Hart v Military Rehabilitation and Compensation Commission
[2006] AATA 628
•17 July 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 628
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/733
VETERANS’ APPEAL DIVISION ) Re NEIL HART Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Dr EK Christie, Member Date17 July 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review. The Tribunal raises the possibility of an Act of Grace payment in the factual circumstances.
.........[Sgd].........
EK Christie
Member
CATCHWORDS
COMPENSATION – Safety and Rehabilitation Compensation Act – medical treatment – chiropractic bed – ergonomic chair – statutory interpretation: words and phrases: “or other similar aid/or appliance”, ‘ “curative” apparatus’; ejusdem–generis – expert evidence
Safety, Rehabilitation and Compensation Act 1988 ss 4, 16, 36, 37, 39
MRCC v Pollanen [2005] FMCA 957
Thiele v Commonwealth of Australia (1991) ISACR 172R v Regos and Anor (1947) 74 CLR 613
Thiele v Commonwealth of Australia (1991) 95 ALR 172Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
REASONS FOR DECISION
17 July 2006 Dr EK Christie, Member 1. This is an application by Neil Hart for a review of the decision made by a delegate of the MRCC on 7 October 2005 that the Commonwealth was not liable to pay compensation for the purchase of a bed and a computer chair.
2. The evidence before the Tribunal comprised of the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) [Exhibit R1] and the various exhibits lodged by the parties.
3. The applicant was represented at the hearing by Mr R Anderson of Counsel instructed by Terence O’Connor, Solicitor. The respondent was represented by Mr C Clark of Counsel instructed by Phillips Fox.
Issues before the Tribunal
4. The only issues for the Tribunal to decide were:
(a)whether the provision of a chiropractic bed (‘the bed”) was “medical treatment” in accordance with s 16 of the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”) and if so, whether it was reasonable for such medical treatment to be obtained by Mr Hart; and
(b)whether the provision of an ergonomic chair (‘the chair”) was “medical treatment” in accordance with s 16 of the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”) and if so, whether it was reasonable for such medical treatment to be obtained by Mr Hart.
5. During closing submissions at the hearing, Mr Anderson conceded that issues under s 39, SRC Act relating to whether the chiropractic bed and the ergonomic chair came with the statutory meaning of an “aid or appliance” were no longer in issue. Mr Anderson stated that “as a matter of fact I don’t think there is any evidence which would suggest a rehabilitative program of the kind that seems to be required by Pollanen’s [case] as being satisfied. I don’t think it is really in issue”.
Statutory Requirements and Legal Principles
6. Section 4 of the Safety and Rehabilitation Compensation Act 1988 [“the SRC Act”] gives the following definition of "impairment":
“‘impairment’ means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function."
(a) Rehabilitation Programs
7. Part III of the SRC Act provides for “rehabilitation programs”. The following provisions of this Part are relevant for this application for review:
“36(1) Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program.”
“37(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.”
“39(1) Where:
(a) an employee suffers an injury resulting in an impairment; and
(b)the employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a 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:
…
(e)any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances; being … 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 program.” (Emphasis added).
8. In relation to meaning of “rehabilitation program” referred to in s 39(1)(b) of the SRC Act, the Court in MRCC v Pollanen [2005] FMCA 957, concluded:
“23. The primary rule of interpretation is that words are to be given their ordinary grammatical meaning. In s 39 (1)(b), the word ‘program’ appears twice. On the first occasion the context is ‘the employee is undertaking, or has completed, a rehabilitation program’. On the second occasion, the context is ‘or has been assessed as not capable of undertaking such a program’. Because it is ‘such a program’, the second occasion is a rehabilitation program of the same sort as the first occasion. The second occasion must be referring to the sort of rehabilitation program where an assessment occurs. Since both the first occasion and the second occasion are the same sort of rehabilitation program, the first occasion must be one where an assessment occurs.
24. Assessments occur under s 36 of the Act. The assessment is done for the purpose of a rehabilitation authority making a determination under s 37 that a rehabilitation program should be undertaken. It follows that the ordinary grammatical meaning of 39(1)(b) that it is referring to a rehabilitation program undertaken after assessment and determination pursuant to ss 36 and 37 of the Act.”
