Aftab v Brimbank City Council
[2019] VCC 1464
•11 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST & SERIOUS INJURY LIST
Case No. CI-18-00404 &
CI-19-01772
| MALIK AFTAB | Plaintiff |
| v | |
| BRIMBANK CITY COUNCIL and AUSCO MODULAR PTY LTD AND MALIK AFTAB v VICTORIAN WORKCOVER AUTHORITY | First Defendant Second Defendant Plaintiff Defendant |
---
JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 August 2019 | |
DATE OF JUDGMENT: | 11 September 2019 | |
CASE MAY BE CITED AS: | Aftab v Brimbank City Council & Ors | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1450 | |
REASONS FOR INTERLOCUTORY DECISION
---
Subject: ACCIDENT COMPENSATION
Catchwords: Whether injury from fall at swimming pool premises deemed to arise out of employment; whether swimming program medical treatment; whether swimming program occupational rehabilitation
Legislation Cited: Wrongs Act 1958; Workplace Injury Rehabilitation and Compensation Act 2013; ss3, 39(1), s46(1)(d); Accident Compensation Act 1985
Cases Cited:Buchanan & Brock Pty Ltd v Harris [1957] VR 549; Buchanan & Brock Pty Ltd v Harris (1957) 98 CLR 22; Lindeman Limited v Colvin (1946) 74 CLR 313; Bray v Ministry of Education and MMI Workers Compensation (Victoria) Limited (VCC unreported, ruling 12/2/2000, Judge G D Lewis); Coutts v Stawell Goldmines Pty Ltd & VWA [2018] VCC 474
Decision: In CI-18-00404 (Writ proceeding) Orders sought by second defendant refused
In CI-19- 01772 (Originating Motion proceeding). Issue determined that injuries suffered in fall not deemed to arise out of or in course of employment
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allan | Arnold Thomas & Becker |
| For the First Defendant | Mr K O’Brien Ms M Marchingo | DLA Piper |
| For the Second Defendant | Mr G Coldwell | Colin Biggers & Paisley |
| For the VWA | Ms S Manova | Russell Kennedy |
HER HONOUR:
1 On 21 February 2015, Mr Malik Aftab (the plaintiff) slipped and fell in a temporary toilet block at the St Albans Leisure Centre where he had been using the swimming pool (“the fall”). He has commenced a proceeding claiming damages for injuries allegedly suffered in that fall, but the procedural path for him has been more than usually complicated.
2 Now before the court is an application by summons by a defendant in the proceeding for damages, and referral for determination of a preliminary issue in another proceeding, which both centre on the issue of whether any injury suffered by the plaintiff in the fall on 21 February 2015 arose out of or in the course of employment. This issue turns on whether pursuant to s 46(1)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRC Act”), such injuries are deemed to have arisen out of or in the course of employment. The ultimate consequence is that if any injury suffered in the fall is deemed to have arisen out of or in the course of employment, the plaintiff must establish that it was a “serious injury” as a threshold to bringing proceedings for damages.
Procedural history
3 In an Amended Writ and Statement of Claim dated 2 August 2018, the plaintiff claims damages in respect of injuries allegedly suffered in the fall, against the Brimbank City Council (first defendant), which operated the St Albans Leisure Centre, and against Ausco Modular Pty Ltd (second defendant), which had supplied the temporary toilet block situated at the leisure centre in which the plaintiff fell. Prior to issuing that proceeding, the plaintiff had obtained a finding from a Medical Panel which assessed him to have suffered a significant injury under Part VBA of the Wrongs Act 1958 (Vic), entitling him to claim damages for non-economic loss under that Act.
4 After being joined to that proceeding, the second defendant filed a summons[1] seeking a declaration that the injuries the subject of the plaintiff’s claim in that proceeding are deemed to have occurred in the course of employment pursuant to s46(1)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRC Act”), and orders that the Amended Writ and Statement of Claim be struck out, as a nullity or on the basis that it fails to disclose a cause of action.
[1]Summons filed 29 October 2018
5 In reaction to the second defendant’s application by summons, the plaintiff applied to the Victorian WorkCover Authority (VWA) for a finding that in the incident on 21 February 2015 he suffered a serious injury. The VWA refused his application. An Originating Motion was issued on his behalf seeking a declaration that he has a “serious injury” within the meaning of Division 2 of Part 7 of the WIRC Act, and an order granting him leave pursuant to s335 of the WIRC Act to institute proceedings for damages[2].
