26Liability for medical etc. services and burial etc. costs

26 Liability for medical etc. services and burial etc. costs (a) an employer is liable to pay compensation under any provision of this Act in respect of the death incapacity or disablement of a worker resulting from or materially contributed to by injury or disease; or (b) the death of a worker results from or is materially contributed to by injury or disease and no compensation is payable under any other provision of this Act by reason only that the worker leaves no dependants; or (c) a worker suffers injury and no compensation is payable under any other provision of this Act by reason only that the worker is not incapacitated either totally or partially for any period— then the employer shall be liable to pay as compensation— (i) the reasonable costs of the medical, hospital, nursing and ambulance services incurred by reason of the injury or (in the case of disablement caused by disease) by reason of the disease on and after the date of the disablement; and (ii) where death results from the injury or disease—the reasonable costs of burial or cremation. (2) In this section unless inconsistent with the context or subject-matter— (a) ***ambulance service*** means the conveying of the worker by whatever reasonable means for the purpose of his receiving medical or hospital services or to his place of residence after receiving or seeking either of such services; S. 26(2)(b) substituted by No. 50/1994 s. 117. (b) ***hospital*** means— (a) a public hospital, denominational hospital, private hospital or day procedure centre within the meaning of the **Health Services Act 1988**; or (b) any hospital situated outside Victoria; S. 26(2)(c) amended by Nos 7455 s. 9(b)(i), 23/1994 s. 118(Sch. 1 item 59.9(a)). (c) ***hospital service*** includes maintenance attendance and treatment in any hospital and the provision by any hospital of medical attendance and treatment and of nursing attendance and of medicines and medical surgical and other curative materials appliances or apparatus and of other usual and necessary hospital services (whether with respect to the treatment of the injury or disease of the worker or with respect to the industrial rehabilitation of the worker) but does not include medical care and attention provided by a registered medical practitioner who is authorized to charge fees pursuant to the provisions of section 70A of the **Hospitals and Charities Act 1958** or dental care or attention provided by a dentist who is authorized to charge fees pursuant to the said provisions; (d) ***medical service*** includes— S. 26(2)(d)(i) amended by Nos 9297 s. 7(1), 23/1994 s. 118(Sch. 1 item 59.9(b)), 63/1996 s. 98(Sch. item 5), 78/1997 s. 97(Sch. item 4.1). (i) attendance examination or treatment of any kind by a registered medical practitioner registered dentist registered optometrist registered physiotherapist registered chiropractor or registered osteopath or registered podiatrist; S. 26(2)(d)(ii) amended by No. 8733 s. 10(a)(i). (ii) the provision and the repair adjustment or replacement (as may from time to time become necessary) of skiagrams crutches artificial members eyes or teeth or spectacle glasses or hearing aids including (without limiting the generality of the foregoing) the repair or replacement of crutches artificial members eyes or teeth or spectacle glasses or hearing aids destroyed or damaged at the time of the injury giving rise to the claim; S. 26(2)(d)(iii) amended by No. 7455 s. 9(b)(ii). (iii) the provision to or for the worker otherwise than as a patient in a hospital of medical or surgical aids to rehabilitation or treatment or assistance for or with respect to his industrial rehabilitation or of curative appliances or apparatus; S. 26(2)(d)(iv) amended by No. 9549 s. 2(1)(Sch. item 256). (iv) the provision by a registered pharmacist of medicines or curative apparatus appliances or materials; and S. 26(2)(d)(v) amended by Nos 8733 s. 10(a)(ii), 9297 s. 7(2), 23/1994 s. 118(Sch. 1 item 59.9(c)), 78/1997 s. 97(Sch. item 4.1). (v) the provision by a registered medical practitioner dentist optometrist physiotherapist chiropractor and osteopath or registered podiatrist of any certificate or report required by the worker or his legal personal representative or dependants for any purpose relating to the operation of this Act; S. 26(2)(e) substituted by No. 13/2010 s. 51(Sch. item 60.3). (e) ***nursing service*** means a nursing or midwifery service rendered by a nurse or midwife, otherwise than at a hospital or as a member of the nursing staff of a hospital; S. 26(2)(f) amended by Nos 7455 s. 9(b)(iii), 9613 s. 10(a). (f) ***reasonable***, in respect of costs (other than burial and cremation costs) or claims, means reasonable having regard not only to the service or provision actually rendered but also to the necessity of that service or provision in the circumstances of the case and also to any regulations made under section twenty-three of this Act and