Daniel Heffernan and Comcare
[2012] AATA 371
•20 June 2012
[2012] AATA 371
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/4636
Re
Daniel Heffernan
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 20 June 2012 Place Sydney The parties are invited to provide brief written submissions on whether a modified vehicle constitutes “medical treatment” within the meaning of paragraph (f) of the definition of “medical treatment” in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Submissions must be served and filed within 21 days of the date of these Reasons. The parties are granted leave to apply for a variation to these directions.
............[sgd]............................................................
Senior Member A K Britton
CATCHWORDS
WORKERS' COMPENSATION - back injury - liability accepted - modification of vehicle - "medical treatment" - "curative apparatus" - further submissions invited
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) - ss 4(1), 16(1), 39
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Workers Compensation Act 1926 (NSW)Administrative Appeals Tribunal Act 1975 (Cth) - s 2A
CASES
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; [2002] HCA 14
Thiele v Commonwealth of Australia (1990) 22 FCR 342
Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216; [1979] WCR (NSW) 44
Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318
Re Townley v Comcare [2004] AATA 252
Re Monk and Comcare (1996) 43 ALD 677Re Hart v Military Rehabilitation and Compensation Commission (2006) 92 ALD 678; [2006] AATA 628
REASONS FOR DECISION
Senior Member A K Britton
20 June 2012
Mr Daniel Heffernan suffers chronic back pain and associated complications following an injury to his back for which Comcare has accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). As a result of that injury he has undergone necessary disc replacement surgery.
Mr Heffernan owns a 2004 Nissan Patrol four-wheel-drive vehicle which he purchased in 2009. The vehicle was assessed by occupational therapists, Ms Jenny Wise and Ms Beth Cheal as unsuitable for his use because of, among other things, his back condition. They believe that because of a combination of factors, including limited head clearance (Mr Heffernan is very tall and there is inadequate clearance between his head and the ceiling of the vehicle), the nature of his back condition and the design of the vehicle, it is not possible to modify the vehicle so as to materially reduce the discomfort Mr Heffernan experiences when driving. Ms Wise has identified two alternative vehicles which in her opinion would be suitable for Mr Heffernan’s use providing a number of modifications are undertaken. She has detailed those recommended modifications in reports prepared for these proceedings. For convenience, I will refer to the recommended vehicles as the “modified vehicle”.
Section 39 of the Act makes Comcare liable to pay the reasonable costs of any modifications to a vehicle used by Mr Heffernan that is reasonably required by him having regard to, among other things, the nature of his impairment. It is common ground however, that s 39 has no application here because it is not possible to modify the vehicle currently owned by Mr Heffernan.
Mr Heffernan wishes to purchase and modify one of the vehicles recommended by Ms Wise. He contends that the costs of a modified vehicle amount to “medical treatment” within the meaning of the Act because a modified vehicle of the type sought by him is a “curative apparatus” and therefore a species of “medical treatment” for the purposes of the Act: s 4(1). Comcare disputes this. The issues to be decided are whether such a modified vehicle is a “curative apparatus”, and, if so, whether it is reasonable for Mr Heffernan to obtain that “treatment” and the appropriate amount Comcare should pay for that treatment.
LIABILITY TO PAY MEDICAL EXPENSES
Section 16(1) of the Act provides:
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.
“Medical treatment” is defined in s 4 to mean:
(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
(c) dental treatment by, or under the supervision of, a legally qualified dentist; or
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
(e) an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or
(f) the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
(g) treatment and maintenance as a patient at a hospital; or
(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or [emphasis added]
(i) any other form of treatment that is prescribed for the purposes of this definition.
Is a modified vehicle a curative apparatus?
Neither the Act nor its predecessor, the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act), defines the term “curative apparatus”. Extrinsic materials, including the Explanatory Memorandum provide no assistance as to the meaning of the term.
