Comcare v Dalgleish

Case [2018] FCA 2092

FEDERAL COURT OF AUSTRALIA

Comcare v Dalgleish [2018] FCA 2092

File number: VID 997 of 2017
Judge: MURPHY J
Date of judgment: 21 December 2018
Catchwords: WORKERS’ COMPENSATION – interpretation of transitional provisions in s 124 of Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether transitional provisions preserve entitlements in respect of specific heads or amounts of loss or damage – where conceded that Tribunal erred in applying previous version of Act – findings of fact pursuant to s 44(7) of Administrative Appeals Tribunal Act 1975 (Cth) – whether cushioned running shoes constitutes “medical treatment” for the purposes of compensation under s 16 and either s 4(1)(f) or s 4(1)(h)
Legislation:

Acts Interpretation Act 1901 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

Commonwealth Employees Compensation Act 1930 (Cth)

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Industrial Relations Legislation Amendment Act 1991 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Administrative Appeals Tribunal Amendment Bill 2004 (Cth)

Workers Compensation Act 1958 (Vic)

Workers’ Compensation Act 1926 (NSW)
Cases cited:

Brennan v Comcare (1994) 50 FCR 555

Comcare v Levett (1995) 60 FCR 14

Comptroller-General of Customs v Vestas-Australian Wind Technology Pty Ltd (2015) 236 FCR 499; [2015] FCAFC 185

Dalgleish v Comcare [2017] AATA 1325

Esber v the Commonwealth (1992) 174 CLR 430

GC Wood & Son (Australia) Pty Ltd v Cullen [1991] 2 VR 214

Heffernan v Comcare (2014) 218 FCR 1; [2014] FCAFC 2

Johnston v Commonwealth (1982) 150 CLR 331 at 342

Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Repatriation Commission v Hawkins (1993) 45 FCR 205

Schlenert v Australian and Overseas Telecommunications Corporation (1994) 49 FCR 139

Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558; [2004] NSWCA 200

Thiele v Commonwealth (1990) 22 FCR 342; [1990] FCA 123

Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216

Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328
Date of hearing: 2 May 2018
Date of last submissions: 28 June 2018
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 121
Counsel for the Applicant: Mr A Berger
Solicitor for the Applicant: Lehmann Snell Lawyers
Counsel for the Respondent: Mr M Carey
Solicitor for the Respondent: Hounslow Lawyers
Table of Corrections
23 January 2019 In Order 1, the words “The Tribunal’s decision” have been replaced with the words “Comcare’s decision”.
23 January 2019 In paragraph 120, the words “The decision of the Tribunal dated 29 November 2018” have been replaced with the words “Comcare’s decision dated 29 November 2016”.

ORDERS

VID 997 of 2017
BETWEEN:

COMCARE

Applicant
AND:

JAMES DALGLEISH

Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

21 december 2018

THE COURT ORDERS THAT:

1.Comcare’s decision dated 29 November 2016 be set aside.

2.In substitution for the decision set aside, the…

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AGLC
Comcare v Dalgleish [2018] FCA 2092
Case
[2018] FCA 2092
Decision Date

CaseChat Overview and Summary

In Comcare v Dalgleish, the Federal Court was asked to review a decision by the Administrative Appeals Tribunal (AAT) regarding a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The primary issue was whether cushioned running shoes, recommended by medical practitioners for Mr Dalgleish to aid in walking and to alleviate pain from his injuries, constituted “medical treatment” under the Act, thereby entitling him to reimbursement for their cost.

The court was required to decide whether these shoes could be classified as a “curative apparatus” under section 4(1)(h) or as a “medical, surgical or other similar aid or appliance” under section 4(1)(f) of the Act. Comcare argued that the shoes did not constitute medical treatment because they were not curative, whereas Mr Dalgleish contended that the shoes were necessary for his mobility and pain relief, making them an integral part of his medical treatment.

The court considered the nature of workers' compensation legislation, which is to be construed liberally in favour of the worker. It also noted that the term "curative apparatus" should be interpreted to include items that assist in maintaining or ameliorating a person's condition. The court found that the cushioned running shoes, when used in conjunction with orthotics, did indeed contribute to Mr Dalgleish's ability to walk and alleviate pain, thereby qualifying as part of his medical treatment.

