GN 6.1 Determining liability for medical and related treatment

Published: 12 August 2019
Last edited: 12 August 2019

Application: This guidance applies in part to exempt workers.

Note: the entitlement periods for workers compensation benefits and approval requirements vary between exempt and non-exempt workers.

Pre-approval for accessing medical treatment and services does not apply to exempt workers.

There is also no limit applicable for reasonably necessary medical treatment and services for exempt workers.

Overview

Workers are entitled to be compensated for the cost of reasonably necessary medical or hospital treatment and rehabilitation expenses incurred as a result of a work-related injury.

Insurers are required to make liability decisions for medical or related treatment in a timely, fair and transparent manner.

This guidance addresses what to consider when determining a treatment request and communicating the decision to the worker.

S4. Liability for medical or related treatment
Principle
Liability decisions will be informed by careful consideration of all available information and proactive consultation with relevant stakeholders.

Determining a treatment request

An insurer is required to determine a claim for medical expenses compensation within 21 days - section 279 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).

Medical, hospital and rehabilitation expenses are to be paid where the treatment or service:

  • meets the definitions of the various treatments or services described in section 59 of the Workers Compensation Act 1987 (1987 Act)
  • takes place while the worker is entitled to receive compensation (the compensation entitlement period) for medical, hospital and rehabilitation expenses
  • is reasonably necessary because of the injury (see below for discussion on reasonably necessary)
  • is pre-approved by the insurer (unless the treatment or service is exempt from pre-approval – see Insurer guidance GN 3.4 Pre-approval of treatment)

  • is provided by a person who is appropriately qualified as per Part 4 of the Workers compensation guidelines (the Guidelines).

Definition of treatment

Treatment is defined in section 59 of the 1987 Act as:

  • ambulance service including any conveyance of a worker to/from a medical practitioner or hospital
  • hospital treatment (including treatment by way of rehabilitation) at any hospital or rehabilitation centre conducted by a hospital (excluding ambulance service) including:
    • the maintenance of the worker as a patient at the hospital or rehabilitation centre
    • the provision or supply by the hospital, at the hospital or rehabilitation centre, of nursing attendance, medicines, medical or surgical supplies, or other curative apparatus, and
    • any other ancillary service
  • medical and related treatment including:
    • treatment by a medical practitioner, registered dentist, dental prosthetist, registered physiotherapist, chiropractor, osteopath, massage therapist, remedial medical gymnast (exercise physiologist) or a speech therapist
    • therapeutic treatment given by direction of a medical practitioner
    • the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles
    • any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment
    • care (other than nursing care) of a worker in their home as directed by a medical practitioner in relation to the worker’s incapacity
    • domestic assistance services
    • the modification of a worker’s home or vehicle as directed by a medical practitioner having regard to the nature of the worker’s incapacity, and
    • treatment or other thing prescribed by the regulations as medical or related treatment
  • workplace rehabilitation service meaning any service provided as a workplace rehabilitation service by or on behalf of a provider of rehabilitation services approved under section 52 of the 1998 Act.

Entitlement period for treatment and services

Workers may claim medical, hospital and rehabilitation expenses during a specific compensation entitlement period.

Section 59A of the 1987 Act sets out the limits to payment of compensation and the relevant compensation period for a worker.

Note: there is no limit which applies to exempt workers.

The compensation period starts:

  • the day on which the claim was first made (if weekly payments have not been paid or payable), or
  • the day on which weekly payments cease to be payable to the worker.

The end of the compensation period depends on the worker’s assessed level of permanent impairment. See the table below for further details.

Eligibility criteria

Medical benefits entitlement period

Workers with no permanent impairment or permanent impairment assessed as 0-10%.

Two years from:

  • when weekly payments stop, or
  • from the date of claim if no weekly payments are made.

Workers with permanent impairment assessed as 11-20%.

Five years from:

  • when weekly payments stop, or
  • from the date of claim if no weekly payments are made.

Note: The limitation on medical benefit entitlements does not apply to the provision of crutches, artificial members, eyes or teeth and other artificial aids, spectacles, hearing aids and hearing aid batteries, home or vehicle modifications, or secondary surgery.

