Dalgleish and Comcare (Compensation)
[2017] AATA 1325
•15 August 2017
Dalgleish and Comcare (Compensation) [2017] AATA 1325 (15 August 2017)
Division:GENERAL DIVISION
File Number(s): 2017/0376
Re:James Dalgleish
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Egon Fice, Senior Member
Date:15 August 2017
Place:Melbourne
The Tribunal sets aside the decision under review and in substitution determines that Comcare is liable to pay for the cost of Mr Dalgleish obtaining cushioning runners as described by his podiatrist.
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Egon Fice, Senior Member
WORKERS COMPENSATION – 1986 workplace accident – injured leg – cushioned shoes – whether a compensable medical expense – application of the Compensation (Commonwealth Government Employees) Act 1971 – transition provision of the Safety, Rehabilitation and Compensation Act 1988.
Legislation
Employees Compensation Act 1930 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 16(1), 39, 124Cases
Heffernan v Comcare (2014) 218 FCR 1
REASONS FOR DECISION
Egon Fice, Senior Member
15 August 2017
In the course of his employment with the Department of Defence, on 12 August 1966 Mr Dalgleish was involved in a motor vehicle accident while travelling from his workplace to home. His claim for workers compensation under the Commonwealth Employees Compensation Act 1930 (the 1930 Act) was accepted in a determination made on 7 October 1968.
A common-law action brought in the Supreme Court of Victoria against the driver of the vehicle involved in the 1966 accident was settled in December 1968 for $25,000.
On 28 July 1986, when employed by the Department of Housing and Construction, Mr Dalgleish was hit on the left side by a car on the way to work. He again lodged a claim for compensation in respect of injuries suffered in that accident (fractures to the left foot) and his claim was accepted on 25 August 1986. Mr Dalgleish brought a common-law claim in the County Court of Melbourne in September 1986 against the driver who caused that accident. That matter was settled on 9 February 1992 when Mr Dalgleish agreed to accept the sum of $250,000 plus costs to be paid by the Transport Accident Commission (TAC).
On 6 February 2003 Comcare determined that $150,000 needed to be offset before compensation payments could recommence in respect of the 1986 accident. At that date Mr Dalgleish’s medical expenses amounted to $6,480.54 and he had received incapacity payments totalling $143,519.46. Comcare also determine that it was only liable to pay compensation for injuries arising out of the 1986 accident and not the 1966 accident. Earlier, on 16 October 2000, the Tribunal (Senior Member Pascoe) said:
It would appear to follow that compensation would be payable to Mr Dalgleish under the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) as a consequence of the 1986 accident…
In a letter dated 19 February 2008 Dr John M Findeisen, a rheumatologist, said Mr Dalgleish required a new fitted cushioned shoe for his injured left leg. A radiological report from Sandringham & District Memorial Hospital dated 16 July 2008 disclosed a number of serious problems with Mr Dalgleish’s left foot. The report stated:
Degenerative changes present at the tarsometatarsal joint and the intertarsal joints of the left foot, particularly involving the joint between the navicular and the adjacent cuneiforms. Bony spurring and joint space reduction is shown in relation to the bases of the 3rd and 4th metatarsals of the left foot.
In a letter dated 19 September 2009 addressed to Comcare, Mr Gregory McCluney, a podiatrist, requested that Mr Dalgleish be referred to Athletes Foot, Whitford City, Perth, Australia, to be fitted with Adidas Supernova shoes for treatment of his injuries following the motor vehicle accident.
On 27 January 2010 Mr Dalgleish was examined by Mr Dean Samaras, a podiatrist with the Kingsford Podiatry Group. Dr Samaras said:
… James has experienced chronic pain in his ankle following a motor vehicle accident in 1986 in which he fractured his left ankle… .
Prefabricated pressure relief insoles were initially advised, however they have failed to provide adequate pain relief. Custom foot orthoses to be worn within cushioning runners are now indicated to attempt to further reduce joint strain and improve his gait and reduce pain… . Surgical referral may also be required in future if his pain becomes intolerable.
Mr Dalgleish was again examined by Dr Samaras on 21 April 2010. Dr Samaras again wrote to Comcare stating the following:
James presented today for assessment and casting for custom foot orthoses for treatment of his painful left ankle. I notice his current athletic footwear which he wears most of the time had worn out. I would recommend the use of neutral cushioning runners for daily use such as Adidas Supernova Glide, Asics Gel Nimbus or Brooks Glycerin for maximum comfort. These shoes will maximise the efficiency of the orthotics.
Dr Samaras provided a similar letter on 5 May 2010 adding that walking shoes with extra cushioning (e.g. Rockport) would also be appropriate.
In a brief letter dated 9 September 2010 addressed to Comcare, Dr DL Sweeney, a General Practitioner, said:
This patient needs a new pair of special shoes (Supernova). This is related to his claim.