In setting aside the AAT's decision, the court ordered that Comcare must reimburse Mr Dalgleish for the cost of the cushioned running shoes as a cost of medical treatment under section 16 of the Act. The court further ordered that Comcare pay the costs of the application, reinforcing the principle that workers' compensation claims should be approached with a liberal interpretation where the intent is to provide necessary support to injured workers.

Orders

Orders of the court

1. Comcare’s decision dated 29 November 2016 be set aside.

2. In substitution for the decision set aside, the Applicant shall pay to the Respondent the costs of supply and replacement of ‘neutral cushioning runners’ as requested by the Respondent’s podiatrist by letter dated 13 July 2016 as a cost of medical treatment obtained by the Respondent in relation to his left foot and ankle injury, pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

3. The Applicant pay the Respondent’s costs of the application.

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

Background

Background to the litigation

Section 16(1) governs compensation in respect of the cost of “medical treatment” as defined in s 4(1), the terms of which I will set out later. Section 39 governs compensation in respect of aids or appliances (and their repair or replacement) for use by an injured employee.THE FACTUAL AND PROCEDURAL BACKGROUND Mr Dalgleish enlisted for National Service in September 1965 and was stationed at an Army base in Casula, New South Wales. On 12 August 1966 he commenced leave prior to embarkation to Vietnam and while on a journey to his home in Ballarat he suffered serious injuries in a motor vehicle accident. He suffered fractures of his cervical spine and of his right arm and underwent a bone graft on his right ulna and a triple fusion of the cervical spine at C3, C4, C5 and C6. He lodged a claim for compensation on 16 January 1968 and liability to pay compensation was accepted on 7 October 1968 pursuant to the Commonwealth Employees Compensation Act 1930 (Cth). In December 1968, Mr Dalgleish settled a common law action he had brought against the driver of the other vehicle involved in the 1966 accident for $25,000. Mr Dalgleish suffered further serious injuries in the course of his employment with the Commonwealth Department of Housing and Construction in another motor vehicle accident on 28 July 1986, when the motorcycle he was riding was struck by a car. He suffered a degloving injury to the left foot and a fracture of the calcaneus and second, third and fourth metatarsals requiring extensive orthopaedic and plastic surgery, as well as aggravating the neck injury suffered in his previous motor vehicle accident, and was an inpatient in the Alfred Hospital for seven weeks. He made a claim for compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act) and on 25 August 1986 the Commissioner for Employees’ Compensation accepted liability to pay compensation for “injury and fractures to left foot” suffered in that accident. On 9 February 1992 Mr Dalgleish settled a common law action he had brought against the driver of the other vehicle involved in the 1986 accident for $250,000 plus costs. On 6 February 2003 Comcare determined that the amount to be offset before workers compensation payments could recommence to Mr Dalgleish in respect of the 1986 accident was $150,000, and concluded that amount was reached on 7 February 2001. It is not clear on the materials how long Mr Dalgleish was in receipt of compensation payments for incapacity, but they ceased when he turned 65 years of age. Between 2008 and 2016 inclusive Mr Dalgleish’s treating medical practitioners recommended that he be supplied and fitted with orthotic inserts in his shoes to increase his mobility and reduce his foot pain, and also recommended that he wear cushioned shoes to maximise the efficacy of the orthotics. From at least February 2010 Comcare accepted liability for the costs associated with the supply and fitting of orthotics, and until a determination in September 2016 it also accepted liability for the cost of providing the medically recommended cushioned shoes. The cushioned shoes are variously described as “special shoes”, “cushioning runners” and “neutral cushioning runners” but that should not obscure the fact that in ordinary parlance they are simply “runners”, albeit expensive high quality runners with specific cushioning qualities.The disputed determination

