ZIZZATI PTY LTD v ADEMOSKI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 19 October 1992 [1992] NSWCA 287 Mahoney JA The appellant in these proceedings was injured in circumstances in which, as he claims, he is entitled to worker's compensation. On 6 August 1992 his Honour Johns J in the Compensation Court made an award in his favour. The award included a weekly payment of an appropriate amount, something of the order of $242 gross per week and the award includes also the provision in the not unusual form that the respondent pay the applicant's s60 expenses. It is agreed between the parties that s60 expenses would include - and I do not intend to be exhaustive in this regard - the private medical expenses of the kind referred to in the affidavit of the claimant/ appellant of 16 October 1992, and also the costs of ongoing medication and hospital expenses insofar as they are not otherwise provided for. The respondent company, the employer, has brought an appeal to this Court against that award and that lies in fact and law. When that appeal will come on for hearing is not apparent. It will, if I may take notice of the current state of the list, be a number of months before that appeal will come on in the ordinary course. Prima facie the application if it succeeded would have the result that the claimant/appellant would be required to pay all of the medical expenses of various kinds which he is apt to incur in the meantime. It is therefore relevant to consider what these may be. Reference has been made to the matter in the affidavit of the claimant/appellant of 16 October 1992 and I shall not set out the details there set forth. However, the fact is that - and, it is suggested, as a result of his workplace injury - a tumour or the recurrence of a tumour has occurred and it is malignant. He is in a condition in which he has had and will require chemotherapy. He has had a colostomy. I am informed, and I refer to paraS of the affidavit, that likely future treatment would be in the nature of pain relief, depending on the nature of the recurrence of the condition. He is required to undertake three monthly checks with his doctor and a three monthly scan on his back. The frequency of the consultations may depend on whether he has increasing problems from time to time. He sees his local general practitioner once or twice a week who prescribes him medication. He is taking medication that involves two to six morphine tablets every day plus two to six Codral Forte each day and two sleeping tablets. If his pain increases he may require further relief by way of injections of morphine. He indicated that at the beginning of his treatment the medications themselves averaged $120 to $200 per week but at the present time the medications are costing him an average of $30 to $50 per week. The hospital treatment has in the past been paid for by Medicare. I am not clear as to the precise relationship between the Medicare scheme payments and payments under an award of this kind, or as to what are the arrangements made 2 UNREPORTED JUDGMENTS for the recovery of those amounts. I shall assume, if I may put the matter very generally, that aspect in favour of the claimant/appellant. But in relation to medications and medical treatment, either the total amount or, as it has been referred to, the gap between that and the recoverable amount will be required to be paid for by the opponent/respondent. His situation therefore is that pending the appeal the strong possibility is that he will be involved in substantial expense under the heading of s60 medical expenses. I have to this point stated the matter in his terms and from his point of view. The position so far as the claimant/appellant is concerned is, of course, that if those payments are made during the period pending the determination of the appeal and if the appeal is successful there may well be little prospect that the amounts paid will be able to be recovered. I have in mind the policy of the legislation in relation to weekly payments, and the difference which has been legislated for or allowed to exist between weekly payments and payments under s60 or other payments of this kind. I am conscious of the fact that if a stay is not granted in respect of these payments it may well be, as I have said, that some or all of the amounts involved will not be able to be recovered from the worker. I would have preferred to have a detailed analysis of recoverability of amounts of this kind - and again I put the matter very generally - as between worker's compensation arrangements with Medicare and any other Government funding that may exist. I would have preferred to have had a detailed analysis of what would be involved in the expenditure and of the extent to which, if at all, the claimant/appellant would be able to recover either from Medicare or otherwise other amounts which it paid under this order and which, if the appeal succeeds, are to be deemed not to have been payable by it. In the absence of a detailed analysis of this kind I must deal with the matter on the evidence before me. In all the circumstances I think an appropriate view to take is that no order should be made as such at the present time. I would not wish to place substantial difficulty in the way of the opponent/respondent obtaining appropriate medication because it is obvious his condition is one of considerable seriousness and disability. The case involves a weighing of competing considerations. I have taken into account all of the matters to which reference has been made by the parties including the likelihood of success in the appeal; but in the end, having regard to the state of the evidence, I do not think this is a matter in which it has been shown that the order sought should be made. The application shall therefore be dismissed with costs.