my view Manning creates an insurmountable barrier to the making of a declaratory order for the payment of specific future hospital and medical expenses pursuant to section 60, because those anticipated expenses are not ‘costs’ within the meaning of that term in section 60.
I am satisfied, based on Manning and the wording of section 60, together with the relevant provisions of section 289(2) of the 1998 Act and the definitions of ‘claim’ and ‘compensation’, that the Commission’s jurisdiction to award compensation pursuant to section 60 is limited by the express provisions of the legislation. There is no express or incidental power to make ‘declaratory orders’ pursuant to section 60.
A declaration that certain medical treatment is reasonably necessary or that an employer is liable for certain proposed future medical treatment to be provided to a worker, is not a ‘monetary benefit’ (see the definition of ‘compensation’ above at 26). It is merely a declaration of potential future liability but it is not a ‘cost’ payable under section 60 until that cost is incurred.
To make a declaration that an employer is liable for the payment of specific future medical expenses exceeds the Commission’s express powers in the Workers Compensation Acts and gives an interpretation to section 60 that is contrary to the words in the section and contrary to binding Court of Appeal authority.
I believe the conclusion I have reached is supported by a consideration of the enforcement provisions in the 1998 Act. Section 362 of that Act provides:
“(1) For the purpose of the recovery of any amount ordered to be paid by the Commission (including costs, but not including a civil or other penalty), the amount to be certified by the Registrar…” (emphasis added).
The enforcement provisions relate to the recovery of “any amount ordered to be paid” under an award. As section 60 is an indemnity provision, no ‘amount’ can be ordered to be paid under that section until the ‘cost’ has been incurred. Once an ‘amount’ has been ordered to be paid in an award, its payment can be enforced through the procedures set out in section 362. The Workers Compensation Acts do not provide any mechanism to enforce a declaratory order. The Commission has no powers similar to those set out in section 15(2)(d) of the (repealed) Court Act to allow for coercive enforcement of a declaration of the kind currently sought.
The above conclusion is also consistent with previous Presidential decisions dealing with section 60 expenses. I note that in the present question of law application, both the Applicant and the Respondent cite the decisions of Lilly and Water Taxis in support of their arguments.
In both Water Taxis and Lilly it was held that, where a dispute is properly before the Commission, it has the power to make factual findings that will be relevant to workers’ entitlements for future section 60 expenses. In Lilly Deputy President Fleming held that the consequences of the work aggravation had ceased. As a result of that factual finding, the worker was not entitled to recover the cost of a proposed hip replacement operation. Had that factual finding been to the effect that work injury caused a permanent aggravation to the worker’s hip and that the proposed hip replacement operation was “reasonably necessary” “as a result of” the work injury, then it would have been appropriate to make a ‘general order’ for the payment of section 60 expenses. That ‘order’ is no more than a statement to the effect that a worker, having established liability, is entitled to have his or her hospital and medical expenses paid provided they are “as a result of an injury” and are “reasonably necessary”. It does not determine liability for any particular treatment. In most cases where the worker has recovered weekly or other compensation his or her reasonably necessary section 60 expenses will be paid without the need for a further application to the Commission. In the event that a medical or hospital account is disputed because it is not “reasonably necessary”, and /or because it is not “as a result of an injury”, then a further Application can be filed seeking a determination on that issue.
It is understandable that a worker who is having his/her medical expenses met by the insurer, either on a voluntary basis or pursuant to a general order made under section 60 of the 1987 Act, would at times seek confirmation from the insurer that it will meet the cost of certain specific treatment before the worker undertakes that treatment. Often this treatment is in the form of major surgery or costly invasive investigative procedures. It is clearly recognised that confirmation in advance that the insurer will meet that cost creates a degree of financial certainty for the worker. The failure to obtain that confirmation may lead to considerable hardship in some cases, as it may unreasonably delay necessary treatment. It is, therefore, regrettable that the Commission is not empowered to make declarations of future liability pursuant to section 60, and consideration should be given to legislative reform in this regard to avoid such hardship.
DECISION
The answer to the question posed is “No, the Workers Compensation Commission does not have the power or jurisdiction to make a ‘declaration of liability’ in respect of proposed hospital and medical treatment pursuant to section 60 of the Workers Compensation Act 1987”.
COSTS
I order the Respondent to pay the Applicant’s costs of the referral of the Question of Law, and WorkCover NSW to pay its own costs.
Justice Terry Sheahan
President
4 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUSTICE TERRY SHEAHAN, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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