Evidence

Evidence Before The Court

There was also some evidence before the Tribunal as to Mr Dalgleish’s psychological state. In Dr Griffith’s report of 1 June 1988 he said that Mr Dalgleish suffered from a “significant depressive reaction” to his pain and expressed feelings of anger and frustration. In a report requested by Comcare dated 18 November 2016 Dr Findeisen said:As a result of the prior injuries he is gone on to develop severe osteoarthritis of the wrist and foot along with marked cervical and lumbar spondylosis. All these areas are now chronically painful. I note in your referral letter area he also has an adjustment reaction with depression. I am not as a psychiatrist so I cannot comment on this but undoubtedly the years of chronic worsening pain has worn him down.Mr Dalgleish’s evidence Mr Dalgleish wrote to Comcare requesting a reconsideration of its decision on 29 September 2016 and said that “[t]hese shoes last between 12-18 months before the formation of the shoes collapses causing my left foot/knee to collapse”. Mr Dalgleish was not legally represented before the Tribunal and he was directly questioned by the Tribunal member. It does not appear from the transcript that Mr Dalgleish was sworn in but I proceed on the basis that all parties treated his answers to the Tribunal’s questions as his evidence. The transcript records the following relevant exchange:SENIOR MEMBER: All right. Mr Dalgleish, just explain to me why and how this - you need this shoe, and how it assists you in your walking, if it does aid you, or whatever it does?MR DALGLEISH: Well, sir, it does aid me because I can’t wear anything else. As I’ve stated in my —SENIOR MEMBER: You can’t wear any other shoes?MR DALGLEISH: Well, I do, and I can. Well, for short spaces of time. And even these shoes, in their own right, do not last me for a full day because my leg will collapse without……When I get out of bed in the morning, I can’t walk. So, I struggle down to get – and then I finally get my shoe on, and I can move around more freely. So, without the shoe, I can’t move freely.The swelling in my foot, when my foot swells, the shoe, itself, does expand to a certain degree. There are times when I’ve just had to just use balls and whatever else, even when the shoe is on. I need a crutch now. I need a crutch basically to walk. So, yes, it’s just the way it is. Without the shoe, it’s worse. That particular shoe. That’s why they were designed, to help people with — Comcare did not seek to cross-examine Mr Dalgleish or to contradict his statements as to the importance of the shoes to his ability to walk. Consideration Mr Dalgleish argues the medically recommended neutral cushioning runners constitute “medical treatment” because they are either a “curative apparatus” under s 4(1)(h) or a “medical, surgical or other similar aid or appliance” under s 4(1)(f). Whether the shoes are a curative apparatus under s 4(1)(h) Comcare says it is “axiomatic” that curative apparatus refers to an apparatus that cures. In effect it suggests that the recommended neutral cushioning runners will not cure or treat Mr Dalgleish’s chronic foot pain and therefore do not constitute medical treatment.

Decision

Reasons for decision

On 19 January 2017 Mr Dalgleish applied to the Tribunal seeking to review Comcare’s refusal of his claim. On 15 August 2017 the Tribunal set aside the decision under review and in substitution determined that Comcare was liable to pay for the cost of Mr Dalgleish obtaining cushioning runners as described by his podiatrist: see Dalgleish v Comcare [2017] AATA 1325.THE TRIBUNAL DECISION In its reasons the Tribunal set out the history of Mr Dalgleish’s injuries and various medical reports and letters from his treating medical practitioners (at paragraphs 1 to 11), referring to reports by Dr John Findeisen, rheumatologist, dated 19 February 2008; Mr Gregory McCluney, podiatrist, 19 September 2009; Dr DL Sweeney, GP, dated 9 September 2010 and Dr Dean Samaras, podiatrist, dated 27 January 2010, 21 April 2010, 18 September 2013, 27 October 2014 and 5 February 2015. The broad thrust of the medical evidence was that Mr Dalgleish suffers from severe osteoarthritis in his left foot and ankle and it was medically recommended that he use neutral cushioning runners in conjunction with custom made orthotics. The Tribunal noted that the recommendations made by Dr Samaras were accepted by Comcare and that it paid the cost of the cushioning runners up until early 2015. The Tribunal set out the determination made by Comcare on 16 September 2016 in which it decided that non-orthopaedic shoes such as running shoes did not meet the definition of medical treatment under s 16 of the SRC Act, and did not constitute an alteration, modification, aid or appliance under s 39 of the Act, such that it was not obliged to meet the cost of the cushioning runners. The Tribunal correctly identified (at paragraph 16) that the only issue before it was whether Mr Dalgleish is entitled to reimbursement of the cost of purchasing cushioning runners for use with orthotics prescribed by his podiatrist. The Tribunal noted (at paragraphs 17 to 18) Comcare’s submission that deciding whether Comcare was obliged to pay for the recommended shoes required consideration of what constitutes medical treatment under s 16 of the SRC Act and/or an aid or appliance under s 39. It noted Comcare’s reliance on the decision in Heffernan v Comcare (2014) 218 FCR 1; [2014] FCAFC 2 (Heffernan) (Allsop CJ, Jacobson and Katzmann JJ). The Tribunal also noted Comcare’s submission that because Mr Dalgleish had never undertaken a rehabilitation program or been assessed as not being capable of undertaking such a program, he had no entitlement under s 39. At paragraph 19 the Tribunal made the following comments on the decision in Heffernan: The first point I should make about the Court decision in Heffernan is that in the first paragraph I have quoted above, the Chief Justice refers to ‘…having regard to the impairment and requirements of any rehabilitation program…’. Respectfully, that misstates the statutory provision. The words of the statute are: ‘…having regard to the nature of the employee’s impairment and, where appropriate, the requirements of the rehabilitation programme…’ (my emphasis). Plainly, an employee may be entitled to an aid or appliance despite never having undergone a rehabilitation program. That much is clear from subsection (1)(b). In other words, s 39, while it appears under Division 3 which deals with rehabilitation programs, is not necessarily concerned only with that topic.

