Briggs v WACHS - Pilbara (Hedland Health Campus)
[2020] WASCA 11
•31 JANUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BRIGGS -v- WACHS - PILBARA (HEDLAND HEALTH CAMPUS) [2020] WASCA 11
CORAM: MURPHY JA
BEECH JA
VAUGHAN JA
HEARD: 5 DECEMBER 2019
DELIVERED : 31 JANUARY 2020
FILE NO/S: CACV 62 of 2018
BETWEEN: DAVID PRESTON BRIGGS
Appellant
AND
WACHS - PILBARA (HEDLAND HEALTH CAMPUS)
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
Citation: BRIGGS -v- WACHS - PILBARA (HEDLAND HEALTH CAMPUS) [2018] WADC 73
File Number : APP 3 of 2018
Catchwords:
Workers' compensation - Appeal - Whether judge erred in construction of provisions of Workers' Compensation and Injury Management Act 1981 (WA) (Act) in relation to worker's travel expenses for attending medical appointment in respect of worker's degree of whole of person impairment for the purposes of s 93L of the Act
Statutory construction - Maxim generalia specialibus non derogant - Whether inconsistent provisions - Whether allegedly inconsistent provisions applied in respect of the same subject matter
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 93L, sch 1 cl 17(1), cl 17(1aa), cl 19
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | A J Stewart |
| Respondent | : | T J Hammond |
Solicitors:
| Appellant | : | Chapmans Barristers & Solicitors |
| Respondent | : | HWL Ebsworth Lawyers |
Case(s) referred to in decision(s):
Bank Officials' Association (South Australian Branch) v Savings Bank of South Australia [1923] HCA 25; (1923) 32 CLR 276
Briggs v WACHS - Pilbara (Hedland Health Campus) [2018] WADC 73
Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55
Mohammedi v Bethune [2018] WASCA 98
Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation [1948] HCA 24; (1948) 77 CLR 1
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Purcell v Electricity Commission of New South Wales [1985] HCA 54; (1985) 60 ALR 652
White v Mason [1958] VR 79
JUDGMENT OF THE COURT:
Introduction
This appeal is against the decision of Troy DCJ in Briggs v WACHS - Pilbara (Hedland Health Campus)[1] (primary decision). By the primary decision, Troy DCJ dismissed an appeal from Registrar Ekanayake's decision in the Workers' Compensation Arbitration Service (WA).[2] The registrar had found that the appellant had not established an entitlement under the Workers' Compensation and Injury Management Act 1981 (WA) (Act) to recover his travel expenses (from Port Hedland) and accommodation and meals' expenses in attending a medical appointment in Perth.
[1] Briggs v WACHS - Pilbara (Hedland Health Campus) [2018] WADC 73.
[2] Registrar's decision A44855 (Registrar's decision).
The appellant now appeals against the primary decision. Pursuant to s 79 of the District Court Act 1969 (WA) and s 254 of Act, an appeal may be made to the Court of Appeal in respect of a judgment, order or determination in proceedings in the District Court under the Act, but (1) the appeal 'must relate to a question of law', and (2) leave to appeal must be obtained from this court. For the reasons which follow, we would construe the relevant provisions in a manner different to the primary judge. Consequently, leave to appeal should be granted and the appeal should be allowed.
Background
The respondent employed the appellant as a registered nurse from 18 August 2008 at the Hedland Health Campus.[3]
[3] Registrar's decision [1].
On 3 March 2016, the appellant was assaulted at work, as a result of which he suffered an injury to his left shoulder. On 10 March 2016, the respondent's insurer, RiskCover, accepted liability for the claim.[4]
[4] Registrar's decision [2].
In February 2017, the appellant drove from South Hedland to Perth and back to see an approved medical specialist, Dr Cordova, for the purposes of evaluating whether there existed a 'whole of person impairment' of not less than 15%, or not less than 25% as provided for by s 93L of the Act.[5]
[5] Primary decision [1], [3], [15].