[2]The endorsement wrongly seeks leave to bring proceedings for damages against the defendant (VWA) – but for this preliminary point nothing turns on that.
6 The VWA disputes that any injury which the plaintiff suffered on 21 February 2015 arose out of or in the course of the plaintiff’s employment, and that issue has been referred under Order 47.04[3] to be heard as a preliminary issue to anything further occurring in the Originating Motion proceeding.
[3]The court was told that this is what was intended to be referred, although the orders did not specify the issue or the sub-rule.
7 These matters were listed to be heard together, and each party had legal representation. The first defendant in the damages proceeding made no separate submissions in relation to these issues, but stands to benefit if the second defendant’s application is successful.
8 The materials before the court were: three affidavits filed on behalf of the second defendant in support of its application by Summons, and the exhibits to those affidavits; affidavits of the plaintiff in support of an earlier application for a finding of serious injury; his affidavit in support of the application the subject of the Originating Motion; and an affidavit filed on behalf of the VWA and the exhibits to it. Those materials are listed in a schedule to this decision.
9 Although the VWA’s written submissions originally addressed more generally the question of whether injuries suffered by Mr Aftab on 21 February 2015 arose out of, or in the course of, his previous employment, it was conceded during the hearing that, on a factual basis, they could not be found to have done so. Therefore, the only basis on which it could be found that his injuries arose out of or in the course of his employment is if they are deemed to have done so pursuant to s46(1)(d) of the WIRC Act.
Relevant legislative provisions
10 Relevantly, s 46(1)(d) of the WIRC Act provides:
“(1) An injury to a worker is deemed to arise out of or in the course of employment for the purposes of section 39(1) and (2) if the injury occurs—
…
(d)while the worker is in attendance at any place for the purpose of obtaining a medical certificate, receiving medical, surgical or hospital advice, attention or treatment, receiving a personal and household service or an occupational rehabilitation service or receiving a payment of compensation in connection with any injury for which the worker is entitled to receive compensation or for the purpose of submitting to a medical examination required by or under this Act.”
11 Related definitions in the Act are:
“ medical service includes—
(a)attendance, examination or treatment of any kind by a medical practitioner, registered dentist, registered optometrist, registered physiotherapist, registered chiropractor, registered osteopath or registered podiatrist; and
(b)the provision and, as may be necessary from time to time (including at the time of the injury), the repair, adjustment or replacement of crutches, artificial members, orthoses, eyes, teeth or spectacle glasses; and
(c)the provision and, as may be necessary from time to time (including at the time of the injury), the repair, adjustment or replacement of hearing aids of a type approved by the Authority by a person or a class of persons approved by the Authority; and
(d)the provision by a registered pharmacist, on the request of a medical practitioner or registered dentist, of medicines or curative apparatus, appliances or materials; and
(e)the provision, on the request of a medical practitioner, by a person approved by the Authority of any health service approved by the Authority; and
(f)the provision by a medical practitioner, registered dentist, registered optometrist, registered physiotherapist, registered chiropractor, registered osteopath or registered podiatrist of—
(i)a certificate required by the worker, the worker's dependants, an employer, the Authority or a self-insurer; or
(ii)a report authorised by the Authority or a self-insurer—
for any purpose relating to this Act or the Accident Compensation Act 1985; and
(g)the provision, at the request of a medical practitioner, hospital or provider of a hospital service, of special food or a special food formula; and
(h)the provision, at the request of a medical practitioner, of room temperature control equipment for a person who is unable to adequately regulate his or her own body temperature; and
(i)the provision, at the request of a medical practitioner, of equipment intended to treat or stabilise any injury; and
(j)the provision of anything needed to operate, run, maintain or repair any equipment referred to in paragraph (h) or (i)”
“occupational rehabilitation service means any of the following services provided by a person who is approved by the Authority as a provider of an occupational rehabilitation service—
(a)initial rehabilitation assessment;
(b)functional assessment;
(c)workplace assessment;
(d)job analysis;
(e)advice concerning job modification;
(f)occupational rehabilitation counselling;
(g)vocational assessment;
(h)advice or assistance concerning job‑seeking;
(i)vocational re-education;
(j)advice or assistance in arranging vocational re-education;
(k)advice or assistance in return to work planning;
(l)the provision of aids, appliances, apparatus or other material likely to facilitate the return to work of a worker after an injury;
(m)modification to a work station or equipment used by a worker that is likely to facilitate the return to work of the worker after an injury;
(n)any other service authorised by the Authority—
but does not include a hospital service.”