In approaching the task of determining whether the modified vehicle constitutes a “curative apparatus” it is therefore appropriate to have regard to, among other things, dictionary definitions and the context in which the term appears (Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396–7; Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at 36).
The Macquarie Dictionary, 5th Edition defines “curative” to mean “serving to cure or heal; relating to curing or remedial treatment; remedial” and “apparatus” as “an assemblage of instruments, machinery, appliances, materials, etc., for a particular use”. The Oxford English Dictionary online relevantly defines “curative” to mean “of or pertaining to the curing of disease or the healing of wounds” and “having the tendency or power to cure disease, promoting cure” and “apparatus” to mean “the mechanical requisites employed in scientific experiments or investigations”.
There can be little doubt that a motor vehicle, modified or otherwise, is an “apparatus” in the ordinary meaning of that word. But whether a modified vehicle is a “curative apparatus” is a more difficult question to resolve.
The meaning of the term “curative apparatus” has been considered by the NSW Court of Appeal, the Federal Court and the Administrative Appeals Tribunal. In Thiele v Commonwealth of Australia (1990) 22 FCR 342 at 346, Hill J rejected the argument that a swimming pool constructed to alleviate the applicant’s back pain was a “curative apparatus” within the meaning of the 1971 Act, on the basis that an in-ground structure such as a swimming pool was a fixture, not an apparatus. His Honour commented, however, (at 348):
[I] am inclined to the view that an item would not properly fall within the concept of a curative apparatus unless the essential character of that item was its use in the curative process. It may, in a case such as the present, where the pool's specifications are set by a doctor, be possible to argue that the essential character of the pool is curative although, but for the rail needed for access, there would be nothing that would distinguish the pool required by the applicant from any domestic swimming pool.
His Honour had no difficulty accepting the proposition that a hydrotherapy pool could be a “curative apparatus” citing, apparently with approval, the decision of the NSW Court of Appeal in Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216 (Ferguson Transformers). In that case, the Court of Appeal was considering the meaning of “curative apparatus” in the context of the Workers Compensation Act 1926 (NSW) which, like the corresponding Commonwealth statute, did not carry a definition of curative apparatus.
Hill J cited the following passage from the Court of Appeal’s decision (at 219–20) on this point:
The pool is a special hydrotherapy pool, constructed above ground, though attached to the premises. His Honour found that, by reason of the respondent's special complications over and above those of an ordinary paraplegic, she needed hydrotherapy on an emergency basis from day to day as required. This treatment maintains her state of health and slows, or perhaps prevents, its deterioration. Two attacks were made on this reasoning — first, it was said that this was not curative and, second, it was not apparatus. As to the first, the argument was that to keep an incapacitated person in the same state was not to cure him, and an apparatus which did not cure was not curative. This is a pettifogging argument — the process of dealing with an incapacitated person may involve a continual war with disease, atrophy of the muscles by lack of use, and even psychological decay by reason of lack of something to do. Any apparatus which helps in this way is a curative apparatus.
In Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318 (at 332) the NSW Court of Appeal held that the provision of a modified vehicle of a suitable type may be a “curative apparatus”. In the leading judgment, Priestley JA found that there was no material distinction to be made between the provision of a hydrotherapy pool (as in Ferguson Transformers) and the provision of a modified vehicle where the evidence justified “the conclusion that the provision of these items was of therapeutic assistance to the particular worker.”
An AAT decision on a similar issue was Re Townley v Comcare [2004] AATA 252 (Townley). In that case, it was held that a spa bath which reduced the pain and symptoms of a degenerative spinal injury, reducing the applicant’s need for pain medication and therapeutic massage, was a curative apparatus.
In Re Monk and Comcare (1996) 43 ALD 677 (Monk), Deputy President McMahon applied Ferguson Transformers, holding that that a motor vehicle modified to transport the applicant’s electric wheel chair was a curative apparatus. He concluded that the modified vehicle would improve the applicant’s self-confidence, increase her mobility and reduce her risk of falling. He accepted an argument that a modified motor vehicle would ameliorate the applicant’s “psychological decay” and was therefore a form of therapy and thus “curative” in the wide sense of the word given to it by Hutley JA.