The appellant claimed an entitlement to expenses of $1,996.08 ($1,632.08 for travel and $364 for meals and accommodation),[6] pursuant to sch 1 cl 19(3A) of the Act. The respondent disputed the claimed entitlement and, in that respect, relied on sch 1 cl 17(1aa) of the Act.[7]
[6] Registrar's decision [10].
[7] Registrar's decision [4] - [5].
Section 93L of the Act, which is referred to in terms in sch 1 cl 17(1aa), provides, in effect, that a worker can only elect to retain the right to seek common law damages in respect of the injury if, relevantly, the 'worker's degree of permanent whole of person impairment' has been assessed at a percentage not less than 15%.
The issue of construction and the primary decision
Section 18(1) of the Act provides, in effect, that if an injury of a worker occurs, then 'the employer shall, subject to this Act, be liable to pay compensation in accordance with sch 1'.
The relevant terms of sch 1 of the Act are as follows:
17.Medical and other expenses
In addition to weekly payments of compensation payable, a sum is payable equal to the reasonable expenses incurred or likely to be incurred in respect of -
(1)first aid and ambulance or other service to carry the worker to hospital or other place for medical treatment; medicines and medical requisites; medical or surgical attendance and treatment, including where necessary, medical or surgical attendance and treatment by specialists; dental attendance and treatment; physiotherapy or chiropractic attendance and treatment; attendance and treatment that is approved treatment; charges for hospital treatment and maintenance, in accordance with clause 18 but not including charges for a nursing home unless a medical practitioner certifies that the worker is totally and permanently incapacitated and requires continuing medical treatment and maintenance which cannot be administered in the worker's domestic environment; the provision of hearing aids, artificial teeth, artificial eyes, and where the injury renders their use necessary, spectacles or contact lenses, in so far as that attendance, treatment, or other item does not include vocational rehabilitation, but not exceeding, in the aggregate, a sum equal to 30% of the prescribed amount, unless clause 18A applies, and there shall be no revival of, or increase in, the entitlement to such expenses upon any subsequent increase in the prescribed amount; and
(1aa)the first assessment of a worker for the purposes of section 93L in respect of a particular injury and any previous attempt at an assessment that resulted in a finding that the worker's condition had not stabilised to the extent required for a normal evaluation, as defined in section 146C to be made, but not including the cost of any travel, meals, or lodging;
…
19.Travelling expenses
(1)Where a worker is required by his employer, his employer's duly authorised agent or medical, or like adviser, or is advised by his own medical or like adviser, to travel from the place where he resides to a hospital or other place for treatment, or attendance of a kind referred to in clause 17; then, in addition to the compensation payable to such worker under this Schedule, the employer shall pay the worker's vehicle running expenses, if any, at the prescribed rate and any other reasonable fares and expenses incurred by the worker in such travelling and return, and the reasonable cost of meals and lodging necessarily incurred by the worker while away from his home for the purpose of such treatment, massage, or medical examination not exceeding the amount or amounts applying in accordance with section 5A.
(2)In any case where no medical or like adviser is available and a worker travels for treatment, or attendance of a kind referred to in clause 17 without being so required or advised, the employer shall be liable as prescribed in subclause (1), if the worker proves such travelling was necessary in the circumstances of the case.
(3A)In any case where a worker travels for the worker's degree of impairment to be assessed by an approved medical specialist or an approved medical specialist panel, the employer is liable to pay the worker's vehicle running expenses, reasonable fares and expenses and reasonable cost of meals and lodging -
(a)as if subclause (1), with any necessary modifications, applied to the travelling; and
(b)if the worker proves that the travelling was necessary in the circumstances of the case. (emphasis added)
(3)The amounts to cover the cost of meals and lodging shall not be payable to any worker who has no dependants, unless a worker has incurred costs for meals and lodging in excess of that which he would have incurred had he remained at his home, and then only to the amount of that excess.
In general terms, the issue in the appeal concerns the proper construction of cl 17(1aa) and cl 19(3A) of sch 1 and whether the italicised words in those provisions set out in [9] above create an inconsistency to be resolved by reference to the maxim 'generalia specialibus non derogant' (special provisions will control general provisions).[8] The judge found, in effect, that the maxim applied, with the result that the concluding, exclusionary, words of cl 17(1aa) operated to preclude what his Honour regarded as the more general entitlement provided for in cl 19(3A). The judge held, in effect, that:
[8] White v Mason [1958] VR 79, 82.