The parties’ contentions
12 The second defendant contends that under s 46(1)(d), any injury suffered by the plaintiff in his fall at the St Albans Leisure Centre is deemed to have arisen out of or in the course of his employment and, as a consequence, he is precluded from bringing a claim for damages in respect of such injuries unless he first establishes that he suffered a “serious injury”. He must do that through one of the channels provided in the Act[4]. As he had not done so before issuing the Writ, it is contended that it was a nullity or irregular and should be struck out.
[4]WIRC Act, s335
13 Somewhat unusually, the plaintiff and the VWA are in agreement in disputing the second defendant’s contentions. Both argue that s46(1)(d) does not operate to deem what occurred to the plaintiff on 21 February 2015 to be injury arising out of or in the course of his employment.
Factual background
14 On 10 May 2008, the plaintiff suffered injury to his back in the course of his employment as a taxi driver, when lifting a heavy suitcase into the boot of the taxi. He had time off work and underwent medical treatment as a result of that injury. In June 2011 he made a claim for compensation pursuant to the Accident Compensation Act 1985. Although initially rejected[5], in November 2011, QBE Workers Compensation (Vic) Limited (QBE), accepted liability for his WorkCover claim.[6]
[5]CB 170 – Conciliation Outcome certificate
[6]Affidavit of Shawn Kim 25 July 2019, paragraph 3
15 Over the years following his back injury, the plaintiff has been under the ongoing care of Dr A Sheriff as his general practitioner. He was referred for various scans, and to specialists for advice on treatment. He was prescribed medication. He underwent a CT guided nerve root injection in August 2008, and a CT guided epidural injection in February 2009, however the latter did not give significant relief. Despite surgery being suggested by one neurosurgeon, he was reluctant to undergo that. From 2012 he was generally managed with conservative treatment, including medication, physiotherapy and hydrotherapy. Apparently differentiating it from hydrotherapy, he also described swimming as much as possible.[7]
[7]Affidavit of plaintiff of 7 April 2014, paragraph 19
16 In late 2011, the plaintiff’s general practitioner, Dr Sheriff, had recommended that the plaintiff undergo a swim/gym program, and supported a claim for that to be funded by QBE.[8] In February 2012, QBE accepted liability for the plaintiff to undergo a three month swim/gym program as requested.[9]
[8]Letter 8 December 2011 – CB 171
[9]21 February 2012 – CB 172
17 Between June 2012 and April 2014, there was a series of further requests by Dr Sheriff to QBE for further three month swim/gym programs for the plaintiff.[10] There is no evidence that QBE accepted liability for any further swim programs until mid-2014. There is no direct evidence that they were rejected, but the VWA invites me to infer that they were – or at least that they were not accepted – because the affidavit of its former litigation manager, Mr Shawn Kim, mentions no further acceptances or approvals of such a program until 2014.
[10]12 June 2012, 8 January 2013, 29 April 2013, 10 May 2013, 29 May 2013, 28 August 2013, 4 September 2013, 10 December 2013, 14 April 2014, 15 July 2014 and 14 November 2014
18 The second defendant argues that I should not draw that inference, and indeed should find that there were ongoing swim programs accepted by QBE, because the plaintiff mentions continuing to go swimming, and there is mention in various medical reports over that period that the plaintiff said he was continuing to swim to relieve his back pain, and in September 2013, that funding for it had recently ceased.[11] Further, the silence about them in Mr Kim’s affidavit is emphasised by the second defendant.
[11]Report of Dr Shah – September 2013
19 From the dates on the letters of Dr Sheriff supporting or requesting a three month swim/gym program for the plaintiff, I infer that QBE had not been accepting liability for regular renewal of swim programs, at least not between 29 April 2013 and 10 December 2013. These letters were written much more frequently than three-monthly, and it is implicit that the reason for so many letters over that period was that the programs had not been approved or had liability accepted for them by QBE.
20 The situation changed in 2014. On 7 January 2014, QBE wrote to the plaintiff and to his doctor agreeing to pay the reasonable costs of a swim/gym program which had been requested by his medical practitioner in December 2013.