Dr Samaras provided further letters identifying the specific walking shoes which should be provided to Mr Dalgleish to maximise the efficacy of his orthotics. On 1 July 2011,
Dr Samaras explained a new pair of shoes was not needed at that stage but Mr Dalgleish would be reviewed again in 12 months. On 18 May 2012 Dr Samaras repeated his previous statements adding that another option would be MBT shoes which have a rocker bottom sole and may be beneficial. Dr Samaras also mentioned that the current footwear Mr Dalgleish was wearing had worn out. Dr Samaras provided similar reports on 18 September 2013, 27 October 2014 and 5 February 2015.
It appears the recommendations made by Dr Samaras were accepted by Comcare and it approved the cost of providing the recommended footwear. However, in a letter dated
8 January 2015, Comcare said that to enable it to consider approving the requests for neutral cushioning runners for daily use, it required a quote for each item. In a letter dated 13 July 2016 Dr Samaras explained that the recommended footwear generally retailed at a maximum of $250.
In a letter dated 2 September 2016 Comcare wrote to Mr Dalgleish stating:
Comcare’s liability for medical treatment is considered under subsection 16(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), which states:
“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.”
As such, for Comcare to accept liability for medical treatment it must be shown that the treatment:
· Meets the definition of medical treatment, as per section 4 of the SRC Act; and
· Was obtained in relation to the accepted compensable condition; and
· was reasonable in the circumstances
Currently, the available medical evidence does not indicate that running shoes meets the above criteria for your accepted compensable condition of injury and fractures to left foot, fracture of one or more tarsal & metatarsal bones(left), aggravation of syndromes affecting cervical region, lumbar sprain, aggravation of superficial injury of elbow, forearm, & wrist(left), adjustment reaction with dep.
Comcare then referred to s. 39 of the SRC Act which, relevantly, provides:
(1) Where:
(a)an employee suffers an injury resulting in an impairment; and
(b)the employee is undertaking, or has completed, a rehabilitation programme or has been assessed as not capable of undertaking such program;
the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee, of:
(c)any alteration of the employee’s place of residence or place of work;
(d)any modifications of the vehicle or article used by the employee; or
(e)any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances;
being alterations, modifications or aids or appliances reasonably required by the employee, having regard to the nature of the employee’s impairment and, where appropriate, the requirements of the rehabilitation programme.
(2) The matters to which the relevant authority shall have regard in determining the amount of compensation payable in a particular case under subsection (1) include such of the following matters as are relevant in that case:
(a)the likely period during which the alteration, modification, aid or appliance will be required;
(b)any difficulties faced by the employee in gaining access to, or enjoying reasonable freedom of movement in, his or her place of residence or work; …
Comcare determined that non-orthopaedic shoes such as regular running shoes did not meet the definition of medical treatment under s. 16 of the SRC Act. In addition, Comcare determined that the purchase of such shoes would not constitute an alteration, modification, aid or appliance under s. 39 of the SRC Act. Accordingly, it declined to pay compensation in respect of the expense involved in purchasing cushioning running shoes for Mr Dalgleish. Mr Dalgleish sought reconsideration of that decision. On 29 November 2016 a Review Officer with Comcare determined that the original decision was correct.
The only issue before me is whether Mr Dalgleish is entitled to reimbursement of expenses incurred in purchasing cushioning runners for use with orthoses prescribed by his paediatrician.
MR DALGLEISH’S ENTITLEMENT TO SPECIAL FOOTWEAR
Mr M Snell, a solicitor who appeared on behalf of Comcare, submitted that the provision of the footwear requested by Mr Dalgleish may fall under either s. 16 (medical treatment) or s. 39 (aid or appliance) of the SRC Act. He referred me to the Full Court of the Federal Court of Australia (Allsop CJ, Jacobson and Katzmann JJ) decision in Heffernan v Comcare (2014) 218 FCR 1. In particular, Mr Snell submitted that there is a clear distinction between what constitutes medical treatment on the one hand and rehabilitation and ongoing impairment on the other which may involve medical services. Allsop CJ, with whom Jacobson and Katzmann essentially agreed said the following at 20:
Division 3 of Pt III deals with rehabilitation programs. Section 39, set out earlier, is in Div 3 of Pt III. By this provision, an employee with an impairment such as Mr Heffernan may be entitled to compensation for the matters in subs (1)(c) to (e), if they are reasonably required by the employee, having regard to the impairment and the requirements of any rehabilitation program.
The terms and structure of the Act distinguish between medical treatment, for which compensation is payable; and compensation for alterations to places, modifications to vehicles or articles, or any aids or appliances during or after a rehabilitation program, or even if no rehabilitation program is possible. It is to be recognised that a “rehabilitation program” may involve medical, dental or psychiatric and hospital services.