1.The appellant's attendance on Dr Cordova engaged both sch 1 cl 17(1aa) and cl 19(3A) of the Act.[9]
[9] Primary decision [19].
2.There was an 'apparent inconsistency' between the wording of sch 1 cl 17(1aa) and cl 19(3A) of the Act.[10]
3.Schedule 1 cl 17(1aa) of the Act prevailed because it is a specific provision relating to assessments under s 93L of the Act, as opposed to a general provision.[11] In reaching this conclusion, the judge said:[12]
(a)the two statutory provisions deal with the same subject matter, and one is more specific than the other;
(b)the registrar was correct in concluding that the two provisions can be read together;
(c)'[a]lthough cl 19(3A) expressly contemplates the payment of a worker's travelling expenses where a worker travels in order to have their degree of impairment assessed by an approved medical specialist, there are a number of reasons for such an assessment';
(d)schedule 1 cl 19(3A) of the Act provides for travel, meal and lodging expenses for all attendances for the purposes of common law assessments (s 93L);
(e)in the latter scenario the position is governed by
sch 1 cl 17(1aa) of the Act; and(f)schedule 1 cl 17(1aa) of the Act provides for entitlements in circumstances where a worker seeks to protect or pursue their common law rights under pt IV of the Act and in doing so expressly excludes travel expenses.
[10] Primary decision [24].
[11] Primary decision [49].
[12] Primary decision [46] - [48].
Accordingly, the judge declined to 'construe the Act so as to conclude that a worker is compensated for medical and other expenses under cl 17(1) whilst, notwithstanding cl 17(1aa), paid the associated travel and other expenses under cl 19'.[13] The judge also rejected the appellant's alternative contention that if sch 1 cl 17(1aa) of the Act prevailed over sch 1 cl 19(3A) of the Act, the latter, which was enacted at a later time, must be taken to supersede the exclusionary part of sch 1 cl 17(1aa) of the Act.[14]
[13] Primary decision [52].
[14] Primary decision [53].
Ground of appeal
The appellant relies upon one ground of appeal, as follows:
The [judge] erred in law in not correctly interpreting and/or not correctly applying the provisions of Schedule 1, Clause 19(3A) of the [Act].
Appellant's submissions
The appellant referred to the Workers' Compensation Reform Act 2004 (WA), and the introduction of sch 1 cl 19(3A) of the Act by the Workers' Compensation and Injury Management Amendment Act 2011 (WA).[15]
[15] Appellant's supplementary submissions, pars 9 - 28.
The appellant also referred to certain extrinsic materials preceding the introduction of the latter Act, namely the 'Worker's Compensation and Injury Management Act 1981 - Legislative Review 2009'.[16] The appellant referred, in particular, to the following paragraphs of that review:[17]
[16] WorkCover WA, Workers' Compensation and Injury Management Act 1981 (WA), December 2009.
[17] Appeal ts 19, 21 - 22; appellant's supplementary submissions, pars 23 - 24.
328.Medical assessment of impairment is an important aspect of the WA workers' compensation scheme. Impairment assessment is used to determine workers' entitlements to:
· compensation for permanent impairment; and
· commence civil (common law) damages through the Courts.
…
352.There are practical problems associated with impairment assessments for workers residing in regional areas or interstate. Impairment assessments may only be undertaken by designated [Approved Medical Specialists]. There are few [Approved Medical Specialists] in regional WA and a very small number in other states. In practical terms workers needing an impairment assessment are either transported to Perth or an [Approved Medical Specialist] conducts the assessment whilst visiting a regional area or other state. The [Act] does not provide for workers' travel and other expenses to be met in these circumstances although insurers may pay such expenses on a case by case basis.