9. At the commencement of the hearing, the Tribunal sought clarification from the parties whether Mr Hart had undertaken a rehabilitation program [in accordance with s 39 of the SRC Act] and whether he had been assessed as capable of undertaking a rehabilitation program [in accordance with s 36 of the SRC Act]. There was no evidence before the Tribunal of Mr Hart as having been assessed as being capable of undertaking, or actually undertaking, a rehabilitation program in accordance with the prescribed statutory requirements.
10. Applying Pollanen’s case to this factual situation, s 39 of the SRC Act has no application to the Tribunal’s decision-making process. Accordingly, the question of law whether the chiropractic bed and ergonomic chair came within the meaning of an “aid or appliance” as provided in s 39 of the SRC Act, is not an issue for the Tribunal to decide.
(b) Compensation
11. Part II of the SRC Act provides for “compensation”. Based on the submissions of both parties, the following provisions of this Part are relevant for this application for review:
“16 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 (Emphasis added)”,
where “medical treatment” is defined (at section 4) as:
(a) …
(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
(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or …
12. Paragraphs (f) and (h) of s 4(1) of the SRC Act both contain a general word or phrase that follow a list of specifics that are relied on by the applicant to establish that the purchase of the bed and chair come within the statutory meaning of “medical treatment” (s 16 SRC Act). The rule of construction ejusdem-generis applies in this situation. In R v Regos and Anor (1947) 74 CLR 613 (at 623, 624), Latham CJ made the following observations:
“The ejusdem-generis rule is sometimes stated in very broad terms … where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified”
And later:
“Before the rule can be applied it is obviously necessary to identify some genus which comprehends the specific case for which provision is made … you have to see whether you can constitute a genus of the particular words, and, if you can, then unless there is some indication to the contrary, you must construe the general words as having relation to that genus.”
13. Based on his analysis of authorities, Latham CJ concluded that:
“The ejusdem-generis rule can be applied only where there is a genus to which all the acts or things specifically mentioned can be assigned. It is not sufficient to show that there are two or more such genera.”
14. Paragraph (h) of s 4(1) of the SRC Act contains the technical term, “curative apparatus”. This provision is also relied upon by the applicant.
15. The “popular” meaning of “curative” is defined in the Macquarie Dictionary (4th Ed. 2005) as meaning: “1. serving to cure or heal; relating to curing or remedial treatment; remedial”.
16. Next, the Tribunal considers the “technical” meaning of “curative”.
17. The Gould Medical Dictionary (4th Ed. 1979) defines “curative” as “having a healing tendency; pertaining to the cure of a disease”. Similarly, Dorland’s Illustrated Medical Dictionary (27th Ed. 1988) defined “curative” as “tending to overcome disease and promote recovery”.
18. Both the “popular” and “technical” meaning of “curative” are constituted with the legal meaning given to “curative” in the term “curative apparatus” in the SRC Act.
19. In Thiele v Commonwealth of Australia (1991) 95 ALR 172 Hill J made the following observations in relation to the meaning of “curative apparatus”:
“…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” (at 179) and later (at 181) as obiter dicta:
“Although it is not necessary for present purposes to decide, 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.”
General Facts
20. Mr Hart has an accepted condition – L5/S1 disc degeneration following an injury on 15 February 1989 whilst a serving member of the Regular Australian Army. He was discharged in August 2001.
21. Mr Hart was assessed on 21 March 1995 as having 10% WPI by Dr P Boys (T6) – “mechanical back pain reflecting L5/S1 invertebrate disc degeneration. Later, on 23 May 2001 (T7) Mr Hart was assessed by Dr Boys as having 15% WPI associated with his accepted back condition. Dr Boys further examined Mr Hart on 16 February 2006.
22. Mr Hart replaced his existing bed and computer chair in June 2005 by purchasing them from commercial furniture department stores. At this time, his existing bed was 13 years old and the computer chair 15 years old.
23. Mr Hart claims the following feature as a consequence of his accepted condition [Exhibit A1]:
(i) Constant pain right down both legs;
(ii) Constant very severe pain;
(iii)Unable to sit straight in an ordinary chair for any period of time whatsoever. Only able to sit on an ordinary chair in a slumped position;
(iv)Severe pain in lower back after any mild activity such as undertaking domestic housekeeping chores or doing some light gardening
(v)Restricted movement in lower back. Unable to bend over and to lower. Has to get down on one knee at a time;
(vi)Before the purchase of the chiropractic bed he was unable to sleep properly due to lower back pain in his existing bed.
(vii)That he is unable to use his existing computer chair because it was too rigid and does not effectively support his lower back.