21 Further, after seeking additional information from the doctor in July 2014, in relation to his request dated 15 July 2014 for payment of another swim/gym program for the plaintiff, and a questionnaire having been filled in by the doctor on 2 September 2014, QBE again agreed to pay the reasonable costs of a swim/gym program. This was subject to its policy and guidelines. It is clear that those guidelines did not envisage approval of payment for regularly renewed 3 monthly programs, and any further program would need to be assessed individually including as to the success of the previous one.
22 On 18 November 2014, Dr Sheriff provided more support for the request of September 2014 for a further program to run from 1 October to 31 December 2014. That was treated as a request for a further swim/gym program for the plaintiff, in a letter acknowledging that request dated 21 November 2014. It was not until 19 February 2015 that a response was notified to the plaintiff, in the form of a telephone call, informing him that it had been refused. That decision was confirmed in a letter dated 25 March 2015. In the meantime, the plaintiff had suffered his fall at the St Albans Leisure Centre, on 21 February 2015.
23 The plaintiff did not challenge the refusal of liability for that program.
24 In April 2014, presumably under the Accident Compensation Act 1985, the plaintiff applied for a serious injury finding in respect of his back injury. In late 2014 or early 2015, he reached a settlement of a common law claim against his former employer in respect of the back injury suffered on 10 May 2008, after which QBE would only be liable for any further medical and like expenses.
25 In his affidavit in support of a serious injury finding in respect of his work related back injury[12], the plaintiff described having, in the last couple of months, returned to physiotherapy, attending around once a fortnight, and that he also continued to go swimming as often as possible at the St Albans Leisure Centre during which he would walk up and down the pool and do exercises in the water. He described also going to the YMCA Aquatic Centre in Derrimut daily.[13]
[12]7 April 2014
[13]Affidavit of plaintiff of 7 April 2014, paragraph 25
26 I find on the evidence that the plaintiff was in attendance at St Albans Leisure Centre on 21 February 2015 to swim or otherwise exercise in the swimming pool as he did regularly to obtain relief from back symptoms of his work injury. I am satisfied that his doctor had recommended that he continue with such swimming. I find that at that time the VWA had refused liability to pay for his attendance there.
Determination of Issues
27 The second defendant’s application depends on whether s46(1)(d) applies and deems any injury suffered by the plaintiff in the fall as having arisen out of, or in the course of, employment. The second defendant’s primary argument is that in the circumstances, the plaintiff’s attendance at the St Albans Leisure Centre that day was for “medical treatment”. Alternatively, it is argued that his attendance was for an “occupational rehabilitation service”, although that is less forcefully argued.
Was the plaintiff’s attendance at the St Albans Leisure Centre for “medical treatment”?
28 There is no definition of “medical treatment” in the WIRC Act. The second defendant relies on common law discussion of the meaning of that expression in a predecessor statute dealing with a similar deeming provision, which included attendance at any place for medical treatment for work-related injuries.
29 The meaning and breadth of what could amount to medical treatment was discussed in Buchanan & Brock Pty Ltd v Harris, in the Victorian Full Court[14] and then in the High Court[15]. This case is the lynchpin of the second defendant’s contentions.
[14][1957] VR 549
[15](1957) 98 CLR22
30 In 1957, the Full Court of the Supreme Court of Victoria dealt with a case stated arising out of a decision of the Workers Compensation Board in a dependant widow’s claim that her husband’s death was relevantly connected with his employment and entitled her to compensation. In that case, a man who had suffered injury to his leg at work was advised by his doctor to rest and apply heat to his leg. On a succession of house calls, the doctor advised the man to remain in bed and rest for about another week. Unfortunately, three days later, he suffered symptoms of what was subsequently diagnosed as cancer of the stomach from which he died less than a month later. There was no causal or other connection between the carcinoma and the leg injury nor between the carcinoma and his work.
31 The case stated to the Full Court, based on the Board’s findings of fact, was whether the Board erred in law in finding that the man’s death should be deemed to arise out of, or in the course of, his employment pursuant to a previous version of s46(1)(d). That issue in that case turned on whether he suffered that condition “in attendance at any place”, for the purpose of receiving medical advice or treatment for a compensable injury. It turned on whether being at home resting on medical advice could be “attendance at any place” for medical treatment. However, in finding for the worker’s widow, Lowe J stated as follows:
“Medical treatment may take many forms: it may involve a course of conduct; it may involve the taking of physic; and it may even be abstention from particular action. … Where a patient is doing what he is doing pursuant to medical advice I think that is comprehended in medical treatment even if what he is doing is merely avoiding action, or resting. ... In other words the avoidance of action and resting may be comprehended in the term ‘medical treatment’.”
