Reported Decision : (2001) 21 NSWCCR 701 Compensation Court of New South Wales CITATION : Kazemipour v Sydney Water Corporation Limited [2001] NSWCC 111 PARTIES : Ahad Kazemipour Sydney Water Corporation Limited (formerly known as the Water Board) MATTER NUMBER(S) : 47733 of 1999 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 16/05/01 EX TEMPORE JUDGMENT DATE : 05/16/2001 FOR APPLICANT:Ms V Webster instructed by Geoffrey Edwards & Co. LEGAL REPRESENTATIVES: FOR RESPONDENT:Mr D L Williams instructed by Bartier Perry Solicitors JUDGMENT: 1. This is a motion by the applicant worker seeking the following orders: 1. The respondent pay the applicant the sum of $998.55 being the balance of moneys owed pursuant to s 66 and s 67 of the Workers Compensation Act 1987 in accordance with orders and awards of Judge Armitage dated 11 August 2000; 2. The respondent pay the applicant's [sic] interest from 29 August 2000 to date at the rate of 6 per cent per annum; 3. The respondent pay the applicant's costs associated with this motion. 2. The motion is supported by an affidavit of the applicant's solicitor, Anthony Andrews, sworn 23 April 2001. It is opposed by the respondent employer which has put on an affidavit of Stuart Moffet, solicitor, sworn 23 April 2001 in reply. For convenience I shall refer hereafter to the applicant worker and the respondent employer as the worker and the employer respectively. 3. By judgment dated 11 August 2000 I found in the worker's favour on an application for lump sums under s 66 and s 67 of the Workers Compensation Act 1987 ("the Act"), awarding s 66 and s 67 lump sums totalling $22,590.96. Subsequently by agreement of the parties my award was amended by further orders on 20 October 2000 whereby relevantly I made a general award for s 60 expenses, meaning of course medical, hospital and like expenses within the meaning of s 60 of the Act. 4. It is unnecessary to trace the contents of Mr Andrews' and Mr Moffet's affidavits exhaustively, for it is common ground that before my award was pronounced a Notice of Charge pursuant to s 24 of the Health and Other Services (Compensation) Act 1995 (Cth) had been received by the employer in respect of the sum of $998.55, being amounts paid by the Health Insurance Commission by way of Medicare benefits to medical practitioners whom the worker had previously consulted. When it came to pay the s 66 and s 67 lump sums to the worker, the employer paid the sum demanded by the Notice of Charge, $998.55, to the Health Insurance Commission and then quite properly deducted that sum from the worker's s 66 and s 67 entitlement with the result, as is again common ground, that the worker did not receive the full amount of his s 66 and s 67 award, namely $22,590.96, but rather the sum of $21,592.41, being the result of the deduction of the Health Insurance Commission charge in the sum of $998.55 from the worker's total s 66 and s 67 entitlement of $22,590.96 just mentioned. 5. What the motion seeks is payment of the remaining sum of $998.55 to the worker. The basis upon which the worker so contends is that the sum of $998.55 represents medical expenses resulting from injury to the worker within the meaning of the Act as found by me, so that the employer was liable to pay those sums under s 60 of the Act so that, the employer having effectively paid those sums by meeting the Health Insurance Commission Notice of Charge by the deduction from the worker's s 66 and s 67 entitlements, he is entitled to be paid the balance of those entitlements without deduction by the employer. 6. The motion is resisted by the employer, according to Mr Williams' capable argument for it, on three bases. The first is that the motion properly should seek reimbursement to the worker of s 60 expenses rather than payment of the balance of the s 66 and s 67 sums awarded to him previously by me. The second is that as a result of various provisions in the Health and Other Services (Compensation) Act 1995 (Cth) which I shall shortly trace, that legislation results in a complete discharge of the employer's liability to the worker in respect of the s 66 and s 67 sums awarded by me, once the Notice of Charge is met by the employer by payment of the amount of it to the Health Insurance Commission. The third basis upon which the employer resists the motion is that the worker has not established as an evidentiary matter that the amounts covered by the Notice of Charge in the sum of $998.55 represent expenses covered by s 60 of the Act. It contends that it has only been supplied with a list of such expenses and the doctors to whom they were payable, without specification of the nature of the services rendered by those doctors or their relationship to injury within the meaning of the Act. 7. It has been agreed by the parties that it is a convenient course for me to deliver judgment on the first two preliminary points raised by the employer, leaving the last issue raised to be met at a later date by appropriate evidence by the worker, should he succeed on the first two issues. 