353.The [Act] requires impairment assessments for determining entitlement to pursue common law damages to be undertaken ... To be designated as an [Approved Medical Specialist] s 146F(1) specifically provides that in addition to meeting criteria developed by WorkCover WA, a medical practitioner must be 'sufficiently trained in the use of the WorkCover Guides' in order to be designated as an [Approved Medical Specialist]. This requirement for training in the WorkCover Guides prevents medical practitioners in other states from being designated as [Approved Medical Specialists] (even on a temporary basis), unless they complete specific WA related training. This is the case even though they are competent in impairment assessment using the AMA guides on which the WorkCover Guides are closely based.
354.…
R:60It is recommended clause 19 of Schedule 1 [Travelling] be amended to entitle injured workers to be reimbursed for the cost of travelling for an impairment assessment in circumstances where there is no ready access to an approved medical specialist. (emphasis added)
The appellant contended that it would be an 'absurd and illogical' outcome to conclude that, on a proper construction of the relevant provisions of the schedule, a worker was entitled to the costs of travel, meals and accommodation for the purposes of carrying out any other impairment assessment under the Act, but not for the purposes of an impairment assessment under s 93L of the Act.[18]
[18] Appellant's supplementary submissions, pars 32 - 33.
The appellant submitted in effect that cl 17(1aa) and cl 19(3A) of sch 1 of the Act are not inconsistent provisions, and that the preferable construction, which promotes the purpose of both clauses, is that:[19]
1.Clause 17(1aa) provides for the cost of the prescribed fee associated with an impairment assessment carried out under s 93L, but is not concerned with the payment of expenses for travel, meals and lodging; and
2.Clause 19(3A) provides for the cost of expenses for travel, meals and lodging when a worker travels for an assessment of degree of impairment, including an assessment pursuant to s 93L of the Act.
[19] Appellant's supplementary submissions, par 34.
In the alternative, the appellant submitted that, if the clauses are inconsistent, the concluding words of sch 1 cl 17(1aa) should be regarded as 'erroneous' or should be 'disregarded' for inconsistency with the express and later provisions of sch 1 cl 19(3A).[20]
[20] Appellant's written submissions, par 32; WB 16.
Respondent's submissions
The respondent submitted that as the judge had correctly identified and applied the law, the appeal did not raise a question of law, and that leave to appeal should be refused.[21]
[21] Respondent's written submissions, pars 33 - 36.
The respondent submitted that the appellant did not identify any error in the reasoning of the primary judge. The respondent submitted that the judge identified the correct question, applied established and long‑standing legal principles and arrived at the logical and appropriate conclusion. It submitted the judge correctly identified the issue and interplay between sch 1 cl 17(1aa) and cl 19(3A) of the Act.[22]
[22] Respondent's written submissions, pars 3 - 4, 6, 12; WB 20 - 22.
The respondent submitted that sch 1 cl 19 of the Act deals with the issue of travel expenses generally and that sch 1 cl 17(1aa) of the Act applies for a particular type of medical assessment to be undertaken by the worker in relation to their potential common law claim for damages pursuant to s 93L of the Act. The respondent submitted that the inconsistency between the two provisions is that sch 1 cl 19(3A) of the Act makes travel expenses generally reimbursable, whilst sch 1 cl 17(1aa) of the Act expressly excludes the reimbursement of travel expenses.[23] In this respect, there is 'an irreconcilable inconsistency' between the two provisions.[24]
[23] Respondent's written submissions, pars 10 - 11; WB 21 - 22.
[24] Appeal ts 43, see also ts 49.
The respondent submitted that the confining effect of the closing words of cl 17(1aa) - 'but not including …' - should not be rendered nugatory by virtue of a wide reading of the general words 'in any case' in cl 19(3A).[25]
[25] Appeal ts 49 - 51.
The respondent did not contend that the 2009 review referred to in [14] above was inadmissible on the question of construction. Rather, the respondent submitted that the judge had appropriate regard to extrinsic aids, including the 2009 review, consistently with s 19(1) of the Interpretation Act 1984 (WA).[26]
[26] Respondent's written submissions, pars 13 - 19; WB 22 - 23.
