The reasonableness of medical expenses and the requirements of
Schedule 1 Clause 17 have recently been the subject of judicial
consideration in the WA Court of Appeal.
In Napier v. BHP Billiton (Worsley Alumina) Pty
Ltd  WASCA 230 the Court of Appeal considered
the proper construction and application of Schedule 1, clause 17(1)
of the Workers' Compensation and Injury Management Act,
Three Judges of the Court of Appeal refused to grant leave to
appeal and dismissed the appellant's appeal. They agreed on the
reasons and effect of the relevant parts of the WCIM Act.
Clause 17 of Schedule 1 provides relevantly:
"In addition to weekly
payments of compensation payable, a sum is payable equal to the
reasonable expenses incurred or likely to be incurred in respect
of... specified matters."
Justice McLure noted that:
"Clause 17 requires that the
expense(s) be with respect to, inter alia, the medical or surgical
attendance and treatment. In order for the expense(s) to be
reasonable, it is a condition of the entitlement that the medical
or surgical attendance and treatment be with respect to the injury
under the Act. That is a necessary, but not of itself sufficient,
condition of reasonableness.
The reasonableness of the medical
or surgical attendance and treatment with respect to the injury
will embrace (without being exhaustive), matters going to the
appropriateness, effectiveness and cost thereof. For example, a
large outlay for a marginal outcome is unlikely to be
The Arbitrator had found that the respondent was not liable for
the expenses of and relating to C5/6 disc replacement surgery as he
was not satisfied, on the balance of probabilities, that the disc
replacement surgery was "a result of a compensable injury
and/or work related activities".
The primary judgment was delivered by Buss J.A. It was noted
that clause 17(1) does not expressly state any required connection
between the worker's injury or any incapacity resulting from
the injury on the one hand and the relevant medical or surgical
attendance or treatment on the other. His Honour said that it was
apparent from the language of various parts of the statute and the
purposes specified in section 3 that there is a required connection
for the purposes of clause 17(1) between the worker's injury on
the one hand and the relevant medical or surgical treatment on the
other. The required connection must be discerned by implication
from the language of clause 17(1). The connection was as
"The relevant medical or
surgical treatment must be by a medical practitioner for the
purpose of alleviating, remedying, curing or preventing the
deterioration of -
The injury; or
A disability; or
Any symptoms or effects wholly or partially caused by or
attributable to the compensable injury or
The terms "medical attendance" and "surgical
attendance" were not defined in the Act and bore their
The expenses incurred or likely to be incurred will be
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
The amount of the expenses incurred or likely to be incurred
was or is reasonable in all the circumstances.
The reasonableness of the expenses incurred or likely to be
incurred will, in each case involve a question of fact.
This decision was referred to with approval by the Court of
Appeal on 22 December 2015 in the decision of Hawker
Pacific Pty Ltd -v- Lang  WASCA 256.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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