8. That of course does not resolve the question of the costs of today, on which the parties are also at issue. Mr Williams contends that at all material times the worker had the onus of proving that the expenses the subject of the Health Insurance Commission charge were s 60 expenses properly incurred as a result of injury within the meaning of the Act. Ms Webster for the worker says that this is the first time this has been raised by the employer, and that it was never raised on the correspondence between them annexed to the affidavits of Mr Andrews and Mr Moffet, and as I read that correspondence that is indeed the case. It was not unreasonable, I think, for the worker to apprehend that he did not have to prove these expenses strictly, having already provided a statutory declaration to the Health Insurance Commission (at least arguably against interest, as I remarked to Mr Williams during submissions) that such expenses were related to his work injury. Be that as it may, I have accepted the worker's submissions on the first two preliminary points set out above. So that the merits of the relief sought by the motion may be properly and expeditiously ventilated I propose to give the worker an adjournment for the purpose of assembling evidence, no doubt by way of short reports from the doctors and other practitioners or bodies concerned, to be annexed to a further affidavit of the worker's solicitor, in an attempt to prove that the expenses constituting the Health Insurance Commission charge were in fact incurred as a result of injury within the meaning of the Act so as to be covered by s 60. The parties are of course at issue as to the costs of that further work being done and as to the costs of any further hearing date, regardless of the result of the motion, and I shall rule on that question when I ultimately deal with the substantive question on the motion, which is whether the expenses constituting the charge are covered by s 60 of the Act. 9. It is convenient to deal first with Mr Williams' second point. He takes me first to s 8 of the Health and Other Services (Compensation) Act 1995 (Cth) ("the Health Act") where a scheme is set out, to quote the heading of the section, for "recovering past payments of Medicare benefit from judgments and settlements". It provides that if a judgment or settlement is made in respect of an injury to a compensable person (in this case the worker) and if the judgment or settlement specifies an amount as a component thereof in respect of medical expenses already incurred, the amount of that component, so far as it represents payments made by the Health Insurance Commission in respect of what it is convenient to call "Medicare benefits", is payable by the compensable person, in this case the worker. 10. S 11 of the Health Act headed "Notice of Claim" provides that if a person makes a claim against another person by way of compensation for an injury, the other person, i.e. the person against whom the claim is made, must give the Health Insurance Commission notice of the claim. A number of further machinery provisions implementing that scheme are set out in s 11. 11. S 17 of the Health Act headed "Notice to Claimant" provides that the Managing Director of the Health Insurance Commission may, in respect of a claim for compensation made by a claimant, give the claimant a written notice requiring the claimant to give the Commission a written statement specifying the professional services in respect of which Medicare benefit has been paid, and indicating whether nursing home care or residential care has been provided in the course of treatment of or as a result of the injury which the claimant claims to have suffered. A number of further machinery provisions follow in s 17. 12. S 18 of the Health Act headed "Statement by Claimant of Past Benefits" then provides that the claimant (in this case the worker) must give to the Health Insurance Commission the statement required by the s 17 notice within 28 days after receiving the notice. Machinery provisions follow in respect of that. 13. S 21 of the Health Act headed "Notice of Past Benefits" provides that if in relation to a s 17 notice given to a claimant, the claimant has given the Commission a statement under s 18, the Managing Director may give to the "notifiable person" (defined in s 3(1) of the Health Act relevantly as the person against whom the claim is made, in this case the employer) a notice under the section. The notice is to set out the period covered by the notice and the total amount of eligible benefits paid by the Commonwealth during that period in respect of services and care rendered or provided in the course of treatment of, or as a result of, the injury the claimant claims to have received. Machinery provisions follow in s 21, in particular subs (5) which provides relevantly that the notice may include a statement to the effect that if a judgment or settlement is made in respect of the claim within three months after the notice was given, the notice is taken to be a notice of charge under s 24. 14. S 23 of the Health Act headed "Notice of Judgment or Settlement" provides that the notifiable person (in this case, as I have said, the employer) must notify the Commission in writing if a judgment or settlement has been made in respect of the claim within 28 days after the judgment or settlement is made. Machinery provisions follow in that section. 