Carson v Comcare

Case [2015] FCA 50

FEDERAL COURT OF AUSTRALIA

Carson v Comcare [2015] FCA 50

Citation: Carson v Comcare [2015] FCA 50
Appeal from: Carson and Comcare [2014] AATA 699
Parties: PETER JOHN CARSON v COMCARE
File number: SAD 298 of 2014
Judge: WHITE J
Date of judgment: 6 February 2015
Catchwords: COMPENSATION – Appeal from Administrative Appeals Tribunal – construction of subss 16(6) and (7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether 50 km threshold in s 16(7) may be satisfied by the aggregation of multiple journeys
Legislation: Acts Interpretation Act 1901 (Cth) ss 2, 23
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 16
Cases cited: Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651
Bortolazzo v Comcare (1997) 75 FCR 385
Comcare v Pires [2005] FCA 747; (2005) 143 FCR 104
Guppy v Australian Postal Corporation [2013] FCA 489; (2013) 212 FCR 380
Sherzad v Minister for Immigration and Citizenship [2008] FCAFC 145; (2008) 170 FCR 105
Telstra Corporation Limited v Peisley [2006] FCAFC 79; (2006) 151 FCR 275
Date of hearing: 29 January 2015
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 36
Counsel for the Appellant: The Appellant appeared in person
Counsel for the Respondent: Ms G Walker
Solicitors for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 298 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

PETER JOHN CARSON
Appellant
AND:

COMCARE
Respondent

JUDGE:

WHITE J

DATE OF ORDER:

6 FEBRUARY 2015

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 298 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

PETER JOHN CARSON
Appellant
AND:

COMCARE
Respondent

JUDGE:

WHITE J

DATE:

6 FEBRUARY 2015

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

  1. By s 16(6) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), Comcare is liable to pay compensation to an injured employee in respect of expenditure reasonably incurred by the employee in making a necessary journey for the purpose of obtaining medical treatment. However, by s 16(7)(a) of the SRC Act, Comcare is not liable to pay compensation under subs (6) unless the reasonable length of a journey (including the return) exceeded 50 km.

  2. The question on this appeal from the Administrative Appeals Tribunal (the AAT) is whether s 16(7)(a) permits the aggregation of multiple necessary journeys made by an employee to obtain reasonable medical treatment, for the purpose of determining whether the 50 km threshold has been satisfied.

  3. Comcare determined that s 16(7) does not permit aggregation of multiple journeys so as to satisfy the 50 km threshold. That construction was upheld on review by a Senior Member of the AAT.

  4. In my opinion, the construction of s 16(7) adopted by Comcare and the AAT is correct and…

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AGLC
Carson v Comcare [2015] FCA 50
Case
[2015] FCA 50
Decision Date

CaseChat Overview and Summary

This appeal concerns the interpretation of sections 16(6) and 16(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) and whether the 50 km threshold in section 16(7) can be satisfied by the aggregation of multiple journeys. The appellant, a former Research Scientist, argued that the 50 km threshold should be applied to the aggregate distance travelled during a course of treatment. Comcare, on the other hand, contended that the threshold applied to each individual return journey. The Administrative Appeals Tribunal (AAT) upheld Comcare's interpretation, finding that the threshold was intended to apply to each separate journey. The appellant sought to appeal this decision, arguing that the AAT's reasoning was flawed and that the threshold should be applied to the aggregate distance.

The court was required to determine the correct interpretation of sections 16(6) and 16(7) of the SRC Act and whether the 50 km threshold could be satisfied by aggregating multiple journeys. The court considered the principles of statutory interpretation, including the need to construe remedial legislation liberally in favour of injured employees. The court also considered the language of the statute and whether the AAT's interpretation was consistent with earlier decisions.

The court found that the AAT's interpretation of sections 16(6) and 16(7) was correct. The court held that the 50 km threshold was intended to apply to each individual return journey, rather than the aggregate distance travelled during a course of treatment. The court rejected the appellant's argument that the AAT's reasoning was flawed, finding that the AAT had correctly applied the principles of statutory interpretation and that its interpretation was consistent with earlier decisions. The court held that the appeal should be dismissed.

The final orders of the court were that the appeal be dismissed. The court did not make any orders in relation to costs.

