“Reasonable” medical expenses in workers’ compensation

Dr David Colvin workers compensation

11/06/2021 Dr. David Colvin, trained in orthopaedic surgery in Perth. David's specialty is knee and shoulder surgery and sports injuries.
Joel Trigg is legal practice director at Stephen Browne Personal Injury Lawyers. I have asked Joel to provide some legal perspective on the term ‘reasonable medical expenses’ which appears in the Workers Compensation Act, and what an injured worker can do when approval for surgery is declined by the insurer.

David: Joel, what happens if the insurer refuses to pay for an operation?

Joel: Once the surgeon has discussed with the worker the need for surgery, the surgeon will then send a request to the workers’ compensation insurer for payment of that surgery. It is at that time the insurer may arrange for the injured worker to be reviewed by an “independent specialist” to ascertain whether or not the surgery is “reasonable”.

If the “independent specialist” supports the need for the surgery, then it is likely that the insurer will approve the surgery and the worker will thereafter proceed to undergo the surgery at the earliest opportunity.

reasonable medical expenses

In cases where the insurer refuses to fund the surgery, then a worker has a right to seek a review through WorkCover WA. The process for a review through WorkCover WA is a two stage process. The first part of the process is a Conciliation Conference in which the conciliator has no power to order payment of the surgery. The matter thereafter goes into the Arbitration Service and the arbitrator must determine whether or not the surgery which is being proposed is “reasonable”.

Doctors are generally not called to give evidence in the Arbitration Service. Therefore, it is important that the worker engages a lawyer who specialises in workers’ compensation claims and knows which questions the treating surgeon needs to address in a medical report.

There are a number of cases which deal with what treatment is considered to be “reasonable”.

Tanja Graham v Comcare

In Tanja Graham v Comcare[1], the Administrative Appeals Tribunal of Australia, when dealing with similar wording in the context of the Safety Rehabilitation and Compensation Act 1988, had the following to say at [26] as to reasonableness:

“The question of reasonableness involves objectivity and requires the examination of ‘the circumstances’, including relevant subjective factors related to the nature of the injury, and consideration of whether any alternative treatment, including no medical treatment at all, would have been better for Ms Graham than treatment she obtained. (Re Jorgensen v Commonwealth [1990]). Furthermore, it is necessary to weigh the benefit of the particular treatment against the costs of obtaining it, taking into account any other available treatment (Comcare v Rope [2004])”.

[1] [2007] AATA 1715

Barrick Gold of Australia Pty Ltd v Aaron Charles Green

In Barrick Gold of Australia Pty Ltd v Aaron Charles Green[1], Magistrate Hogan dismissed the appellant’s (the employers) appeal against the review officer’s decision to order payment of an autologous chondrocyte transplant procedure. That surgery involved the repair of damaged cartilage to the respondent’s (the worker’s) knee.

In that case, the appellant submitted a list of 12 considerations relevant to determining the question of reasonableness as follows:

(a) The costs of the treatment.
(b) Whether the treatment was difficult or simple.
(c) Whether the treatment was attended with serious risk.
(d) Whether the treatment is likely to be successful.
(e) Whether the treatment would put an end to incapacity.
(f) Whether there would be such pain and risk in the use of anaesthetic.
(g) Whether the treatment was re-advisable.
(h) Whether all material facts were known.
(i) The appropriateness of the treatment.
(j) The alternatives to the treatment.
(k) The effectiveness of the treatment.
(l) Acceptance of the treatment by the medical profession.

All the learned Magistrate had to say about that list is found at [30] as follows:

“Certainly some of the considerations listed may be relevant factors to take into account in the particular circumstances the particular claims made under Clause 17.”

Importantly, Magistrate Hogan, in her conclusions makes the following statement:

“Whilst the extent of the costs involved was clearly an issue for the appellant, in this particular case there is nothing to indicate other than the extent of the costs was inextricably linked to the nature of the treatment. It is important to bear in mind that one of the primary purposes of the Act is rehabilitation of the worker with a view to restoring them to their fullest capacity for employment. In this case the review officer was not required to focus primarily on actual expense incurred.”

[1] Appeal No. CM 98/03

Napier v BHP Billiton (Worsley Alumina) Pty Ltd

More recently in Napier v BHP Billiton (Worsley Alumina) Pty Ltd[1] the court considered the term “surgical treatment” to include any operation performed by a medical practitioner. In order for medical or surgical treatment to fall within Clause 17(1) of Schedule 1 of the Workers Compensation and Injury Management Act, that treatment must be by a medical practitioner for the purpose of alleviating, remedying, curing or preventing the deterioration of:

(a) The injury of the worker which is compensable under the Act; or
(b) A disability that is wholly or partly caused by or attributable to the compensable injury; or
(c) Any symptoms or effects wholly or partly caused by or attributable to the compensable injury or a disability wholly or partly caused by or attributable to the compensable injury[2].

reasonable medical expenses

Expenses incurred or likely to be incurred in respect of medical or surgical attendance or treatment will be “reasonable” expenses if:

(a) It was or is reasonable in all the circumstances, for the relevant medical or surgical attendance or treatment to be given, provided or undertaken; and
(b) The amount of the expenses incurred or likely to be incurred was or is reasonable in all the circumstances[3].

The reasonableness of expenses incurred or likely to be incurred will in each case involve a question of fact or questions of fact[4].

Given the complexities associated with determining what is considered “reasonable” and the delay in reaching an arbitration hearing (some 6 to 10 months following a conciliation conference), a worker should engage a specialist workers’ compensation lawyer once the surgeon has recommended surgery and in the event that there is any delay by the insurer in approving funding for surgery.

JOEL TRIGG

Stephen Browne Personal Injury Lawyers
www.stephenbrowne.com.au

[1] [2015] WASCA 230
[2] Ibid. Napier per Buss JA at para 108 and per Newnes JA at para 127.
[3] Ibid. Napier per Buss JA at para 113.
[4] Napier per Buss JA at para 114 and per Newnes JA at para 128.

Conclusion

David: Thank you Joel. The list of twelve criteria submitted by Barrick Gold with regard to “reasonableness” have been put to me before. I note the magistrate concluded only that “some of the considerations listed may be relevant”. I always get a laugh out of criteria 2 – “Whether the treatment was difficult or simple”. With a completely straight face, I’m always happy to confirm there are no simple orthopaedic procedures.
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