Workers with high needs. This refers to workers:

  • with permanent impairment assessed as greater than 20%, or
  • where an approved medical specialist has declined to make an assessment as the worker has not reached maximum medical improvement, or
  • whose insurer is satisfied that the worker is likely to have permanent impairment of greater than 20%.

No limit.

Workers with highest needs. This refers to workers:

  • with permanent impairment assessed as greater than 30%, or
  • where an approved medical specialist has declined to make an assessment as the worker has not reached maximum medical improvement, or
  • whose insurer is satisfied that the worker is likely to have permanent impairment of greater than 30%.

No limit.

Reasonably necessary

If, as a result of an injury received by a worker, it is reasonably necessary that medical, hospital, ambulance or workplace rehabilitation be provided, the worker's employer is liable to pay (see section 60 of the 1987 Act). Before approving or paying for  the treatment or services, an insurer should determine, based on the facts of each case, whether the treatment or service is:

  • required as a result of the injury, and
  • reasonably necessary.

When considering the facts of the case, the insurer should be aware that:

  • what is determined to be reasonably necessary for one worker may not be reasonably necessary for another worker with a similar injury
  • reasonably necessary does not mean ‘absolutely necessary’
  • although evidence may show that a similar outcome could be achieved by an alternative treatment, it does not mean that the treatment recommended is not reasonably necessary.

The matter of Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 dealt with an appeal concerning liability for the cost of proposed dental treatment as a result of an accepted facial injury more than twenty years prior.

Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18

Mr Schokman was assaulted in the course of his employment as a taxi driver in July 1991 resulting in extensive facial injuries and the loss of his four upper central incisors. He was fitted with a four-unit fixed bridge. At the time of his treatment it was noted that Mr Schokman had a pre-existing periodontal disease not related to the assault.

The bridge failed in 1999 and was replaced by a new four-unit bridge supported by two implants. At the time of the treatment in 1999/2000, the prosthodontist reported that the loss of the four front teeth was directly attributable to the assault but the periodontal problems were a result of poor oral hygiene, smoking and genetic susceptibility. The bridge became loose in 2012. The prosthodontist noted ‘early peri-implantitis’ - an inflammatory process around an implant and includes soft tissue inflammation and progressive loss of supporting bone.

Treatment of peri-implantitis of necessity changes the contour of the tissues in the patient’s mouth and Mr Schokman required a new bridge. The insurer disputed the claim arguing that the treatment was not reasonably necessary.

The Commission held there was a common-sense link between the peri-implantitis and the injury. Peri-implantitis is unique to dental implants, the implants are only there because of the injury, and maintenance of the implants is ‘directly connected to the injury’.

The Commission went on to find that while other factors might contribute to the condition, that does not mean the need for treatment does not result from the injury:

The work injury does not have to be the 'only' contributing factor … only need to be satisfied that the work injury contributes in a material and real way to the present condition.

The supply and fitting of a new bridge was held to be reasonably necessary.

In the matter of Diab v NRMA Ltd the Deputy President considered whether knee surgery was ‘reasonably necessary’ as a result of accepted work injuries.

Diab v NRMA Ltd [2014] NSWWCCPD 72

Mr Diab was employed by the NRMA as a road service patrol officer. It was not disputed that he injured his left knee on several occasions in the course of his employment. The nature of the injury and the need for surgery was in dispute.

DP Roche undertook an extensive examination of the meaning of ‘reasonably necessary’ (paras 76 to 91) concluding, with reference to the matters noted by Burke J in Rose v Health Commission (NSW) [1986] 2 NSWCCR 32:

…the arthroscopy was reasonably necessary because it was appropriate treatment for the pathology found (a damaged meniscus), alternative treatment would not have relieved Mr Diab’s symptoms, the treatment was effective to significantly improve Mr Diab’s symptoms and three experts considered it to be appropriate and likely to be effective. No issue arose as to the cost of the surgery or the reasonableness of that cost compared to alternative treatment.