32 O’Bryan J agreed with Lowe J’s decision, not specifying whether he agreed with the width of interpretation of medical treatment, or just with whether being at home resting could be “attendance at any place” for medical treatment. Barry J did not dissent, but was not unequivocally supportive, stating:
“I am not fully persuaded that the interpretation which has commended itself to the other members of the Court is correct, but I am not prepared to carry my doubts to the point of dissent.”
Barry J noted that the enlargement of the ordinary meaning of the expression “in the course of employment” was so that it would embrace journeys to and from a worker’s place of employment, and to and from any place when travelling has been necessitated by something connected with or resulting from the employment. He expressed doubt as to the notion that, once the worker reaches his home the course of employment continues there, but did not entertain a sufficiently strong opinion to the contrary to induce him to dissent. He did not specifically comment on the width of meaning of “medical advice or treatment”.
33 On appeal from that decision to the High Court, the decision was reversed insofar as attendance at any place for treatment could embrace being at home. The majority[16] did not deal directly with the meaning of medical treatment applied by Lowe J. In dissent, Webb J not only disagreed with the majority about whether attendance at any place could include the worker’s home when he was told to rest, but also discussed the expression “medical, surgical or hospital advice, attention or treatment”. In the context of an Act which should receive a liberal interpretation, and in a context where it is provided that mere presence at a place is enough to qualify for further compensation when the injury occurs there, Webb J stated as follows:
“It seems to me that this expression should not be held to exclude compensation for injury occurring in any such place whilst things are being done by way of treatment of the injured employee, either by a doctor or by a person acting under his instructions, and whether that person be skilled or otherwise and even if they are done by the plaintiff himself, provided they are within the scope of the doctor’s instructions. The emphasis in this context is I think on the place where the things are done and not on the special qualifications of those actually doing them.”[17]
[16]Dixon CJ, Kitto J, Taylor J and McTiernan J
[17]98 CLR 22 at 32
34 Somewhat surprisingly, there has been little reference in higher court decisions to the meaning of medical treatment in this context since. The second defendant submits that these wider interpretations are still good law and bind this court. Although stated many years ago, they are acknowledged in a current Accident Compensation service[18] as current law.
[18]Accident Compensation Victoria, LexisNexis, [s 83.9]
35 The second defendant argues that on the facts, Mr Aftab’s presence at the leisure centre for swimming was for the purpose of gaining relief from back pain from a compensable injury, was pursuant to the ongoing advice of his doctor, and as such constituted “medical treatment” within the Lowe J and Webb J descriptions of what that term would include. It did not matter that no doctor or other health professional, or even swimming program supervisor was present at that session in the pool, as those interpretations specifically envisaged a worker following medical advice when alone. Although it is submitted that I should find that there had been ongoing payment for such swim programs, it did not matter whether or not QBE had refused liability to pay for a swim program at that stage, because in fact the plaintiff had undertaken swim/gym programs on an ongoing basis between early 2012 and the time of the fall, all at the recommendation of his general practitioner, and their nature as “medical treatment” did not change according to funding or approval by QBE. Further, because Dr Sheriff had recommended it in November 2014, it could be inferred that if it were funded he would still be supervising it under the terms required by the VWA guidelines.
36 The second defendant argues that the definition in the Act of “medical services” is not relevant to whether the plaintiff’s attendance was for “medical treatment”.
37 The VWA submits that neither the description of medical treatment by Lowe J nor by Webb J is strictly binding on this court, because, in the case of Lowe J, it was obiter dicta and, in the case of Webb J, it was part of a dissenting decision in any event.
38 Further, the VWA submits that whilst there is no definition in the Act of medical treatment, assistance can be obtained from the definition that exists of “medical services”. It is submitted that on the facts in the current case, the swimming or use of the swimming pool for exercise which was the purpose of Mr Aftab’s attendance that day, does not fall within the definition of medical service. There are only two possible sub-paragraphs of the definition which might possibly cover it -
“(a) attendance, examination or treatment of any kind by a medical practitioner, registered dentist, registered optometrist, registered physiotherapist, registered chiropractor, registered osteopath or registered podiatrist;
or
(e) the provision, on the request of a medical practitioner, by a person approved by the Authority of any health service approved by the Authority.”
