The amendments made by the Workers Compensation Amendment Act 2012 (2012 Amendment Act) to medical and related expenses, lumps sums and costs had far reaching implications for workers.
A significant amendment was the introduction of section 59A to the 1987 Act, which limits the length of time insurers are required to pay medical and related treatment expenses. Now is a poignant time to reflect upon these changes as claims have reached, or will soon reach, that limitation point.
Section 59A commenced on 1 October 2012. Section 59A limits the time during which an insurer is required to pay medical and related treatment expenses to:
- 12 months from when a claim for compensation in respect of the injury was first made, where weekly payments of compensation have not been paid - section 59A(1), or
- 12 months from when payments of weekly compensation were last made - section 59A(2).
If a worker ceases to be entitled to medical or related treatment expenses, under division 3 of the 1987 Act, the worker is once again entitled to medical and related treatment expenses given or provided during a period in respect of which weekly payments are payable to the worker - section 59A(3).
Where a worker made a claim for compensation before 1 October 2012, the claim is deemed to have been made immediately before 1 January 2013 and the payment of medical and related treatment expenses would cease on 31 December 2013 - if no weekly benefits have been paid after 1 January 2013. However, if the worker was paid weekly benefits after 1 January 2013, the payment of medical and related treatments expenses will cease 12 months from date of the last payment of weekly benefits.
Regard should be had to the provision for “special compensation” found in section 41. An injured worker who suffers incapacity, after the second entitlement period, resulting from surgery for the initial injury, is entitled weekly payments paid as "special compensation". Special compensation is not payable:
- during the first 13 weeks after the second entitlement period has expired; or
- more than 13 weeks after surgery; or
- during any period which the worker would otherwise have been entitled to compensation.
Sections 59A(3) and 41 raise a difficult issue. Is the treatment payable by the insurer if the worker’s entitlement to recover treatment or related expenses has already expired? It would seem that medical and related treatment expenses incurred, after the entitlement to recover medical and related expenses has expired, are recoverable if treatment causes the worker further incapacity for which weekly benefits are payable. These provisions are still in their infancy and are untested in the Commission. We expect a decision on this point will emerge shortly.
Section 59A does not apply to seriously injured workers - section 59A(4). A seriously injured worker is defined as a worker who is suffering from more than 30% WPI or greater, or the insurer is satisfied the degree of permanent impairment is likely to be more than 30% WPI. A seriously injured worker also includes a worker whose degree of permanent impairment has been declined to be assessed by an AMS, until the AMS is satisfied the degree of permanent impairment is fully ascertainable.
For many workers who made a claim for compensation before 1 October 2012, the payment of medical and related treatments expenses will have expired on 31 December 2013, having not been paid weekly benefits since 1 January 2013. The 12 month limitation on the cessation of the payment of medical and related treatment expenses was modified by the Workers Compensation Amendment (Medical Expenses) Regulation 2013 (2013 Regulation), which commenced on 20 December 2013. The 2013 Regulation only applies to an "existing injured worker". An "existing injured worker" is defined as a worker who was in receipt of weekly benefits, medical expenses or lump sum compensation before the commencement of section 59A (which commenced on 1 October 2012).
The 2013 Regulation allows for the payment of certain medical and related expenses to existing injured workers, if approval was given before 1 January 2014, which would otherwise have not been payable due to the time limits imposed by section 59A of the 1987 Act. The 2013 Regulation applies to:
- treatment by a medical practitioner, a registered dentist or a dental prosthetist;
- hospital treatment and any related workplace rehabilitation services;
- any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment; or
- the provision of artificial members, hearing aids, hearing aid batteries, crutches, spectacles, eyes or teeth and other artificial aids.
The effect of section 59A is to limit workers’ rights of recovery for treatment expenses to the later of 12 months after the claim was first made, or 12 months after they cease to be entitled to weekly benefits. If, after 12 months, the worker suffers a further period of incapacity, the worker may be entitled to further medical and related expenses during the period of incapacity.
If the worker made a claim for compensation before 1 October 2012 and an insurer approved treatment covered by the 2013 Regulation before 1 January 2014, the worker is entitled to have the approved treatment paid after 1 January 2014.
Tips for insurers
When considering claims for medical or related treatment expenses, insurers should:
- Identify when the claim was first made to ensure medical or related expenses incurred more than 12 months after the claim was first made are not paid, if no weekly benefits have been paid.
- Identify when weekly benefits were last paid to ensure that medical and related expenses incurred more than 12 months after weekly benefits ceased are not paid.
- For existing injured workers, ensure that only treatment covered by the 2013 Regulation, which was approved before 1 January 2014, is paid after that date if payment of medical and related expenses were due to expire on 1 January 2014.
- Be alert to workers claiming further periods of weekly benefits within 12 months from when they were last paid weekly benefits as this will restart the clock, from when weekly benefits cease, on the 12 month limitation period. The basis for the further claim for weekly benefits should be examined closely.
- If the worker’s entitlement to medical and related expenses has expired, treatment and related expenses could be payable if the treatment causes the worker to suffer incapacity for which weekly benefits are payable. Regard may need to be had to the provision for special compensation under section 41.