24. Mr Hart is currently receiving treatment for his lower back condition at the Greenslopes Hospital Pain Clinic [Patient History taken by Dr Boys, Exhibit R2, 16 February 2006].
25. Before purchasing the bed Mr Hart tested at least 12 beds at commercial department furniture stores. His test involved lying on each bed for at least 15 minutes. He tested computer chairs in a similar manner by sitting on different styles of chair for at least 10 minutes (Exhibit A2).
Consideration of the Issues
26. There is only one decision possible in this application for review: whether Mr Hart is entitled to a “chiropractic bed” and an “ergonomic chair” under the provisions of the Safety Rehabilitation and Compensation Act 1988. Accordingly, the question for the determination of the Tribunal is whether the decision under review is the correct one.
[See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68]
27. The ultimate questions for the Tribunal to decide are directly related to questions of law arising from the construction for the statutory term “medical treatment” as prescribed in s 16 and as qualified by the definition provided in s 4(1) of the SRC Act. Specifically, whether the chair and bed come within the meaning provided for “medical treatment” in s 4(1), paragraphs (f) and (h). The basis for the submissions of the applicant is that the chair or bed come within para (f) as an “other similar aid or appliance” or in the alternative, come within para (h) as “curative apparatus”.
28. The first issue, in this regard, for the Tribunal to consider is whether the bed and chair come within the meaning for “medical treatment” as prescribed by s 4(1) of the SRC Act. Paragraph (f) of s 4(1) commences with specific words which imply the “aid or appliance” to be specialised and of a rehabilitative character. General words that follow are disjunctively joined by “or”, as alternatives, “medical, surgical or other similar aid or appliance”.
29. The Tribunal concludes that the genus [i.e. class or category or kind] that can be defined, and for which this statutory provision is made, and to which “other similar aid or appliance” can be assigned is “an aid or appliance” that is specialised and rehabilitative in character and being a medical or surgical aid or appliance.
30. A bed or chair purchased commercially must fail as coming within the meaning of an “aid or appliance” under s 4(1), para (f), as it represents another genus unrelated to the genus defined by the specific words for which this statutory provision is made.
31. The next issue for the Tribunal to consider is whether the bed and chair were within the meaning of “curative apparatus” in accordance with the provisions of s 16(1) and s 4(1), para (h) of the SRC Act and so satisfy the statutory meaning of “medical treatment”.
32. Paragraph (h) of s 4(1) commences with specific words which apply that “curative apparatus” is to have the character of professional care. General words that follow are conjunctively joined by “and”, and so cumulative in effect, and further define the care to be of the nature of medical and surgical supplies.
33. Furthermore, based on case law and principles of statutory construction, the Tribunal concludes that the meaning of “curative apparatus” involves apparatus to be used in a continuing process over time to deal with Mr Hart’s accepted condition, that is “remedial” or “promotes recovery”.
34. Accordingly, the Tribunal concludes that, based on the cumulative effect of the specific and general words in para (h), the genus which can be defined for which para (h), s 4(1) of the SRC Act is made, and to which “curative apparatus” can be assigned is a medical or surgical supply, that is rehabilitative in character - by being remedial or by promoting recovery over time from the accepted condition.
35. A bed or chair purchased commercially must fail in terms of coming within the meaning of “curative apparatus” under s 4(1) para (f) as the bed and chair represents another genus unrelated to the genus defined by the specific words for which this statutory provision is made. The bed and chair are neither medical nor surgical in character.
36. Notwithstanding the Tribunal’s findings that the bed and chair do not come within the statutory meaning of “medical treatment” as prescribed in s 16 and s 4(1) paras 4(1) (f), (h) of the SRC Act, the Tribunal cannot be satisfied, on the civil standard of proof, that the purchase of the specific bed and chair chosen by Mr Hart in June 2005 was reasonable for him to obtain in the circumstances.
37. The evidence before the Tribunal indicates that the following process used by Mr Hart to choose the specific bed and chair:
· an occupational therapy report by Ms W Biggar (T10, 6 May 2005) recommended an approach be made to MRCS for assistance with the purchase of a suitable bed and an adjustable height chair;
· Ms Biggar’s evidence was that she had subsequently seen Mr Hart on 6 June 2005 but could not recall if the bed had been discussed at this time or whether he had actually purchased it;
· Ms J Falkard’s (Physiotherapist) evidence was that whilst she could remember telling Mr Hart about purchasing a chair and bed she did not initiate the purchase. As far as she could remember, Mr Hart had committed himself to the purchase before discussing it with her. She acknowledged that she did not give any specifications or technical qualities that the bed should have. Rather, she acknowledged that choice was a subjective thing and her instruction to Mr Hart was “to lie on it to see whether it was comfortable and supportive”.