39 The VWA submits that, on its plain reading, part (a) does not cover the plaintiff’s attendance at the St Albans Leisure Centre because there was no medical practitioner nor other named registered health professional in attendance, whether to examine or treat the plaintiff. As to whether part (e) applies, even though there had been a request by Dr Sheriff for approval by the Authority of a further swim/gym program for the plaintiff, it had not been approved at the time of the plaintiff’s fall and, indeed, had been orally refused two days earlier, which decision was subsequently confirmed in writing.
40 The plaintiff’s submissions, while globally adopting those of the VWA, concentrated on a different aspect of the deeming provision under s46(1)(d), namely the expression “in connection with” any injury for which the worker is entitled to receive compensation.
41 The plaintiff submits that the words “in connection with” must impose some limits on what is covered – that is cannot be given an entirely unfettered meaning. Somewhat unusually for a plaintiff, reliance is placed on one of the stated objectives of the Act being to “ensure workers’ compensation costs are contained so as to minimise the burden on Victorian businesses”. It was submitted that where injuries suffered in the course of treatment having only a tenuous connection with a compensable injury considered to fall within sub-s46(1)(d), there would be a potentially unlimited and unjustified liability placed on the VWA and Victorian business.
42 The need for sensible limits to be placed on the potential operation of s46(1)(d) is said to be reflected in the comments (submitted to be “musings”) of the majority in the High Court in Buchanan, where the comparison between being advised to rest in bed at home or to take a sea voyage was raised, and the latter was noted to produce an inversion of the plain words of the clause.
43 The plaintiff submits that the swimming session on 21 February 2015 was not “medical treatment” and nor was it “in connection with” the plaintiff’s compensable injury of 2008. It was submitted that there are a number of factors to take into account in determining whether his attendance at the pool was for “medical treatment”, including the nature and reasonableness of the “treatment”, whether he was entitled to compensation for it by way of funding, the effluxion of time between the compensable injury and the purported treatment, the extent to which it was undertaken on the advice or direction of a medical practitioner, the temporal connection between advice or direction and the purported treatment, and the extent to which the treatment was undertaken under the supervision of a medical practitioner.
44 What occurred on 21 February 2015 it is submitted, was a self-managed swimming session described by the plaintiff himself as “walking through the water”, some months after Dr Sheriff had last written to the Authority recommending he be funded for a further swim/gym program (the last request being dated 18 November 2014), and in fact after the VWA had refused liability for it. The previous program which had been approved had, according to the application of Oswetry scores, apparently done little to improve the plaintiff’s level of functioning, and the previous three funded programs had occurred at the YMCA Derrimut and were the subject of a clinical management plan under Dr Sheriff, whereas the subject injury was not.
Determination of whether the attendance was for “medical treatment”
45 Although from eminent jurists, I do not consider that this court is authoritatively bound by the interpretations of the expression “medical treatment” by either Lowe J or Webb J in Buchanan and Brock v Harris. That is because I consider that Lowe J’s interpretation of “medical treatment” was obiter dicta, and further was not specifically supported by either of the other Justices. Webb J’s was in the minority and his interpretation impliedly dismissed by the majority though the comparison with following a doctor’s advice to take a sea voyage. I do not overlook that they are of persuasive authority.
46 Although the term “medical treatment” is not defined, and has remained in deeming provisions extending coverage to attendance for medical advice attention or treatment for more than 70 years since the decisions in Buchanan, in my view, the definition of medical service has become highly relevant in considering the meaning of the expression “medical treatment” where it still appears in the deeming provision which is now in s 46(1)(d).
47 The definition of “medical service” is wide, and inclusive. Viewed overall, and not merely as to which parts might apply to the plaintiff’s activities on 21 February 2015, it appears intended to cover the wide and, over recent decades, growing or expanding fields of treatment-related services which might reasonably be appropriate to be paid for treatment of workers’ compensable injuries. It can be seen as consistent with the extension and beneficial approach which Lowe and Webb JJ, in 1957, took to the meaning of attendance at any place for the purpose of receiving medical… advice attention or treatment. That being so, the need for “medical treatment” to be given a wide and expansive meaning, has been at least partly subsumed into specific provisions in the sub-parts of “medical services”.
48 Indeed, medical treatment is itself is but one component of sub-part (a) of the definition of “medical services”.
49 The width together with the specificity of the sub-parts of the definition of “medical services” does not appear to warrant such an expansive approach to extend coverage of liability to the meaning of attendance for medical treatment as was taken by Lowe J and Webb J.