The respondent submitted in effect that the judge was correct, for the reasons that he gave, in holding that cls 17(1aa) and 19(3A) are inconsistent provisions to which the maxim generalia specialibus non derogant applied.[27]
[27] Respondent's written submissions, pars 24 - 27; WB 24 - 25.
The respondent submitted that there was no proper basis for the appellant's contention that sch 1 cl 17(1aa) of the Act should be regarded as 'erroneous' or should be 'disregarded' for inconsistency.[28]
[28] Respondent's written submissions, pars 28 - 29; WB 25.
The respondent filed a notice of contention to the effect that the judge erred in law in granting the appellant leave to appeal, having made no findings in relation to the threshold jurisdictional requirements which the appellant was required to meet under s 247(2) of the Act. The notice of contention was, however, abandoned at the hearing of the appeal.[29]
[29] Appeal ts 39.
Disposition
Principles of statutory construction
Before turning to the provisions of sch 1 in question, it is convenient to outline the principles of statutory construction which are most relevant for present purposes. The general principles of statutory construction are well‑known and need not be repeated. They were outlined in Mohammedi v Bethune.[30] Statutory construction requires attention to text, context and purpose.
[30] Mohammedi v Bethune [2018] WASCA 98 [31] ‑ [35].
The maxim generalia specialibus non derogant was referred to by Isaacs and Rich JJ in the following terms:[31]
In Barker v Edger it is said:- 'The general maxim is, Generalia specialibus non derogant. When the Legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject matter and its own terms.' Now, the first thing we have to understand is what is the meaning of 'separate subject' and 'a subsequent general enactment.' In Blackpool Corporation v Starr Estate Co Viscount Haldane, as to that rule of construction, says:- 'It is that wherever Parliament in an earlier statute has directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the Legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the Legislature had before provided for individually, unless an intention to do so is specially declared. A merely general rule is not enough, even though by its terms it is stated so widely that it would, taken by itself, cover special cases of the kind I have referred to. An intention to deal with them may, of course, be manifested, but the presumption is that language which is in its character only general refers to subject matter appropriate to class as distinguished from individual treatment. Individual rights arising out of individual treatment are presumed not to have been intended to be interfered with unless the contrary is clearly manifest.' Viscount Cave, the present Lord Chancellor, quoted with approval the rule in Barker v Edger. Lord Cave also, for himself, said: 'The rule is clear that a general statute will not, in the absence of clear words, be construed as derogating from special provisions in a previous statute.' The language in those two cases - and they are in accordance with previous authorities - shows that the subject matter in the earlier Act must be the same as that in the later Act before the maxim can have any possible application. (footnotes omitted)
[31] Bank Officials' Association (South Australian Branch) v Savings Bank of South Australia [1923] HCA 25; (1923) 32 CLR 276, 289 - 290.
The maxim has been used both in relation to the operation of a subsequent statute on an earlier one, and in the interpretation of a single statute containing both a special and a general provision.[32]
[32] Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation [1948] HCA 24; (1948) 77 CLR 1, 29.
The maxim only applies where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation.[33]
[33] Purcell v Electricity Commission of New South Wales [1985] HCA 54; (1985) 60 ALR 652, 657.
Moreover, in Project Blue Sky Inc v Australian Broadcasting Authority,[34] McHugh, Gummow, Kirby and Hayne JJ said:
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. (footnotes omitted)
Schedule 1 cl 17(1) and cl 19(1) and (2)
[34] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70].
Clause 17(1) of sch 1, read with s 18(1), of the Act provides, relevantly in effect, that in addition to the employer being required to pay weekly payments of compensation, the employer is also liable to pay (in an amount not exceeding in aggregate 30% of the 'prescribed amount'[35] unless cl 18A applies) the 'reasonable expenses' which are incurred or likely to be incurred by the worker in respect of (1) first aid and ambulance or other services to carry the worker to hospital or other places for medical treatment, (2) medical attendances and treatments, (3) dental attendances or treatments, (4) physiotherapy or chiropractic attendances or treatments, (5) attendances and treatments that are 'approved treatments',[36] (6) charges for hospital treatments and maintenance (in accordance with cl 18 and subject to specified exemptions), (7) the provision of hearing aids, artificial eyes and teeth, and, where the injury necessitates, spectacles (or contact lenses).
