Compensation for Medical, Hospital and Rehabilitation Expenses

There are limits on payments of compensation for medical expenses pursuant to Section 60 of WCA and they are set out in Section 59A Subsection 2.  (See Extract)

Section 59A Limit on payment of compensation

1. 1. Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided after the expiry of the compensation period in respect of the injured worker.
   2. The compensation period in respect of an injured worker is:
      1. if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be 10% or less, or the degree of permanent impairment has not been assessed as provided by that section, the period of 2 years commencing on:
         1. the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
         2. the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker), or
      2. if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be more than 10% but not more than 20%, the period of 5 years commencing on:
         1. the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
         2. the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker).
      3. If weekly payments of compensation become payable to a worker after compensation under this Division ceases to be payable to the worker, compensation under this Division is once again payable to the worker but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.
      4. For the avoidance of doubt, weekly payments of compensation are payable to a worker for the purposes of this section only while the worker satisfies the requirement of incapacity for work and all other requirements of Division 2 that the worker must satisfy in order to be entitled to weekly payments of compensation.
      5. This section does not apply to a worker with high needs (as defined in Division 2).
      6. This section does not apply to compensation in respect of any of the following kinds of medical or related treatment:
         1. the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries),
         2. the modification of a worker’s home or vehicle,
         3. secondary surgery.
      7. Surgery is“secondary surgery” if:
         1. the surgery is directly consequential on earlier surgery and affects a part of the body affected by the earlier surgery, and
         2. the surgery is approved by the insurer within 2 years after the earlier surgery was approved (or is approved later than that pursuant to the determination of a dispute that arose within that 2 years).
      8. This section does not affect the requirements of section 60 (including, for example, the requirement for the prior approval of the insurer for secondary surgery).

In essence, if the degree of impairment has not been assessed or is assessed at 10% WPI or less then medical related treatment expenses will not be payable two years after weekly payments ceased to be paid.  If it is to between 11% and 20%, the figure is five years.  

There is no limit if the percentage WPI is greater than 20%.  

Other Potential Rights

1. Domestic Care/Assistance
   Available to an injured worker who has 15% whole person impairment or great – See Section60AA

Section 60AA Compensation for domestic assistance
(1)  If, as a result of an injury received by a worker, it is reasonably necessary that any domestic assistance is provided for an injured worker, the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that assistance if:

(a)  a medical practitioner has certified, on the basis of a functional assessment of the worker, that it is reasonably necessary that the assistance be provided and that the necessity for the assistance to be provided arises as a direct result of the injury, and
(b)  the assistance would not be provided for the worker but for the injury (because the worker provided the domestic assistance before the injury), and
(c)  the injury to the worker has resulted in a degree of permanent impairment of the worker of at least 15% or the assistance is to be provided on a temporary basis as provided by subsection (2), and
(d)  the assistance is provided in accordance with a care plan established by the insurer in accordance with the Workers Compensation Guidelines.

(2)  Assistance is provided on a temporary basis if it is provided in accordance with each of the following requirements:
(a)  it is provided for not more than 6 hours per week,
(b)  it is provided during a period that is not longer than, or during periods that together are not longer than, 3 months,
(c)  it is provided pursuant to the requirements of the relevant injury management plan.

(3)  Compensation is not payable under this section for gratuitous domestic assistance unless the person who provides the assistance has lost income or forgone employment as a result of providing the assistance.

(4)  Compensation payable under this section for gratuitous domestic assistance is payable as if the cost of that assistance were such sum as may be applicable under section 61 (2) in respect of the assistance concerned.

(5)  The following requirements apply in respect of payments under this section:
(a)  payments are to be made as the costs are incurred or, in the case of gratuitous domestic assistance, as the services are provided,
(b)  payments are only to be made if those costs and the provision of the assistance is properly verified (and the Workers Compensation Guidelines may make provision for how the performance of those services is to be verified),
(c)  payments for gratuitous domestic assistance are to be made to the provider of the assistance.

(6)  In this section:

“gratuitous domestic assistance” means domestic assistance provided to an injured worker for which the injured worker has not paid and is not liable to pay.

2.  The Common Law Rights

See Section 151H.

Section 151H No damages unless permanent impairment of at least 15%

(1)  No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%.

Note: Section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with Workers Compensation Guidelines. That section also provides that impairments that result from the same injury are to be assessed together.

(2)  In assessing whether the 15% threshold has been met (that is, whether the degree of permanent impairment resulting from an injury is at least 15%):
(a)  impairment resulting from physical injury is to be assessed separately from impairment resulting from psychological injury, and
(b)  in assessing impairment resulting from psychological injury, no regard is to be had to impairment that results from a secondary psychological injury, and
(c)  the 15% threshold is not met unless the degree of permanent impairment resulting from physical injury is at least 15% or the degree of permanent impairment resulting from psychological injury is at least 15%.

Note: This does not prevent an award of damages in respect of both psychological and physical injuries together once the 15% threshold has been met for one or the other.

(3)  In assessing the degree of permanent impairment that results from a physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury.

(4)  The degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.

(5)  In this section:
“psychological injury” includes psychiatric injury.
“secondary psychological injury” means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury

The damages through are only for past future loss of earnings.  See Section 151G. (See Extract)

Section 151G Only damages for past and future loss of earnings may be awarded

(1)  The only damages that may be awarded are:
(a)  damages for past economic loss due to loss of earnings, and
(b)  damages for future economic loss due to the deprivation or impairment of earning capacity.
(2)  This section does not apply to an award of damages in an action under the Compensation to Relatives Act 1897

(3)  Commutations

Commutations are available but are limited by Section 87EA (See Extract).

Section 87EA Preconditions to commutation

(1)  A liability in respect of an injury may not be commuted to a lump sum under this Division unless the Authority is satisfied that, and certifies that it is satisfied that:
(a)  the injury has resulted in a degree of permanent impairment of the injured worker that is at least 15% (assessed as provided by Part 7 of Chapter 7 of the 1998 Act), and
(b)  permanent impairment compensation to which the injured worker is entitled in respect of the injury has been paid, and
(c)  a period of at least 2 years has elapsed since the worker’s first claim for weekly payments of compensation in respect of the injury was made, and
(d)  all opportunities for injury management and return to work for the injured worker have been fully exhausted, and
(e)  the worker has received weekly payments of compensation in respect of the injury regularly and periodically throughout the preceding 6 months, and
(f)  the worker has an existing and continuing entitlement to weekly payments of compensation in respect of the injury (whether the incapacity concerned is partial or total), and
(g)  the injured worker has not had weekly payments of compensation terminated under section 48A of the 1998 Act.

(2)  The Authority may give directions as to the circumstances in which it will be considered that all opportunities for injury management and return to work for an injured worker have or have not been fully exhausted.

(3)  For the purposes of determining the degree of permanent impairment of an injured worker, the Authority may refer the matter for assessment under Part 7 of Chapter 7 of the 1998 Act. That Part applies in respect of such an assessment as if the matter referred for assessment were a dispute.

(4)  The Authority may delegate to an insurer any of the Authority’s functions under this section in respect of an injury that is an injury for which the insurer is liable to pay compensation.

(5)  This section does not apply to the commutation of a liability in respect of compensation under the former Act.

They are only available to injured workers who have at least 15% whole person impairment and then there are other pre-conditions as well.  Essentially there have been very few commutations since the 2012 amending legislation.