These Parts and Divisions of the Act reflect the distinction between medical treatment on the one hand, and rehabilitation and ongoing impairment on the other, which may involve medical services. 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. That relationship between the apparatus and the treatment process was clear in Thomas and Theile… .
It will not always be an easy factual distinction or conclusion to make. Is the apparatus one that is used in the curative process or process of treatment, having as an essential characteristic its use in that process; is it an aid or appliance under s. 39(1)(e) that is reasonably required by the employee having regard to his or her impairment and to any rehabilitation program?
The above analysis by Allsop CJ was adopted by Mr Snell in his submissions as to why Mr Dalgleish was no longer entitled to the particular form of footwear recommended by his podiatrist. The problem was not the fact that the footwear fell into the category of medical treatment or that it should be regarded as an aid or appliance. Rather, Mr Dalgleish had never undertaken a rehabilitation programme nor had he been assessed as not being capable of undertaking such a program. Therefore he had no entitlement under
s. 39 of the SRC Act.
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. I expressed these concerns to Mr Snell on the hearing of this matter.
After the hearing, I considered it prudent to go back to discover the genesis of s. 39 in the SRC Act. I found the following provisions in the 1971 Act, as amended at 1979, and in effect at the time Mr Dalgleish suffered his injury in 1986:
37(1) Where an injury is caused to an employee, the Commonwealth is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury, being treatment that it was reasonable in the circumstances for the employee to obtain, compensation of such amount as is appropriate to that medical treatment having regard to the charges customarily made for similar medical treatment in the place where that treatment is obtained.
(2) For the purposes of the last preceding sub-section, the cost of medical treatment shall, in the case of medical treatment being the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance, be deemed to include any fees and charges paid or payable by the employee to a legally qualified medical practitioner, a legally qualified dentist or other qualified person for a consultation, examination, prescription or other service reasonably rendered in connexion with the treatment.
(3) Where an injury is caused to an employee, the Commonwealth is liable to pay compensation of such amount as is reasonable in respect of the cost, payable by the employee, of an alteration to a building occupied, or vehicle or article used, by him, or of obtaining any aid or appliance (other than an aid or appliance referred to in the last preceding sub-section) for use by him or of having such an aid or appliance repaired or replaced, being an alteration the making of which, or an aid or appliance the obtaining of which, was reasonably required as a result of the injury, but so that the total amount of the compensation payable under this sub-section in respect of the one injury does not exceed $780 or such higher amount as is prescribed except where the Commissioner is satisfied that the circumstances of the case justify the excess. (my emphasis)
It should be immediately apparent that s. 37 in the 1971 Act forms the basis for the provisions now set out in s. 39 of the SRC Act. At that time, the Act did not contain any rehabilitation provisions and, unsurprisingly, the provisions dealing with the requirement of the employer to pay for an aid or an appliance reasonably required as a result of the injury sustained by the employee then fell under the medical expenses provision.
Given that the 1971 Act applied to Mr Dalgleish’s claim for compensation arising from the injury he sustained in 1986, one needs to examine the Transitional Provisions found at Part X of the SRC Act in order to establish ongoing entitlements to compensation. Relevantly, s. 124 of the SRC Act provides:
(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of any injury, loss or damage suffered before the commencing day if the compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
Given the statements made by Dr Samaras regarding the need Mr Dalgleish has for cushioning runners to be used in conjunction with the orthoses prescribed by him, it appears to me to be incontrovertible that those shoes are an aid reasonably required by him as a result of his injury. The cost of those shoes was met by Comcare in the past and no explanation has been given as to why that payment ceased. Mr Dalgleish’s entitlement arises out of the 1971 Act and, under the transitional provisions in the SRC Act, the entitlement remains.
CONCLUSION
I have found that Mr Dalgleish’s entitlement to have provided for him shoes described as cushioning runners to be used in conjunction with orthoses prescribed by Dr Samaras arose under s. 37 of the 1971 Act. That entitlement remains regardless of the provisions now found in s. 39 the SRC Act as a result of the transitional provisions set out in s. 124 of the SRC Act.
Accordingly, I find that the decision made by a Review Officer of Comcare on 29 November 2016 was not the correct decision. I set aside that decision and in substitution determine that Comcare is liable to pay for the cost of Mr Dalgleish obtaining cushioning runners as described by his podiatrist, Dr Samaras; and for replacements from time to time as he reasonably requires.
26. I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the written reasons herein of Egon Fice, Senior Member
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Associate
Dated 15 August 2017
Dates of hearing 23 June 2017 Applicant In person Solicitors for the Respondent Lehmann Snell Lawyers Advocate for the Respondent Michael Snell
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