Orders

Orders of the court

1. The appeal be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

In my opinion, the construction of s 16(7) adopted by Comcare and the AAT is correct and the appeal should be dismissed. My reasons follow.Background The appellant, who represented himself on the appeal, was formerly employed as a Research Scientist by the Defence Science Technology Institute. Comcare accepted that he suffered injuries in the course of his employment described as “depression, acute reaction to stress and aggravation of atopic dermatitis and related conditions”. The deemed date of injury was 24 January 1995. The appellant has received compensation in respect of those conditions since 1995. The dermatitis manifests itself periodically in rashes. From time to time, the appellant must attend a day clinic (usually the Royal Adelaide Hospital (RAH)) for treatment involving the application of topical ointments and the wrapping of his body in heated towels. A course of treatment typically takes many days. The first days of the course last from 8:00am to 3:00pm and the later days involve a stay from 8:00am to 1:00pm. At the conclusion of each day’s treatment, the appellant returns to his own home. In June and July 2013, the appellant underwent medical reviews and treatment as set out in the following table: As can be seen, none of the individual journeys (including the return journey) exceeded 50 km. In aggregate however, the journeys well exceeded 50 km. Section 16 of the SRC Act Section 16 provides:16 Compensation in respect of medical expenses etc. (1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment. (2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment. …(6) Subject to subsection (7), if: (a)compensation in respect of the cost of medical treatment is payable; and(b)the employee reasonably incurs expenditure in doing either or both of the following: (i)making a necessary journey for the purpose of obtaining that medical treatment; (ii)remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose; Comcare is liable to pay compensation to the employee: (c)in respect of the journey--of an amount worked out using the formula:Specified rate per kilometre x Number of kilometres travelledwhere: specified rate per kilometre means such rate per kilometre as the Minister specifies, by legislative instrument, under this subsection in respect of journeys to which this subsection applies. numbers of kilometres travelled means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey). (d)in respect of the employee remaining for the purpose of obtaining the treatment--of an amount equal to the expenditure so reasonably incurred in remaining for that purpose. (7) Comcare is not liable to pay compensation under subsection (6) unless: (a)the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or (b)if the journey made by the employee involved the use of public transport or ambulance services--the employee's injury reasonably required the use of such transport or services regardless of the distance involved. (8)The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include: (a)the place or places where appropriate medical treatment was available to the employee; (b) the means of transport available to the employee for the journey; (c) the route or routes by which the employee could have travelled; and (d) the accommodation available to the employee. (9) Where: (a) an employee suffers an injury; (b)a person has reasonably incurred expenditure in connection with the transportation of the employee, or, if the employee has died, of his or her body, from the place where the injury was sustained to a hospital or similar place, or to a mortuary; and (c)the employee, or the legal personal representative of the employee, does not make a claim for compensation in respect of that expenditure; Comcare is liable to pay compensation to the person who incurred the expenditure of an amount equal to the amount of that expenditure.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The operation of subs (6) is made subject to subs (7). By that provision, Comcare is not liable to pay compensation in respect of a journey for the purposes of obtaining medical treatment unless “the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 km”.The AAT decision In the AAT, the appellant argued that the 50 km threshold was to be applied having regard to the aggregate distance which he travelled in respect of the course of treatment he underwent in June and July 2013. Comcare, on the other hand, submitted that the 50 km threshold applied to each daily return journey which the appellant had made. The AAT accepted that the SRC Act is remedial legislation and should be construed beneficially. It also accepted that the construction of s 16(7) for which Comcare contended was capable of producing arbitrary and seemingly unjust results. The Senior Member noted by way of example that an injured worker making a single journey of 51km is entitled to compensation but an employee making multiple journeys of, say, 45km day after day will not be compensated for his or her travel costs. Nevertheless, the Senior Member upheld the construction proposed by Comcare. His reasoning was as follows:(a)It is reasonable to suppose that the 50 km threshold is intended to have a meaningful practical operation but, if an aggregation of separate journeys is permissible, it would operate infrequently to exclude an entitlement to compensation;(b)The ordinary grammatical meaning of the terminology used in ss 16(6) and (7) indicates that the threshold is intended to be applied to each individual round trip;(c)The linking of the entitlement to travel costs to attendances for medical treatment which it was reasonable for the employee to obtain in the circumstances is significant. The AAT’s reasoning was as follows:[12]… The primary decision that must be made by Comcare is whether each separate attendance by an injured employee at a place of treatment is reasonably justified. It may be that a particular day’s attendance is justified, while another day’s is not. [13]In Dr Carson’s case, for the purposes of s 16 of the Act, each day’s attendance at the hospital has to be assessed for its reasonableness under subs (1). That is, each day’s treatment is a separate event, and the question under s 16(1) is whether the treatment on that day is reasonable in the circumstances. If not, no compensation is payable in respect of that day’s treatment under subs (1), and it must also follow that no compensation under subs (6) is payable in respect of the journey to obtain that day’s treatment irrespective of the kilometres travelled. Once it is accepted that each day’s treatment has to be separately evaluated for its reasonableness under subs (1), it follows, in my opinion, that subs (6)(b) has to be applied, and reapplied, to each day’s journey. A differential approach is implicit in s 16(1) and this flows through to subs (6) and the application of the 50‑kilometre threshold in subs (7) in my opinion. …(d)The construction for which Comcare contended was consistent with earlier decisions of the AAT: Re Horan & Comcare [1990] AATA 278, (1990) 21 ALD 621 at [4]; Re Purser & Comcare [1993] AATA 351; Re Allen & Comcare [2001] AATA 379; Re Green & Comcare [2003] AATA 81; Re West & Comcare [2004] AATA 364, (2004) 80 ALD 776.(e)There were no previous decisions of the AAT favouring the construction for which the appellant contended. The parties’ submissions