15. S 24 of the Health Act headed "Notice of Charge - Claims Resulting in Judgments or Settlements) provides relevantly in subs (6) that a notice under s 21 is taken also to be a notice under that section (s 24) given by the Managing Director to the insurer or compensation payer, as the case requires, on the day on which the judgment or settlement is made, if the notice under s 21 includes relevantly a statement of the kind referred to in s 21(5), and if the judgment or settlement is made within three months after the notice was given. 16. S 28 of the Health Act headed "Payments to the Commonwealth" provides relevantly that if the Managing Director gives to a compensation payer a notice under s 24, the compensation payer must pay to the Commonwealth the amount specified in the notice within 28 days after the date on which the notice was given. A penalty is provided for failure to comply with the section. S 29 of the Health Act headed "Recovery of Amounts Payable to the Commonwealth" provides a corresponding civil liability in a compensation payer (in this case the employer) to whom a notice is given relevantly under s 24 to pay the amount specified in such a notice. Thus criminal and civil sanctions respectively are provided by s 28 and s 29 in the case of failure to comply with a s 24 notice. 17. It is necessary to quote s 31(1) of the Health Act, for it is the crucial provision relied upon by Mr Williams in support of his argument. It reads relevantly: Payment of an amount that a compensation payer is liable to pay to the Commonwealth under section 28 or subsection 29(3) or (4) operates, to the extent of the payment, as a discharge of: (a) the compensation payer's liability to the compensable person in respect of the amount of compensation. 18. Mr Williams argued simply that subpar (a) operates to discharge the employer's liability to pay the worker the sum of $998.55, being the balance of the s 66 and s 67 sums owing prima facie under my award, because they represent the amount of a charge made on the employer and paid by it pursuant to the statutory scheme traced by Mr Williams which I have just set out. It is common ground of course that the charge was levied pursuant to the statutory scheme which I have traced as a result of a statutory declaration provided in fulfilment of the worker's obligation to provide a written statement of Medicare payments which were made to certain doctors in respect of treatment afforded by them, as he asserts, as a result of injury found by me within the meaning of the Act. 19. The problem with Mr Williams' argument seems to me to be as follows. The expression "amount of compensation" in s 31(1)(a) is defined in s 3(1) of the Health Act (the definitions section) as meaning the definition set out in subs (2) of the same section, which reads: A reference in this Act to an amount of compensation in relation to a judgment or settlement is a reference to the sum of all the amounts of compensation that are payable, under the judgment or settlement, to a particular compensable person. 20. As a result of the amendment to my award made by consent on 20 October 2000, my award includes a general award in the worker's favour for s 60 expenses. Thus the "sum of all of the amounts of compensation that are payable to a particular compensable person", namely the worker, within the meaning of s 3(2) of the Health Act is the sum of the s 66 and s 67 lump sums awarded in my original award and the further sums awarded in the consent amendment to my award on 20 October 2000 which includes, relevantly, a "general award" for s 60 expenses, to quote the expression employed by the parties in the short minutes of order furnished to me at the time I made the consent amendment to my award. 21. Thus when one approaches s 31(1)(a) of the Health Act quoted above it becomes apparent that the discharge provided by the subsection of "the compensation payer's liability to the compensable person in respect of the amount of compensation" is a discharge in respect of the whole amount of compensation awarded to the worker, including in this case s 60 expenses. What the employer seeks to argue in this case, notwithstanding that, is that its payment of medical expenses pursuant to the charge under the Health Act may be applied in discharge of its liability under s 66 and s 67 of the Workers Compensation Act, despite the fact that by the consent amendment to my award it is also liable to pay s 60 expenses in respect of injury within the meaning of the Act as found by me. 22. The plain effect of s 31(1)(a) when considered in light of the definition of "the amount of compensation" in s 3(2) is to provide only that there is a discharge of the employer's liability to the worker in this case in respect of the whole amount of compensation awarded by me, including the amendment to the award making a general s 60 order, so that the discharge applies only upon the s 60 order being separately met, rather than by way of deduction from the s 66 and s 67 liability of the employer to the worker as the employer contends. 