[35] The term 'prescribed amount' is defined in s 5(1) of the Act.
[36] The term 'approved treatment' is defined in s 5(1) of the Act to include occupational therapy, clinical psychology and speech therapy.
In other words, cl 17(1) is in broad terms directed to the treatment costs of the injured worker.
Clause 19 operates in conjunction with cl 17(1) to require the employer to pay, in addition to (relevantly, in effect) the worker's treatment costs, the worker's travel costs and the costs of meals and lodging in respect of the worker's travel away from home for the purposes of treatment. Thus, cl 19(1) deals with travel, meals and lodging expenses[37] in respect of travel away from home to hospital or other places for treatment, or for an 'attendance of the kind referred to in [cl] 17'. In cl 19(1), the words 'or attendance of a kind referred to in [cl] 17' in the phrase 'to a hospital or other place for treatment, or attendance of a kind referred to in [cl] 17', refer (at least) to cl 17(1) attendances, ie, medical or surgical attendances, dental attendances, physiotherapy or chiropractic attendances, and attendances that are for 'approved treatment'.
[37] Meals and lodging expenses are subject to the limitation in cl 19(3).
Under cl 19(1), where the employer (or its agent, medical or like adviser) requires the worker to attend, or where the worker attends because the worker's own doctor requires or advises the worker to attend, the worker is entitled to recover his or her vehicle running expenses,[38] plus other reasonable fares and expenses, as well as the reasonable costs of meals and lodging necessarily incurred by the worker whilst away from home (collectively for present purposes 'Travel Expenses'). The entitlement is automatic in the sense that by cl 19(1), the worker is not required to prove that the travel was necessary in the circumstances of the case.
[38] At the prescribed rate - see reg 17AA of the Workers' Compensation and Injury Management Regulations 1982 (WA).
Clause 19(2) gives the worker a similar entitlement, but it applies where the worker attends for treatment where there is no medical or like adviser, or where the worker attends without being advised or required to do so. In those cases, the worker cannot recover Travel Expenses automatically. The worker can only recover such expenses if he or she can prove that the travel was 'necessary in the circumstances of the case'.
Schedule 1 cl 17(1aa)
Clause 17 (1aa) does not deal with treatment costs, or Travel Expenses in relation to treatment costs. Rather, cl 17(1aa) deals with the expenses of the medical assessment which the worker must undertake if he or she is to elect to retain the right to sue for common law damages in respect of the injury. Clause 17(1aa) of sch 1 was introduced into the Act by the Workers' Compensation Reform Act 2004 (WA) (2004 Reform Act).[39] The 2004 Reform Act introduced cl 17(1aa) of sch 1 amongst a suite of provisions including (1) pt IV div 2 subdiv 3 (including s 93L), (2) pt VII div 2 (including s 146 - s 146H), and (3) amendments to sch 1 cl 18A and cl 18B and cl 18C.
[39] See s 141(15) of the 2004 Reform Act.
Clause 17(1aa) of sch 1, when it was introduced, created a new entitlement in favour of the worker. Its effect was to require the employer to pay the 'reasonable expenses' of the worker (excluding the costs of travel, meals and lodging) in respect of (1) the worker's first assessment of the 'worker's degree of permanent whole of person impairment' for the purposes of s 93L of the Act in connection with an election to retain the right to seek damages outside of the Act, and (2) any previous attempts by the worker to obtain such an assessment that had resulted in a finding that the worker's condition had not stabilised to the requisite extent.
When regard is had to the subject matter and terms of cl 17(1aa) (including its words of exclusion), the phrase 'reasonable expenses' in cl 17(1aa) denotes, principally if not exhaustively,[40] the worker's medical expenses in relation to an assessment for the purposes of s 93L of the Act. Accordingly, at least in its principal sphere of operation, the worker's reasonable medical expenses are payable for the first (successful) assessment and for previous (unsuccessful) attempts in that regard, but not for any subsequent assessments. The apparent intent is that such medical expenses should be payable by the employer only once (unless the worker's condition has not stabilised to the extent required for a normal evaluation), and if the worker seeks subsequent assessments (presumably in the hope of improving on the percentage figure for impairment found in the first assessment), those medical expenses should be borne by the worker.
