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Corinna Edwards | June 2012 | Employers Liability

In the matter Tamiko Nishi v Macquarie Group Services Australia Pty Ltd (7 May 2012) (Nishi), Arbitrator Sweeney considered whether or not surgeries undertaken overseas in relation to a workplace injury fell under the definitions of ‘medical treatment’ and/or ‘hospital treatment’.

Who does this impact?

The Arbitrator found that the treatment received by the worker overseas was not ‘medical or related treatment’ within s60(1)(a) of the Workers Compensation Act 1987 (the 1987 Act), but was ‘hospital treatment’ under s60(1)(b) of the 1987 Act.

In Nishi, the worker sustained a right foot injury on 13 August 2010 arising as a result of her employment. In November 2010, the worker relocated to Singapore. The worker underwent treatment for her right foot as follows:

Claims officers considering declining liability for medical expenses when the treatment was undertaken overseas.

What action should be taken? Careful consideration should be given to claims where an injured worker receives treatment overseas. In particular, whether this treatment was or is to be performed in a ‘hospital’.


Overseas Treatment: What’s payable?

Arbitrator’s Decision Facts of the Case

1. Excise of the sesamoid bone on 7 January 2011 in Singapore performed by Dr Yip; 2. Consultations on 12 and 14 February 2011 at Canossa Hospital in Hong Kong; 3. Consultations and imaging studies on 18 and 19 February 2011 at Shanghai United Family Hospital in Shanghai; 4. Treatment on 21 March 2011 in Guangdong, China; and 5. Surgical treatment on 5 July 2011 in Sydney performed by Dr Ozman.

Issues The issues for consideration at Arbitration Hearing were: 1. Was the treatment provided ‘medical or related treatment’ pursuant to s60(1)(a) of the 1987 Act? 2. Was the treatment provided ‘hospital treatment pursuant to s60(1)(b) of the 1987 Act?


Overseas Treatment: What’s payable? Corinna Edwards | June 2012


Decision Medical or Related Treatment ‘Medical or related treatment’ is defined as ‘treatment by a medical practitioner ...’ (s59 of the 1987 Act). A ‘medical practitioner’ is defined as ‘a person registered under the Health Practitioner Regulation National Law to practice as a medical practitioner’ (s21 of the Interpretation Act 1987). Arbitrator Sweeney found that the medical professionals who performed the worker’s treatment overseas were not registered under the Health Practitioner Regulation National Law to practice as a ‘medical practitioner’. Therefore, the treatment undertaken was not ‘medical or related treatment’. Hospital Treatment ‘Hospital Treatment’ is defined as ‘treatment (including treatment by way of rehabilitation) at any hospital or at any rehabilitation centre’ (s59 of the 1987 Act). Arbitrator Sweeney found that the treatment provided in Singapore on 7 January 2011, Hong Kong on 12 and 14 February 2011 and Shanghai on 18 and 19 February 2011 were undertaken in a hospital, and thus ‘hospital treatment’ and compensable under section 60(1) (b) of the 1987 Act.

For more information, please contact: Corinna Edwards Lawyer T: 02 8257 5702 M: 0400 624 162

Arbitrator Sweeney determined that the treatment provided in Guangdong was undertaken in a medical centre and therefore was not considered ‘hospital treatment’ and not compensable under section 60(1)(b) of the 1987 Act. The Arbitrator rejected that the definition of ‘hospital treatment’ should be geographically restricted to New South Wales or Australia.

Conclusion On the face of it, Employers and Insurers are liable for treatment performed overseas if it is performed in a ‘hospital’. However, it remains open to decline medical expenses if the treatment provided was not in relation to the injury or not reasonably necessary. This will depend on the facts of each claim. Syd | Lvl 29 Angel Place, 123 Pitt St, NSW 2000 T: 02 8257 5700 | F: 02 9239 0922 Melb | Lvl 10 North Tower, 459 Collins St, VIC 3000 T: 03 8600 5000 | F: 03 8600 5099

Overseas Treatment: What’s payable?