Ratio Decidendi

Legal Principle Established

Counsel for Comcare sought to support the AAT decision on the basis of the reasons given by it. In addition, counsel contended that s 23(b) of the Acts Interpretation Act 1901 (Cth), which provides that words in the singular number include the plural, could not be applied in relation to s 16(7). Consideration It is well recognised that the SRC Act is remedial or social legislation and is to be construed beneficially. In Bortolazzo v Comcare (1997) 75 FCR 385 at 388, Heerey J said:[T]he Act is social legislation which ought to be construed, in the event of ambiguity, liberally in favour of injured employees … But a liberal interpretation is one thing, rewriting the statute is another. See also Telstra Corporation Limited v Peisley [2006] FCAFC 79, (2006) 151 FCR 275 at [35]; Comcare v Pires [2005] FCA 747, (2005) 143 FCR 104 at [44]; Guppy v Australian Postal Corporation [2013] FCA 489, (2013) 212 FCR 380 at [14]. As in all cases of statutory construction, close regard must be had to the language of the statute. In my opinion, the appellant’s critique of the AAT’s reasoning by reference to s 16(1) of the SRC Act has some force. As noted earlier, the AAT reasoned that the “primary decision” to be made by Comcare was whether each separate attendance by an injured employee at a place of treatment was reasonably justified. Because that was so, the AAT reasoned that subs (6) had also to be applied, and reapplied, to each day’s journey. This reasoning seems to rest on some assumptions about the way in which treatment will be provided and charged by a medical provider which may not always be sound. The elements of the liability of Comcare in respect of the costs of medical treatment under s 16(1) are these:(i) An employee suffers a compensable injury;(ii) The employee obtains medical treatment in relation to that injury;(iii)It was reasonable in all the circumstances for the employee to obtain that treatment for the injury;(iv) A cost is incurred in respect of the provision of the treatment.When those elements are established, Comcare is liable to pay compensation in an amount which it determines is appropriate for that medical treatment. As noted earlier, the definition of “medical treatment” in s 4 is capable of including a course of treatment as well as each particular attendance by a practitioner on an injured employee. The primary question for Comcare, if there be a primary question, is the reasonableness of the injured employee obtaining the treatment. It is likely that there will be at least some cases in which the liability of Comcare under s 16(1) will arise without there being any necessity to consider the reasonableness of each individual attendance by the medical provider on the injured employee. It is not uncommon for medical providers to charge a lump sum fee for a particular procedure, which fee takes into account all attendances both before, at, and after the procedure. In a case of that kind, Comcare’s focus under s 16(1) is likely to be on the reasonableness of the treatment as a whole, rather than the reasonableness of each particular attendance of the practitioner on the injured employee.