· Dr W Reddy’s (Treating GP) evidence was that he had not given any advice to Mr Hart as to the type of bed to purchase as he had left it to Mr Hart to follow through the advice of his physiotherapist [Ms Falkard]. At the time he saw Mr Hart (13 June 2005) he was uncertain if the bed had been purchased by Mr Hart.
38. Dr Boys’ opinion is a relevant consideration in this regard. The Tribunal accepts his opinion and considers it to be objective in its approach. Dr Boys acknowledged that Mr Hart’s posture and gait had deteriorated over time (1995-2006) – but that as far as his clinical examination on an objective level, it was his opinion that there was no particular evidence of deterioration. There was no evidence of lower limb muscle wasting and that muscle power had been preserved in the limbs. It is important to recognise that Dr Boys’ opinion is based on three consultations over time: March 1995(T6), May 2001 (T7) and February 2006 (Exhibit R2).
39. In addition, Dr Boys expressed the opinion that Mr Hart suffers a complex amalgamation of, inter alia, physical and psychological issues such that physical rehabilitation measures in isolation would be ineffective in reducing symptoms.
40. Given, that the meaning of “other aid or appliance” [para (f) s 4(1) SRC Act] and “curative apparatus” [para (h) s 4(1)] both require the “aid” or “apparatus” so purchased to be at least rehabilitative in character as well as of a medical or surgical character, then - in the context of all the expert medical opinion, it could not be concluded that the process used by Mr Hart to choose an appropriate bed was “reasonable” in all of the circumstances.
41. Whilst this outcome may seem harsh, it would be more appropriate to describe the outcome as unfortunate. The SRC Act gives the Tribunal no other option than to make such a finding, given that there has never been any assessment of Mr Hart as having been assessed as being capable of undertaking (s 36) or actually undertaking (s 37), a rehabilitation program. If this were the case Mr Hart could have sought assistance for the purchase of the chair and bed, as an “aid or appliance” as part of the requirements of his rehabilitation program (s 39).
42. There is no discretion in the legislation for the Tribunal to make any other decision based on the application of the relevant statutory provisions (and case law principles) that prescribe the questions of law that must be addressed by the facts before the Tribunal.
43. However, the Tribunal does raise for consideration by Mr Hart and the MRCC, the Commonwealth Policy Guideline, “Act of Grace Payments”.
44. The Commonwealth Policy Guideline for Act of Grace Payments [Attachment C to Finance Circular 2000/01] states as follows:
§ “The Australian Government may provide discretionary assistance in some cases by act of grace payments, or by waiving debts owed to the Australian Government. In general, this assistance may be granted where it is considered that the Australian Government has a moral responsibility to provide assistance, rather than a legal responsibility.
§ This may be because of an action, or failure to act, by an Australian Government agency. Such an obligation may also arise because of the unforeseen and anomalous operation of a federal law or program (Emphasis added).
§ However, the act of grace and waiver provisions are not intended as a means to correct anomalies in federal law or administration that should be rectified by other means. Nor are they intended as an alternative to settlement of legal claims.
§ The conditions under which act of grace claims are determined can broadly be characterised as where the Commonwealth considers it has a moral obligation, as opposed to a legal obligation, to provide redress because (Emphasis added):
(a) the Commonwealth’s direct role, acts or omissions in relation to the particular case has caused an unintended or inequitable result for the individual or entity concerned;
(b) the application of Commonwealth legislation has produced a result that is unintended, anomalous, inequitable or otherwise unacceptable in a particular case (Emphasis added); or
(c) the matter is not covered by legislation or specific policy, but it is intended to introduce such legislation or policy and it is considered desirable in a particular case to apply the benefits of the relevant provisions prospectively.
§ The act of grace power is a unique discretion given to the Minister for Finance and Administration to make payments to persons who may have been unintentionally disadvantaged by the effects of Commonwealth Government legislation, actions or omissions and who have no other viable means of redress.
§ The act of grace power should not be seen as an alternative to other viable avenues of redress but rather as a remedy that may only be applied in special circumstances to ensure consistency and equity in the impact of Government activities.
