NSW Workers Compensation: What is considered a reasonably necessary treatment expense?  

Section 60 of the Workers Compensation Act 1987 (NSW) states that:

1. If, as a result of an injury received by a worker, it is reasonably necessary that:

• any medical or related treatment (other than domestic assistance) be given, or
• any hospital treatment be given, or
• any ambulance service be provided, or
• any workplace rehabilitation service be provided,

the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).

Therefore, the key question is whether the proposed treatment is ‘reasonably necessary’.

So, what is ‘reasonably necessary’? To the layman, this sounds like such a broad concept. However, this question was answered in the case of Diab v NRMA Ltd [2014] NSWWCCPD 72, whereby the then Workers Compensation Commission held the view that the following matters are to be considered when determining whether a proposed treatment is ‘reasonably necessary’:

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, and

the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

Therefore, having your doctor simply make a referral for a proposed treatment (in particular to treatment such as surgery) without addressing the above factors, will most likely be insufficient for the insurer to approve the proposed treatment. The insurer will consider the medical evidence on file and may ask your treating doctors for more information before making a decision.

If the insurer disputes liability for the proposed treatment, they are required to provide this decision in writing, commonly known as a “Section 78 Notice”. The insurer may dispute liability for the injury and subsequent related treatment or accept liability for the injury but dispute liability for the proposed treatment on the basis that it is not ‘reasonably necessary’. Regardless of what the insurer disputes, they must provide their reasoning and include any evidence they have relied upon to make their decision.

If you have received a Section 78 Notice, or if the insurer has informed you that they will not be paying for your proposed treatment, you should contact Littles Lawyers immediately for legal advice.

Further, in most cases, the insurer only has 21 days from the date they received the treatment request to make a decision. If the insurer has exceeded this timeframe of 21 days, you should contact Littles Lawyers so we can represent you and assist you with getting your treatment approved.

Our Head of NSW Claims, Jessica Cheung is an approved lawyer with the Independent Legal Assistance and Review Service (ILARS) scheme and therefore we can apply for ILARS grant funding on your behalf. If IRO approves your ILARS grant application, IRO will pay for your legal fees and any disbursements.  Therefore, you can access and retain our legal services to provide you with comprehensive legal advice and/or assist you to challenge and overturn the insurer’s Section 78 Notice with no cost payable by you.