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 [2015] 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, 1981.

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 reasonable."

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 follows:

"The relevant medical or surgical treatment must be by a medical practitioner for the purpose of alleviating, remedying, curing or preventing the deterioration of -
  1. The injury; or
  2. A disability; or
  3. Any symptoms or effects wholly or partially caused by or attributable to the compensable injury or disability."

The terms "medical attendance" and "surgical attendance" were not defined in the Act and bore their ordinary meaning.

The expenses incurred or likely to be incurred will be reasonable if:

  1. 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
  2. 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 [2015] 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.