Ratio Decidendi

Legal Principle Established

Comcare did not seek to cross-examine Mr Dalgleish or to contradict his statements as to the importance of the shoes to his ability to walk. Consideration Mr Dalgleish argues the medically recommended neutral cushioning runners constitute “medical treatment” because they are either a “curative apparatus” under s 4(1)(h) or a “medical, surgical or other similar aid or appliance” under s 4(1)(f). Whether the shoes are a curative apparatus under s 4(1)(h) Comcare says it is “axiomatic” that curative apparatus refers to an apparatus that cures. In effect it suggests that the recommended neutral cushioning runners will not cure or treat Mr Dalgleish’s chronic foot pain and therefore do not constitute medical treatment. Comcare relies on the observation of Allsop CJ (with whom Jacobson and Katzmann JJ agreed) in Heffernan (at [103]) that:When medical treatment in relation to an injury ends and rehabilitation (including medical services) commences, may be a difficult and subtle question of fact. Indeed, there may be no clear point of distinction, and the two may overlap. This distinction in the Act, however, and the subject of s 16 being medical treatment in relation to the injury, underpins and supports the proposition put by Hill J in Thiele, that the apparatus is one used in the process of treatment, the apparatus having as an essential characteristic its use in the curative or treatment process.It says the Full Court concluded that for something to fall within s 4(1)(h) so as to constitute medical treatment the apparatus must be “curative” or part of the “treatment process”. It contends that if an aid is something to “deal with the reasonable requirements of an employee brought about by his or her impairment” then it properly falls for consideration under the rehabilitation provisions in s 39 of the SRC Act rather than s 16: Heffernan at [105]-[107]. Comcare also relies on Heffernan (at [61]) to argue that the term “curative apparatus” can only sensibly be applied to that which is capable in itself of at least maintaining or ameliorating a person’s condition. It says that commercially available cushioning running shoes do not fall within the definition of medical treatment as they are neither curative nor part of the treatment process. It says that the neutral cushioning runners are not an aid to assist Mr Dalgleish deal with his impairment, because the evidence suggests that the orthotics are the source of the therapeutic effect, and the fact that the orthotics must be worn with shoes does not convert such shoes into therapeutic items themselves. Comcare contends that although the recommended cushioned runners may add to Mr Dalgleish’s comfort or otherwise assist him they do not fall within the categories of items that are compensable under s 16 (or under s 39). I disagree. I commence by noting that it is well settled that workers’ compensation legislation is remedial and should be construed liberally: Johnston v Commonwealth (1982) 150 CLR 331 at 342 (Gibbs CJ, Mason and Wilson JJ); Comcare v Levett (1995) 60 FCR 14 at 18 (Lockhart, Beazley and Moore JJ); see also the authorities in Repatriation Commission v Hawkins (1993) 45 FCR 205 at 211. In Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 at 335 Fullagher J referred to “the established principle that, where two constructions of a Workers’ Compensation Act are possible that which is favourable to the worker should be preferred”. However, that is not to say that the conclusion that the neutral cushioning runners are a “curative apparatus” necessarily requires a liberal construction of the SRC Act.