Issues to consider when determining if treatment is reasonably necessary, might include:

  • the appropriateness of the particular treatment
  • the availability of alternative treatment and its potential effectiveness
  • the cost of the treatment
  • the actual or potential effectiveness of the treatment
  • the acceptance of the treatment by medical experts as being appropriate and likely to be effective.

Appropriately qualified

In the NSW workers compensation system, allied health services are provided by appropriately qualified and SIRA-approved* allied health practitioners.

SIRA-approved allied health practitioners are approved in accordance with the Guidelines for approval of treating allied health practitioners. They supply their approval number, along with treatment requests, on the allied health recovery request (AHRR).

Each month, SIRA sends insurers an updated list of approved allied health practitioners (with their approval numbers) so insurers can ensure they are only approving and paying for services provided by appropriately qualified SIRA-approved* practitioners.

Note: Exempt workers are not required to use SIRA-approved physiotherapists, chiropractors, osteopaths, exercise physiologists, psychologists and counsellors.

Determining liability for medical expenses

NSW workers compensation legislation requires liability for medical expenses to be determined within 21 days of a claim being submitted.

Note: If the treatment requested is already covered under the Guidelines’ pre-approval provisions, the worker and provider should be promptly informed to avoid unnecessary delay.

The insurer should consider all available information when determining liability for medical or related treatment. This may include:

  • the treatment request
  • certificates of capacity
  • medical reports from nominated treating doctors and specialists
  • reports from an independent medical examination
  • independent consultant reports
  • clinical records
  • discussions with stakeholders.

Most treatment can be approved by reviewing the treatment request and the information already available on the claim file. A phone call with the nominated treating doctor or allied health practitioner is usually the quickest and most direct way to obtain any missing information.

When additional information is required

On some occasions, an insurer may need to collect further information to help determine liability. If necessary, the insurer should request a report from the:

  • nominated treating doctor
  • medical specialist/ surgeon proposing the procedure/treatment
  • independent consultant, or
  • independent medical examiner.

It may also be useful to request the following information:

  • details of the specific procedure/treatment
  • clarification on the need for the specific procedure/treatment
  • the procedure/treatment’s relationship to the injury
  • proposed date when the procedure/treatment will be provided
  • cost of procedure/treatment
  • expected timeframe for recovery and return to work
  • the type, frequency and duration of any post procedure/treatment rehabilitation.

An insurer may wish to obtain a progress report to determine whether a particular ongoing medical or treatment expense is reasonably necessary in terms of the frequency of the service. Insurers should consider obtaining a progress report regarding a medical or treatment expense where:

  • the worker’s capacity is not improving
  • the treatment is inconsistent with the worker’s injury
  • there may be a more effective, alternative course of treatment
  • the worker is seeking an excessive level of medical or treatment services
  • the level of servicing is increasing over time.

Communicating liability decisions to the worker

Insurers should acknowledge requests for treatment/services as they are received. An insurer should keep workers informed about any updates, including when they should expect a decision on a treatment/service request.

Most treatment approvals can be notified verbally or by email. Approvals for surgery should be notified in writing and should clearly specify what is being approved.

It is best practice for insurers to obtain and review surgical item numbers and costs in relation to relevant gazetted Fees Order/s before approving surgery to ensure compliance with rules and maximum fees. However, care should be taken not to unnecessarily delay surgery approval while waiting for clarification on surgical item numbers.

The insurer should advise relevant parties of the outcome and reasons for a decision regarding liability for medical and related treatment (see expectations outlined in S4. Liability for medical or related treatment).

Disputing treatment

Any decision to dispute liability for treatment should be made in the context of the claim in its entirety. It should also follow principles of procedural fairness and appropriate and sound decision-making process (see Insurer guidance GN 1.5 Procedural fairness for more information). When treatment is not approved, a decision notice must be issued to the worker. See Insurer guidance GN 8.1 Insurer decision and decision notice requirements.

If the insurer disputes liability (for the claim or treatment) after previously approving treatment, it should advise any provider(s), in a timely manner, that the services are no longer approved.

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