The requirement for pre-approval to obtain medical treatment pursuant

A provision introduced with the Workers Compensation (Legislation Amendment) Act 2012 which took effect from 19 June 2012, namely s60(2A), initially presented a significant practical barrier to workers seeking the provision of medical treatment by workers compensation insurers in NSW.  Two recent decisions of the President of the Workers Compensation Commission have significantly softened the effect of s60(2A).

S60(2A) of the Workers Compensation Act 1987 (“the Act”) provides:

(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:

  1. 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 Workers Compensation Guidelines from the requirement for prior insurer approval), or
  2. 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
  3. the treatment or service is not given or provided in accordance with any conditions imposed by the Workers Compensation Guidelines on the giving or providing of the treatment or service, or
  4. 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.

At face value therefore, an injured worker is not entitled to claim for the provision of medical treatment or for the reimbursement of treatment costs incurred in circumstances where he or she has not received the pre-approval of the relevant workers compensation insurer.

S60(2A)(a) allows that the Workers Compensation Guidelines may provide exemptions from the requirement for pre-approval. The current edition of the Guidelines  published by the State Insurance Regulatory Authority provides:

Any treatment or service that has been disputed in the Workers Compensation Commission has made a determination to pay for treatment or services. (page 35).

Two recent decisions concerning s60(2A) and when the exemptions to that provision are available include Chris Waller Racing Pty Limited –v- Muscutt [2016] NSWWCCPD and Qantas Airways Limited –v- Gittoes [2017] NSWWCCPD 8 (“Gittoes“). Those decisions concerned an earlier edition of the Guidelines which lapsed in favour of the new Guidelines on 1 August 2016.  The principles enumerated in those cases have the following practical outcome when considering the new Guidelines.

Notwithstanding the requirement prescribed by s60(2A) to seek pre-approval from the workers compensation insurer for the provision of medical treatment, a worker can seek reimbursement of an expense incurred without approval if the relevant treatment giving rise to the expense is the subject of a dispute. The dispute needn’t arise before the treatment expense was incurred.

For example, in Gittoes the worker ceased employment with Qantas on 2 October 2006.  He allegedly sustained an injury in the nature of industrial deafness during the course of that employment from noisy working conditions. He purchased a set of hearing aids on 22 October 2015. He then submitted a claim for industrial deafness for impairment and the cost of the hearing aids on 15 December 2015.

At face value, Mr Gittoes was therefore in breach of s60(2A). However on 17 February 2016 Qantas wrote to Mr Gittoes declining liability for his claim on the basis it was being brought over nine years after he ceased employment and therefore out of time pursuant to s261 of the Workplace Injury Management and Workers Compensation Act 1998.

The Arbitrator who heard Mr Gittoes case at first instance  held his claim was not statute barred due to his delay and that he was not precluded from recovery of his expenses by s60(2A). The decision of Qantas to decline liability brought Mr Gittoes within the exemption provided by the Guidelines. The Arbitrator’s decision was upheld on appeal.

The President’s reasoning occupies paragraphs 82 to 163 of his decision. On one view, the practical outcome is bizarre when considering the purpose of the provision, to enable insurers more input into the path of a worker’s treatment (rightly or wrongly). It seems likely that had Qantas issued a decision declining to reimburse Mr Gittoes on the basis of s60(2A), but otherwise admitting liability, then the jurisdiction of the Commission would not have been engaged and the recovery barred by s 60(2A). On the other hand, an insurer can hardly complain it has been deprived of that opportunity when it has made a decision to decline liability on other grounds in any event.

If you have suffered an injury at work or just seeking general advice contact our team of workers compensation lawyers on 13 43 63 today. They can assist you in initiating a claim or providing you advice on your workers compensation entitlements.