Another AAT decision of possible significance in this context is Hart v Military Rehabilitation and Compensation Commission (2006) 92 ALD 678. In that case, the Tribunal decided that Comcare was not liable to pay for a chiropractic bed and an ergonomic chair for a soldier with an injured back. The applicant had brought his application for compensation for medical treatment arguing that the bed and chair were either “aids or appliances” or “curative apparatuses” falling within the scope of the definition of “medical treatment” in s 4(1). Applying the ejusdem generis rule to construe the provision, the Tribunal decided that the aids referred to in the definition of “medical treatment” in s 4(1) must be of a medical or surgical nature and that commercially purchased equipment of the type bought by the applicant did not fit within that category. The Tribunal also decided that for an apparatus to be “curative” for the purposes of s 4(1) it must be “remedial” or “rehabilitative in nature, with a tendency to “promote recovery”.
Comcare contends that Monk was wrongly decided and, in the alternative, can be distinguished on its facts. It contends that it is a distortion of the ordinary meaning of the words “curative apparatus” to suggest that a motor vehicle with nothing more than better seating and suspension can be properly characterised as a curative apparatus. Counsel for Comcare contends that the context in which the term appears is relevant to its scope. Comcare contends the term “curative apparatus” must be read in the context of the sub-definition of “medical treatment (“the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise”) and s 39. The argument is that the Act distinguishes between the liability for medical treatment and the liability for alterations of injured employees’ accommodation and vehicles and the provision of aids and appliances which assist the employee to cope on a daily basis with his or her infirmity. Comcare argues that in Monk, the Tribunal was in error in failing to make this distinction. It argues that the Tribunal should infer the legislature’s intention was that questions of liability for modifications to motor vehicles are to be dealt with and decided by reference to s 39 alone.
Counsel for Mr Heffernan contends that the term “curative apparatus” appears to have been picked up from the NSW workers compensation legislation. Certainly the term “curative apparatus” was in use in that legislation well before the Safety, Rehabilitation and Compensation Act 1988 (Cth) was enacted. From that foundation, he argues that the approach taken by the NSW Court of Appeal in Ferguson Transformers is highly persuasive and ought be followed in this case. He argues that an apparatus does not have to provide or facilitate a “cure” but that anything that ameliorates the effects of injury is a curative apparatus.
He also submits that the fact that paragraph (f) under the definition of “medical treatment” in s 4(1) includes matters such as “the supply, replacement or repair” of prostheses and similar aids or appliances” suggests that a wide construction of the term “medical treatment” is required and that it catches things that are not strictly medical in nature but are related to the treatment or amelioration of the injury or condition suffered by the employee. Counsel contends that a modified motor vehicle will reduce the chance of Mr Heffernan’s back getting worse and will also have a positive psychological effect on him. In this contention, he is supported by the psychiatric report of Dr Inglis Howe Synnot who stated that Mr Heffernan was likely to derive psychological benefit from driving such a vehicle (as opposed to a less comfortable vehicle). Further support is to be found in the opinion of Mr Heffernan’s GP which is to the effect that driving such a vehicle would aid in reducing his depression (see report of Dr Malcolm Mitchell 21 July 2010).
Mr Heffernan agrees that one of the reasons his present car cannot be modified is because of his height, but cites that well-known principle in workers compensation law that an employer must take an injured worker as they find them.
CONCLUSION
The Act is remedial legislation and therefore ought be construed beneficially. I therefore accept the analysis expounded in Ferguson Transformers that a “curative apparatus” merely has to have a therapeutic effect, in the sense of delaying physical or psychological deterioration, to fall within paragraph (h) of the definition of “medical treatment” in s 4(1). In my view, the narrow construction placed on the meaning of “curative” in Hart places too great a weight on positive rehabilitation.
