Reasonable Medical Expenses

In 1998, Richard Bruce Napier (the appellant) underwent a surgical fusion to his C6/7 cervical spine. In 1999, the appellant was involved in a motor vehicle accident involving a truck. In 2001, the appellant was still experiencing back pain as a result of the surgical fusion that he had done in 1998 and the motor vehicle accident that occurred in 1999.

The appellant claims to have suffered a neck injury on 8 December 2008 while working for the respondent at its Bunbury port operations in the course of his employment. The appellant made a claim for workers’ compensation under the Workers’ Compensation and Injury Management Act 1981 (WA) (‘the Act’). The respondent accepted liability for this claim (2008 claim).

The appellant claims to have suffered another neck injury during the course of his employment with the respondent in or around 11 April 2012. He also made a claim for workers’ compensation under the Act, however this time, the respondent denied liability for the claim (2012 claim).

In October 2012, the appellant underwent cervical surgery, involving the insertion of a C5/6 artificial disc on the advice of the appellant’s neurosurgeon. The respondent denied that it was liable to make weekly payments of compensation or pay medical expenses, specifically the expenses that related to the cervical surgery in October 2012.

The appellant commenced proceedings at WorkCover WA, however the matter could not be resolved through the Conciliation Services. The matter proceeded to a hearing on 23 May 2013 and was heard before Arbitrator Rutherford.

Arbitrator Rutherford held that:

1. with respect to the 2012 neck injury, the appellant had suffered a “mechanical injury” which resulted in neck pain and headaches. The 2012 injury was a ‘fresh injury’ and it had not been a recurrence, aggravation or acceleration of the injury the appellant suffered in 2008;

2. the 2012 symptoms were not a result of the degeneration at the C5/6 disc, as the main problem with the disc appeared to be right-sided. The “mechanical pain” that the claimant was suffering as a result of his 2012 injury was predominantly occurring on his left side;

3. on the balance of probabilities, the C5/6 disc replacement surgery was not a result of a compensable injury and/or work activities as there was no or little medical evidence to establish a connection between work activities and the need for disc replacement surgery. The medical evidence clearly established that the cause of the C5/6 disc replacement was as a result of anticipated “natural” deterioration of the C5/6 as a consequence of the 1998 C6/7 fusion operation; and

4. the appellant was entitled to weekly compensation payments for total incapacity as a result of the alleged 2012 injury, however the respondent was not liable for the expenses of and relating to the C5/6 disc replacement surgery.

The appellant commenced appeal proceedings in the District Court of Western Australia and sought to appeal Arbitrator Rutherford’s decision.

The appellant sought orders that the respondent be liable for the expenses relating to the C5/6 disc replacement surgery, or in the alternative, sought to have the matter remitted to WorkCover WA Arbitration Services for a further hearing.

The appellant relied on three grounds of appeal in the District Court:

1. the arbitrator had erred in law by failing to consider whether the appellant’s need for the C5/6 disc replacement surgery was advanced by the 2008, and or 2012 injury;

2. the arbitrator failed to provide adequate reason for finding the surgery would have been required when it occurred irrespective of the 2008 and/or 2012 injuries; and

3. the arbitrator misstated the law; to the effect that the appellant’s work needed to contribute to a significant degree for a compensable injury to be a cause of the disc replacement surgery.

Leave to appeal was refused on all three grounds.

The appellant’s case in the Supreme Court (Court of Appeal) was significantly different from his case before Arbitrator Rutherford and in the District Court of Western Australia.
 
The appeal in the Supreme Court was concerned with the following:

1. the proper construction and application of what constituted reasonable “medical and other expenses” incurred or likely to be incurred pursuant to the Act; and

2. if expenses in “respect of medical or surgical treatment” are to be payable, there must be a connection between those “expenses” and “the injury”.

The appellant’s case in the Supreme Court was that expenses relating to the C5/6 disc replacement surgery were reasonable within what is classified in the Act as “medical and other expenses” because:

1. the surgery was medically and surgically appropriate for the appellant’s injury (mechanical neck pain); or

2. when the surgery was performed, the injury that was the cause of the appellant’s neck pain had not been identified and the surgery was medically and surgically appropriate with a view to relieving pain.

The Court determined that whether medical or surgical treatments are considered “reasonable “for purposes of the Act will depend upon all the circumstances of the case, including the appropriateness and cost of medical or surgical treatment. In these circumstances, there was not significant medical evidence to establish that the cervical surgery was medically or surgically appropriate to relieve the pain caused.

Buss JA provided commentary as to the required connection for the purposes of Clause 17(1) of Schedule 1, between the injury on the one hand, and the relevant medical or surgical treatment on the other in determining whether expenses are reasonable and should be payable. He said the relevant medical or surgical treatment must be provided 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;
(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.

Buss JA further clarified that when determining whether medical or surgical treatment is reasonable, there has to be a clear connection between the worker’s injury and the relevant medical or surgical treatment performed.

In any event, as the appellant had materially changed his position in the Supreme Court compared to his position before Arbitrator Rutherford and the District Court, the findings of fact and the reasons of Arbitrator Rutherford were inconsistent with the case before the Supreme Court.

As Arbitrator Rutherford did not make any material error in his approach to fact-finding, there was no basis for the Supreme Court to set aside or interfere with Arbitrator Rutherford’s finding of fact or the reasoning upon which he based his findings.

The appeal was dismissed.

This decision provides a useful statement on the law with respect to the issue of the connection between an injury and medical expenses, when there was previously little or no law on the issue.

This CASE LAW UPDATE is intended for general information only and you should not act upon it or omit to act on the basis of anything contained herein without first obtaining legal advice in relation to any particular matter or issue.

© Copyright 2015, SRB LEGAL – All Rights Reserved

Date: 18 November 2015

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