Schedule 1 cl 19(3A)
[40] Whilst it is unnecessary to decide the point, it is not obvious what other types of expenses there might be apart from the medical expenses of the assessment (which are covered by cl 17(1aa)) and travel and related meals and lodging expenses (which are excluded from the operation of cl 17(1aa)).
Schedule 1 cl 19(3A) was introduced into the Act by the Workers' Compensation and Injury Management Amendment Act 2011 (WA).[41] Read with s 18(1) of the Act, sch 1 cl 19(3A) provides in effect that the employer shall pay the Travel Expenses in 'any case' where a worker travels for the purpose of the 'worker's degree of impairment' being assessed by an 'approved medical specialist' or an 'approved medical specialist panel'.
[41] See s 123(18) of the Workers' Compensation and Injury Management Amendment Act 2011 (WA).
The words 'degree of impairment' are not defined for this purpose (although they are defined in s 146 for the purposes of pt VII of the Act). Nevertheless, cl 19(3A) is evidently to be read with div 2 of pt VII, which deals with the evaluation of the 'worker's degree of impairment' by an 'approved medical specialist',[42] and div 3 of pt VII, which deals with that assessment by an 'approved medical specialist panel'.[43]
[42] The term 'approved medical specialist' is defined in s 5(1) of the Act to mean a person for the time being designated under s 146F as an approved medical specialist.
[43] The term 'approved medical specialist panel' is defined in s 5(1) of the Act to mean an approved medical specialist panel constituted under pt VII div 3.
The overall effect of s 146, s 146A, s 146B, s 146C, s 146D and s 146E in div 2 of pt VII is that an 'approved medical specialist' is to evaluate:
1.The worker's 'degree of permanent impairment' for the purposes of pt III div 2A - lump sum payments.[44]
2.The worker's 'degree of permanent whole of person impairment' for the purposes of pt IV div 2 subdiv 3 - civil proceedings, 2004 Scheme (including s 93L).[45]
3.The worker's 'degree of permanent whole of person impairment' for the purposes of pt IXA - specialised retraining programs.[46]
4.The worker's 'degree of permanent whole of person impairment' for the purposes of the arbitrator increasing the amount of reasonable expenses beyond the maximum amount under cl 18A.[47]
[44] See, in particular, s 146B.
[45] See, in particular, s 146C.
[46] See, in particular, s 146D.
[47] See, in particular, s 146E.
Clause 19(3A) is confined in its operation to the employer's liability for payment of Travel Expenses. It does not encompass the medical expenses of the assessment. Further, it requires the worker to establish that the travelling was 'necessary in the circumstances of the case'.[48] In that respect, it is distinguishable from the automatic entitlement given to the worker under cl 19(1) in respect of Travel Expenses, and echoes the qualification in cl 19(2) (see [35] above).
The operation of cl 17(1aa) and cl 19(3A)
[48] Again, in the case of meals and lodging expenses, there is a limitation in cl 19(3).
Schedule 1 cl 17(1aa) and cl 19(3A) are not 'inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation'.[49] Schedule 1 cl 17(1aa) provides for an automatic entitlement to 'reasonable expenses' in respect of principally (if not exhaustively)[50] medical expenses for an assessment of the worker's degree of impairment in respect of s 93L of the Act. The automatic entitlement in sch 1 cl 17(1aa) does not include an entitlement to Travel Expenses.
[49] See [29] above.
[50] See [36] above and footnote 37 above.
Moreover, the concluding words of cl 17 (1aa) - 'but not including …' - confine the entitlement created by cl 17 (1aa); nothing in their language purports to exclude any entitlement that may arise elsewhere in the Schedule or the Act. Nothing in their language or in the context of cl 17(1aa) supports reading the clause as an exhaustive statement of the worker's entitlements, of all kinds, in relation to an assessment under s 93L.