also to any fees fixed by or under the **Hospitals and Charities Act 1958**. (3) Any employer who has made adequate arrangements to provide workers in his employment with gratuitous medical hospital nursing or ambulance services shall, to the extent of the value of such services, be deemed to have discharged his liability under this section. (4) The payment of the reasonable costs of any service hereinbefore referred to or of burial or cremation shall be made by the employer to the person or body of persons lawfully entitled to payment therefor: Provided that, if the liability to that person or body of persons has already been discharged in whole or in part by a payment by the worker or any other person (whether legally liable to make such payment or not) then the employer shall pay the amount by which the liability has been so discharged to the worker (or his legal personal representative or dependants) or to the other person by whom the liability was so discharged (as the case requires). (5) Where the worker or his legal personal representative or dependants by reason of any prior contract agreement or arrangement made by the worker or by reason of his being a contributor or subscriber to any institution fund or scheme is or are entitled to any of the services hereinbefore referred to or to the workers' burial or cremation free of charge or at a reduced rate or charge, the payment by the employer in respect of the reasonable cost of that service or burial or cremation shall not thereby be reduced, but, after payment of the amount (if any) actually owing to the person or body of persons lawfully entitled to payment therefor, the balance of the reasonable cost thereof shall be paid to the worker or (as the case requires) to his legal personal representative or dependants. (6) The compensation payable under this section shall be in addition to any compensation payable under any other provision of this Act, and no limit imposed on the amount of compensation by any other provision of this Act shall limit or in any manner affect the amount of compensation payable under this section, nor shall the amount of compensation payable under any other provision of this Act be limited or affected by reason only that compensation is also payable under this section. S. 26(7) amended by Nos 10191 s. 270(14)(a), 67/1992 s. 64(11)(a). (7) Any question whether any claim for payment under this section is a proper claim or as to the reasonableness of the amount of any such claim shall, if not settled by agreement of all the persons affected, be determined by the County Court or Administrative Appeals Tribunal upon the application of the employer or any claimant, and the County Court or Administrative Appeals Tribunal may order payment by the employer in accordance with any such determination. S. 26(8) amended by Nos 10191 s. 270(14)(a), 67/1992 s. 64(11)(a). (8) Every order made by the County Court or Administrative Appeals Tribunal under this section shall be deemed an award of compensation under this Act and the provisions of this Act shall apply thereto accordingly. S. 26(9) amended by Nos 10191 s. 270(14)(a), 67/1992 s. 64(11)(a). (9) The payment of the whole of the reasonable costs of any service or burial or cremation pursuant to this section, whether by agreement or upon an order of the County Court or Administrative Appeals Tribunal, shall wholly and finally discharge the worker or his legal personal representative or dependants (as the case may be) and every other person from all liability whatsoever in respect of the costs of that service or burial or cremation. S. 26(10) amended by Nos 10191 s. 270(14)(a), 67/1992 s. 64(11)(a). (10) The jurisdiction of the County Court or Administrative Appeals Tribunal in respect of claims for payment of the costs of any service or burial or cremation under this section shall be exclusive; and no action suit or other proceeding by any person against the worker or his legal personal representative or any of his dependants for the payment or recovery of any costs which an employer is liable to pay under this section shall be entertained by any court. S. 26(11) inserted by No. 8733 s. 10(b), amended by No. 9297 s. 7(3), substituted by No. 9613 s. 10(b). (11) The reasonable costs of burial or cremation of any worker shall not exceed such amount or amounts as are fixed for the purposes of this section by order or successive orders of the Governor in Council published in the Government Gazette. S. 26(12) inserted by No. 9613 s. 10(b), amended by Nos 10191 s. 270(14)(a), 67/1992 s. 64(11)(a). (12) Where a worker dies more than 80 kilometres from his usual place of residence, notwithstanding subsection (11) the County Court or Administrative Appeals Tribunal may, if it so determines order an amount to be paid by an employer with respect to that part of the cost of transporting the body to the burial or cremation that relates to transporting the body from the place of death to 80 kilometres from that residence.