November 2013

Workers Compensation Commission (WCC) retains jurisdiction in relation to claims for medical expenses

The Workers Compensation Commission in Barsoum v Salim, Odette and Helda Boyaji t/as All Sales Plastics 10052/12 on 12 September 2013 determined it still has the power to award medical expenses under section 60 where the insurer previously declined prior approval of the treatment under section 60(2A).

Relevant legislation

Section 60(2A) of the Workers Compensation Act 1987 provides an employer is not liable for payment of certain reasonably necessary medical treatment expenses and services incurred on or after 27 June 2012 if the costs are incurred without prior approval of the insurer.

Brief background

The claim by Mr Barsoum was for medical expenses after 27 June 2012.  The insurer declined to approve proposed surgery.  Mr Barsoum did not apply for an order under section 60(5) sanctioning the treatment and subsequently underwent the surgery recommended by his treating specialist.

The respondent argued the Commission did not have power to determine the claim for surgical treatment given section 60(2A) provides the employer is not liable to pay for the cost of any treatment where the insurer does not give prior approval.

The decision

Arbitrator Snell discussed the prior decision of the Registrar of the Commission in McIntosh v Impact Scaffolding Pty Limited 12903/2013 which determined employers are not liable for any non-exempt medical treatment expenses incurred after 27 June 2012 where the insurer had not given prior approval. 

However, Arbitrator Snell reached a different conclusion.  She held, if prior approval for treatment is sought from an insurer and declined, a dispute is created which the Commission has power to determine.

The Arbitrator pointed out section 105 of the 1998 Act gives the Commission exclusive jurisdiction to examine, hear and determine all matters arising under the 1987 Act. 

She observed, the 2012 amending Act had made extensive changes to the weekly benefits regime and noted section 43(3) of the 1987 removed Commission jurisdiction to determine any dispute about an insurer’s work capacity decision.  She found it significant the 2012 amending Act, when introducing changes to section 60, did not similarly deprive the Commission of jurisdiction to deal with disputes concerning medical treatment which is not pre-approved by the insurer.

Accordingly, the Arbitrator concluded the failure to obtain insurer approval of treatment under section 60(2A) did not deprive the Commission of jurisdiction to deal with a dispute about the cost of that treatment under the traditional test prescribed by section 60(1).

This decision raises a significant question about the efficacy of section 60(2A).  The reform was introduced to reduce the ability of injured workers to unilaterally obtain medical treatment without insurer approval and visit the cost of the treatment on insurers at a later date.  The decision has in effect emaciated section 60(2A).

In practice

If a worker requests prior insurer approval of non-exempted medical treatment after 27 June 2012 and the insurer does not approve the treatment, the worker can still have the treatment and, if the treatment is reasonably necessary as a result of injury, the Commission can order payment.

 

Author: Judith Edwards

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