50 That is not to say that the expression “medical treatment” has been replaced with “medical service”, but in my view it has relevance to how wide an interpretation of “medical treatment” is warranted.
51 I also consider that in interpreting what constitutes medical treatment there must be some boundaries or limits. In the common law setting, an example is the decision in Lindeman Ltd v Colvin[19], although that was not in the context of statutory interpretation of a beneficial nature.
[19][1946]74 CLR 313
52 It is clear that most of what a doctor recommends in the way of medication, activity, or refraining from certain activities, will constitute “medical treatment” for work related injuries in most circumstances. However, I am not convinced that anything recommended by a doctor necessarily becomes medical treatment. For example, there must be some role in s 46(1)(d) for the word “advice” – that is that the purpose for attending the Leisure Centre that day was to receive medical advice, attention or treatment. If a doctor advises an injured worker, some considerable time after that injury that no more formal treatment is likely to assist, and to take over-the-counter analgesics or to apply an over-the-counter balm to sore areas, and if that patient while attending a supermarket or a chemist to purchase such items is injured, I do not consider that s46(1)(d) would extend the definition of the course of employment to cover that injury. Similarly, although walking daily in the months after back surgery on a doctor’s advice may well constitute “medical treatment”, walking daily years later although approved by a doctor in general terms would seem harder to categorise as undergoing medical treatment in connection with the compensable injury. That is not to suggest that the passage of time since the occurrence of a compensable injury should be determinant, but in my view it is relevant, and will in some instances sever the “connection with” the compensable injury, and potentially turn a doctor’s advice into generalised health advice rather than treatment in connection with the original work related injury.
53 I agree with the second defendant’s argument that the nature of what was occurring did not depend on whether or not QBE had accepted liability to pay for it. However, it does not follow that just because QBE had paid for one or more previous swim programs, those or any following similar programs constituted medical treatment. Indeed the correspondence from QBE when liability for a swim program was accepted, called it a “medical service”, and that appears to have been under sub-part (e) of that definition, on those occasions having approval from the Authority. While that categorisation by the VWA or QBE is not determinative of the true nature of the activity, the fact of payment for some of the programs does not make them medical treatment.
54 That brings consideration back to whether in the circumstances of this case the plaintiff’s attendance at the premises that day constituted “medical treatment”.
55 It was more than seven years since the plaintiff had suffered his work-related back injury, and some four years since the doctor had first recommended a 3-month swim/gym program for him. The doctor had certainly renewed requests for such a program to be funded over the interim period, and two more such programs had been funded in 2014. The plaintiff’s submission points to the apparent lack of improvement in functionality from the last program as relevant. I do not agree that to be medical treatment a procedure or activity must bring about improvement in functionality – indeed some medical treatment will be solely to relieve immediate symptoms, or to limit a decline or deterioration in a medical condition. It was in my view based on the evidence including the plaintiff’s descriptions of it, self-activated exercise, which the plaintiff found gave temporary relief for his back pain, and which was in accordance with a long-standing recommendation of his doctor. Indeed, on my reading of the plaintiff’s mention of his attendance at the St Albans Leisure Centre – he himself regarded that as different from what he called hydrotherapy, or attendance at the YMCA centre at Derrimut for a swimming program. His attendance there that day for regular swimming seems comparable to walking regularly on the recommendation of a doctor for one’s general health.
56 I am not satisfied that the plaintiff’s attendance at the St Albans Leisure Centre on 21 February 2015 falls within any sub-part of the definition of “medical services”. The closest in nature would be sub-part (e) – but it was not approved by QBE – indeed it had been refused funding only a couple of days earlier. It did not fall within sub-part (a) as no medical practitioner or other registered health professional was in attendance or supervising or administering advice or treatment.
57 For these reasons I am not satisfied that the plaintiff’s swimming or exercise in the swimming pool at the St Albans Leisure Centre was properly to be characterised as “medical treatment”, and in my view it would be stretching the interpretation of s 46(1) (d) beyond its proper meaning to find that the plaintiff was in attendance at the St Albans Leisure Centre at the time of his fall to receive medical attention, advice or treatment.
Was the plaintiff’s attendance for occupational rehabilitation services?