In Bresmac, Priestly JA did not explain why he found that a modified vehicle was “of therapeutic assistance” to the worker in question. It therefore provides little assistance in resolving the question. The “apparatus” in question in Ferguson Transformers was a specially designed hydrotherapy pool. Its purpose was to facilitate beneficial treatment for the plaintiff. Similarly, in Townley, a spa bath that relieved symptoms of spinal degeneration seems obviously to have a therapeutic effect.
In my view, a modified motor vehicle of the type Mr Heffernan wishes Comcare to pay for is not a “curative apparatus”. A hydrotherapy pool is by definition an instrument of therapy or treatment. A modified vehicle, however, is not; it appears merely to be a conveyance. If the reasoning in Monk is taken to its logical extreme, almost anything pleasurable to an injured worker, such as a wide-screen television, could be regarded as “therapeutic” in the sense of moderating or ameliorating “psychological decay”. In my view, vague evidence of some form of unspecific amelioration of “psychological decay” is insufficient to establish a “therapeutic” effect for the purposes of paragraph (h) of the definition of “medical treatment” in s 4(1). The evidence of the GP and Dr Synott of psychological benefit is, unfortunately, unspecific and nebulous. Although I do not reject it, I do not place great weight on it because of the lack of detail and foundation for the opinion.
For an apparatus to be regarded as “curative” it must, in my opinion, be inextricably linked to some form of treatment of the worker’s disease or injury or be instrumental in the provision of some form of therapy intended to reduce the pain, discomfort or disability resulting from that disease or injury, whether or not that therapy is rehabilitative. What form of treatment or therapy is provided or facilitated by means of a modified vehicle?
It is possible, however, that a modified motor vehicle may, depending on circumstances, more accurately be considered to be a form of “medical, surgical or other similar aid or appliance” under paragraph (f) of the definition of “medical treatment” in s 4(1) because it could provide a means of mobility otherwise denied to a disabled person just as a walking stick, crutches, prosthesis, wheelchairs or a motorised buggy might do. Indeed, Deputy President McMahon in Monk (at 682) referred to the fact that the supply of aids and appliances can constitute “medical treatment” for the purposes of the Act. The essence of such devices is that they are substitutes for something a disabled person physically lacks (such as the use of a limb) or are an adjunct to forms of treatment that are intended to provide direct and positive therapy.
I would further add that if the very wide approach adopted in Monk were applied generally, paragraph (f) of the definition of “medical treatment” in s 4(1) may have almost no work to do in relation to the supply of walking sticks, prostheses and so on as they could all be considered as “curative apparatuses” under paragraph (h). Yet the Parliament has drawn a distinction between the two categories of “medical treatment”.
These, however, are questions on which I have received no submissions as the application was framed exclusively around the issue of whether the modified vehicle was a “curative apparatus”.
The Tribunal is required to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”: s 2A of the Administrative Appeals Tribunal Act 1975 (Cth). I have considered remitting the matter to Comcare for further consideration. I have decided, however, that it would be more efficient and fair to allow Mr Heffernan and Comcare to deal with the issues I have raised and for me to decide them on the basis of any further submissions they provide.
The parties are invited to provide brief written submissions on whether a modified vehicle constitutes “medical treatment” within the meaning of paragraph (f) of the definition of “medical treatment” in s 4(1) of the Act.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ..............[sgd]..........................................................
Associate to Senior Member A K Britton
Dated 20 June 2012
Date(s) of hearing 23 and 24 April 2912 Counsel for the Applicant Mr B McManamey Solicitors for the Applicant Ms F Seaton, Turner Freeman Lawyers Counsel for the Respondent Mr B Dube Solicitors for the Respondent Ms B Audsley, Australian Government Solicitor
3
6
0