Schedule 1 cl 19(3A) applies, only, to Travel Expenses. It applies to 'any case' where the worker's degree of impairment is to be assessed. The word 'any' in sch 1 cl 19(3A) prima facie gives sch 1 cl 19(3A) an exhaustive operation over the particular subject matter with which it deals.[51] The use of the word 'any' is inconsistent with a construction of cl 19(3A) which would exclude from its operation a first assessment of the degree of impairment for the purposes of s 93L of the Act. Bearing in mind what we have said in [43] and [44], there is no sufficient basis to read down the generality of the words 'in any case'.
[51] cf Purcell (656).
The effect of sch 1 cl 17(1aa) and cl 19(3A) read together is that under the former, reasonable medical expenses (and other expenses, if any, not being Travel Expenses) are automatically payable by the employer for the purposes of the first s 93L assessment, and under the latter, the Travel Expenses relating to such an assessment are also payable where the worker establishes that the travel is 'necessary in the circumstances of the case'. In other words, the two are complementary rather than inconsistent. The result is not surprising given that in this State, employment may be undertaken in remote mining areas, where the costs of travel (where 'necessary'[52]) to Perth are not unlikely to exceed, in many cases, the medical fees associated with an assessment of the worker.
[52] Clause 19(3A)(b) of the Act.
Putting it another way, cl 19(3A) is not in the nature of a general provision which operates upon the same subject matter as cl 17(1aa).[53] The subject matter of cl 19(3A) is, specifically, Travel Expenses, including Travel Expenses in respect of an assessment for the purposes of s 93L. The subject matter of cl 17(1aa) is not Travel Expenses, but rather reasonable expenses for the purposes of a s 93L assessment to which the worker is automatically entitled other than Travel Expenses.
[53] See Bank Officials' (290) referred to in [27] above.
In our view, this construction is also to be preferred on the basis that it produces greater coherence. Under cl 17, the only impairment assessment for which the worker is entitled to reasonable medical expenses is the first assessment for the purposes of s 93L. Yet, on the respondent's construction, the first impairment assessment under s 93L is singled out as the only kind of impairment assessment for which an entitlement to Travel Expenses for necessary travel is denied. That is an unlikely intention to attribute to the legislature. No such apparent incongruity is produced by the construction we prefer.
The respondent submits that incongruity would result if Travel Expenses were recoverable under cl 19(3A) for a second (or subsequent) s 93L impairment assessment, when cl 17(1aa) allows medical expenses only for the first such assessment.[54] In our view, that result does not follow. Ordinarily at least, a worker claiming Travel Expenses for subsequent assessments for the purposes of s 93L (ie, assessments beyond the first assessment to which cl 17(1aa) applies) could not establish that the travel was 'necessary in the circumstances of the case' for the purposes of cl 19(3A)(b). The first successful medical report is, at least generally, regarded under the Act as sufficient for the purposes of the worker obtaining a medical opinion in contemplation of making of an election under s 93L in connexion with the pursuit of a common law claim for damages.
[54] Appeal ts 47, 52 - 53.
Our preferred construction tends to be confirmed[55] by the 2009 review of the Act referred to in [14] above, which appears to envisage the recommendation to provide for travel costs as encompassing all forms of impairment assessments, consistently with the breadth of the statutory text - 'in any case …'.
[55] Section 19(1) of the Interpretation Act.
Accordingly, the judge, with respect, erred in his construction of cl 17(1aa) and cl 19(3A) of sch 1 of the Act.
Conclusion
The appeal, for the reasons indicated, has merit, and there is a wider public interest, beyond the interests of the parties to this dispute, in the proper construction and application of cl 17(1aa) and cl 19(3A) of sch 1 of the Act. It is in all the circumstances appropriate to grant leave to appeal.[56]
[56] See, generally, Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55 [46].
The orders should be:
1.Leave to appeal is granted.
2.The appeal is allowed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
Associate to the Honourable Justice Murphy31 JANUARY 2020
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