58 The second defendant’s written submission included that the attendance at the St Alban’s Leisure Centre could be found to be for an occupational rehabilitation service. The submission was not pressed with much conviction during the oral hearing. The facts do not readily bring the plaintiff’s attendance there within any part of the definition of “occupational rehabilitation service”. Any such service must be provided by a person who is approved by the Authority as a provider of an occupational rehabilitation service, and there is no evidence that the St Albans Leisure Centre was such an approved “person” – the evidence is that the programs which had previously been accepted for payment by QBE were provided by YMCA Centre at Derrimut, and anyway they do not appear to have been paid as an occupational rehabilitation service, but as a medical service.
59 Further, and importantly, under the definition of occupational rehabilitation service, the range of such services relates to rehabilitation designed to assist return to work, and there was no such connection in this case.
60 I am not satisfied that the plaintiff’s attendance at the St Albans Leisure Centre could be categorised as being for the purpose of an occupational rehabilitation service.
Other considerations
61 During the course of submissions, there was reference to some other cases and their application in the present case.
62 It is now well established, that the threshold requirement of a finding of “serious injury” applies in any claim for damages where the injury the subject of the claim arises out of or in the course of employment, even against a defendant other than the employer[20]. Therefore, if under s 46(1) (d) the plaintiff’s fall is deemed to have arisen out of or in the course of employment, he would need to establish that he had suffered a serious in injury in the fall even though neither of the defendants in the Writ proceeding had ever been his employer.
[20]Martin v Bailey [2009]VSCA 263 at [42]
63 There are cases where further injury has been caused during medical treatment for a compensable injury, and in such cases the further injury may be deemed to arise out of or in the course of employment. In those cases there is a causative connection between the original compensable injury and the separate or discrete injury caused by medical treatment undergone for the compensable injury, and the issue has not whether the further injury was caused sustained in the course of something constituting medical treatment.
64 Bray v Ministry of Education and MMI Workers Compensation[21], a case relied upon by the second defendant, involved such circumstances. An injection for a work-related back injury had caused the plaintiff retinal haemorrhaging and blindness. The issue before the court was whether either a common law release in relation to a claim in respect of her back injury, or the effect of s135(4) of the Accident Compensation Act 1985, prevented her claim under that Act for a permanent impairment assessment for her loss of vision. His Honour found that a separate and discrete injury had been caused during the administration of medical treatment. It was not in issue that it was therefore deemed to have arisen out of or in the course of employment pursuant to s 83(1) of the Accident Compensation Act, which was in corresponding terms to s 46(1)(d) of the WIRC Act. The key issue there was not whether the administration of the injection had been medical treatment, but whether a release and the effect of s 135(5) precluded a further claim. His Honour found they did not.
[21]Judge G D Lewis – Ruling 12/12/2000
65 In Coutts v Stawell Goldmines Pty Ltd and VWA[22], His Honour Judge Parrish found that an injury suffered while lifting weights at a gym was deemed to be a work injury, under s 83(1)(d) of the Accident Compensation Act, based on his finding, specifically, and based on the plaintiff’s evidence during cross-examination, that he was lifting this weight not as part of the body-building program but because it was prescribed by his physiotherapist. I take this finding to be an illustration of how each case will depend on its own factual circumstances, as to whether it falls within s 46(1)(d), and therefore whether an injury it is deemed to have arisen out of or in the course of employment.
[22][2018] VCC 474 at [217]-[221]
Conclusion
66 I am not satisfied that any injuries suffered by the plaintiff in a fall at the St Albans Leisure Centre on 21 February 2015 are deemed to have arisen out of or in the course of employment pursuant to s 46(1)(d) of the WIRC Act. As a result, the second defendant’s applications by summons in the Writ proceeding will be dismissed. The issue referred in the Originating Motion proceeding is determined accordingly.
SCHEDULE OF AFFIDAVIT MATERIAL
| DOCUMENT | PARTY | |
| 1 | Affidavit of Alistair James Neish Boughton with attached exhibits, sworn 29 October 2019 | Second Defendant |
| 2 | Affidavit of Alistair James Neish Boughton with attached exhibits, sworn 21 November 2018 | Second Defendant |
| 3 | Affidavit of Alistair James Neish Boughton with attached exhibits, sworn 3 July 2019 | Second Defendant |
| 4 | Affidavit of Malik Mohammad Aftab in support of an earlier application for a finding of serious injury, made 7 April 2014 | Plaintiff |
| 5 | Affidavit of Malik Mohammad Aftab in support of the application the subject of the Originating Motion, made 7 December 2018 | Plaintiff |
| 6 | Affidavit of Shawn Kim with attached exhibits, sworn 25 July 2019 | Victorian Workcover Authority |
3
0