23. The result of upholding the employer's contention in this case would have absurd and capricious results to my mind, and pursuant to what was said in such authorities as Commissioner of Taxation v Cooper Brookes (Wollongong) Pty Ltd (1979) 25 ALR 511 such an interpretation ought not be adopted unless the language of the statute is intractable. I say that because Mr Williams conceded that the result of his argument was that if in a hypothetical case the amount of a Health Insurance Commission charge exceeded the amount of the s 66 and s 67 lump sums awarded to a worker, payment of the Health Insurance Commission charge by the employer would absolve it completely of any liability under s 66 and s 67 to the worker, notwithstanding the award of sums under those sections to the worker by a Court. This would obviously be an alarming result. The answer to such a contention is that the employer's liability to the worker to pay s 60 expenses in such a case is a separate one from that in respect of lump sums under s 66 and s 67, and that the payment of the charge ought be set off against the total amount awarded including the s 60 liability, and that the result of s 31(1)(a) read in light of the definition of "amount of compensation" in s 3(2) of the Health Act would appear to be that if a Court's award includes among other entitlements an order for s 60 expenses (as here), it is against that total liability that the employer's payment of the Health Insurance Commission charge must be set off so as to provide a discharge under s 31(1)(a), which is the result contended for by the worker in this case. 24. Once this conclusion is reached, it can be seen, in reply to the employer's first point, that the present motion is the proper vehicle for the relief the worker seeks. This is because what the worker is seeking is not reimbursement of s 60 expenses paid by him, but rather reimbursement of a deduction made by the employer from a payment made in discharge of another liability, that under ss 66 and 67 resulting from my award. To put it another way, because the employer is liable for and has met, by payment of the charge, the worker's s 60 expenses, what the worker is seeking is not reimbursement of s 60 expenses, which he after all has never paid, but rather payment in full of his s 66 and s 67 lump sums, from which the employer now cannot claim credit for the sum of $998.55 because of the consent amendment to my award to include s 60 expenses. 25. In that regard I should mention in passing the only authority cited to me by the employer in support of its submissions, Saad v J Blackwood & Sons Ltd (1997) 15 NSWCCR 215. That case differs from the present one in two crucial respects. There a similar but not identical situation to the present one occurred. A s 66 and s 67 award was entered by consent, but not an order under s 60. The employer had received a Health Insurance Commission charge and thus deducted the amount of it from the s 66 and s 67 payments. The applicant then claimed the amount of the charge from the respondent, providing (as here) only a copy of the Commission's printout as to payments within a certain period. Neilson J struck out an application claiming the amount of the charge under s 60, in my respectful opinion quite rightly, because no verification of the expenses claimed had occurred, as required by s 60(3) of the Act, and hence no "dispute" existed within what was then s 106F(1) of the Act. The first respect in which that case was different is that there was no existing s 60 award; here there is, and all the worker seeks is to be reimbursed the amount of the Commission's charge which has been met in compliance with the s 60 award. The second respect in which that case was different is that the employer there did not take any point based on the construction of the Health Act, in particular that based on s 31(1)(a) taken today. Thus while I respectfully agree with his Honour's decision, as I have said, it is not of assistance to me in resolving the present problem. 26. I have concluded, as I have said, as to the second preliminary point raised by way of defence to the motion by the employer that s 31(1)(a) of the Health Act does not provide a discharge of the employer's liability to the worker to pay s 66 and s 67 lump sums pursuant to the award, because my award also includes, by way of later consent amendment, a general order for s 60 expenses, which prima facie would cover the expenses levied by way of charge on the employer by the Health Insurance Commission pursuant to the Health Act. 27. That said, it is for the worker to prove that the sums included in the charge are in fact proper s 60 expenses incurred as a result of the injuries within the meaning of the Act found by me to have occurred in my previous judgment. As I pointed out in argument to Ms Webster for the worker, the employer is not bound by the worker's statement to the Commission, and for all the employer and I know, the amounts covered by the charge may not in fact have been expenses resulting from injury within the meaning of the Act and may not therefore be in fact covered by section 60 of the Act, and may indeed have been incurred as a result of other non work related conditions the worker may have suffered from time to time. The requirement that the worker prove these matters of course answers the point raised by Mr Williams that a finding against his client on the preliminary argument raised by it represents compulsory quantification of the employer's liability under s 60 of the Act. 28. I propose to adjourn this motion for three months to permit the gathering of further evidence by the worker on this question and to reserve the costs of today. Ms V Webster instructed by Geoffrey Edwards & Co. appeared for the applicant Mr D L Williams instructed by Bartier Perry appeared for the respondent DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.