§ The authority to act of grace payments is provided by s33 of the Financial Management and Accountability Act 1997 (the FMA Act), under which the Minister for Finance and Administration, or the Minister’s Parliamentary Secretary, may authorise a payment if he or she considers it appropriate to do so because of special circumstances
§ Act of grace payments can arise from any sphere of Commonwealth administration. As implied by s 33(1) of the FMA Act, the Minister has an unfettered discretion to determine each act of grace request on a case by case basis and as such, it is not appropriate to specifically define special circumstances.”
45. In relation to the Departmental “Act of Grace Policy”, the Tribunal considers that there is no issue for a claim under the Departmental Policy, “Compensation for Detriment Caused by Administrative Error”, as there is no real evidence before the Tribunal, that could be tested, of departmental administrative procedures that would have applied to Mr Hart’s circumstances.
46. In any external consideration of the possibility for an Act of Grace Payment, due regard must be given to the following aspects of the evidence and information before the Tribunal:
(a)Mr Hart has treatment directed to the lower back through the pain clinic of the Greenslopes Hospital (Dr H Rodins) [see Exhibit A2, Report of Dr P Boys 16 February 2006]. There was no further evidence before the Tribunal on this point;
(b)Mr J Falkard’s (Physiotherapist) oral evidence before the Tribunal verifies Mr Hart’s account of the enquiries he had made to DVA, and on which he had acted before purchasing the bed and chair:
“[Mr Hart] had said he had rung Vet Affairs to see whether he could get a bed and a chair, and he was told, yes, he could. So he went out to purchase these items, and then I think he must have sent receipts in, whatever, and was told, no, that Vet Affairs wasn’t going to pay for it. So he told me about this, and hence the letter was written.” [T10, 6 May 2005]
(c)Section 36 of the SRC Act provides for the “rehabilitation authority” with the discretion, at any time, to arrange for the assessment of an employee’s capability of undertaking a rehabilitation program. Mr Hart was assessed as having a 10% WPI for his lower back condition in 1989 whilst a serving member of the Regular Army. He was later re-assessed as having a 15% WPI in May 2001 i.e. before he was discharged from the Army in August 2001. There is no evidence before the Tribunal why Mr Hart was not assessed for his capability to undertake a rehabilitation program.
If this had been the case, and Mr Hart was undertaking a rehabilitation program, then his request for assistance for the purchase of the bed and chair would have been considered by the respondent [and his rehabilitation provider] in terms of being an “aid or appliance” under s 39 of the SRC Act, and not as “medical treatment” under s 16 of the SRC Act. This would have been a much more structured process than the situation in which he found himself in June 2005.
(d)Mr Hart suffers a “complex amalgamation” (Dr Boys’ terminology) of medical conditions – including the psychiatric conditions of PTSD and compulsive obsessive disorder. It is in all likelihood, that these conclusions may affect Mr Hart’s capacity to make rational decisions in managing his day to day affairs. That is, it is quite possible that the effects of these conditions may have led to the predicament Mr Hart has now found himself in – quite independently of any other underlying factor on his part. There is no medical evidence before the Tribunal in this regard. This aspect needs to be considered in the context of the somewhat limited professional assistance and advice provided to Mr Hart, by his “medical team” in choosing the appropriate bed and chair, particularly if an Act of Grace payment is to be pursued.
47. In relation to the Act of Grace policy, the Tribunal considers that the legal outcome in Mr Hart’s factual circumstances, may have led to a result that is an “unintended anomalous, inequitable, unjust or otherwise unacceptable result”. On consideration of the overall circumstances, it may even lead to a conclusion “that there is a moral obligation on the Commonwealth to make a payment”.
48. The Tribunal emphasises that it has no power whatsoever to order that an Act of Grace Payment be made to Mr Hart. The process for such a payment is for Mr Hart to make a claim to the MRCC for an Act of Grace payment and to request that his claim be assessed under the specified eligibility criteria. The final authority to grant an Act of Grace payment does not rest with the Tribunal, but the Minister for Finance or their appointee.
49. For all of the above reasons, the Tribunal affirms the decision under review.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: J Lauriston
(for) Legal Research Officer
Date/s of Hearing 6 June 2006
Date of Decision 17 July 2006
Counsel for the Applicant Mr R Anderson
Solicitor for the Applicant Terence O’Connor, Solicitor
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Phillips Fox
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