Houston and Comcare
[2005] AATA 99
•3 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 99
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/641
GENERAL ADMINISTRATIVE DIVISION )
Re BRIGID HOUSTON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S C Fisher, Member Date3 February 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..................[Sgd]............................
S C Fisher
Member
CATCHWORDS
COMPENSATION – Incapacity – Benefits and entitlements – Whether respondent is liable to pay accommodation costs (rent) while modifications are carried out to the applicant’s home – Construction of section 39 of the Safety, Rehabilitation and Compensation Act 1988 – Section 39 does not extend respondent’s liability to pay cost of alternative accommodation – Respondent not liable to pay alternative accommodation costs – Decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 29, 39, 61, 67
Acts Interpretation Act 1901 ss 15AA, 15ABSecretary, Department of Social Security v Murphy, Federal Court, 29 June 1998, 908/98; (1998) 52 ALD 269
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248; 74 ALD 21
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598; (1981) 4 ALD 198
Wilby and Comcare [2001] AATA 739
Wilby and Comcare [2003] AATA 651
Haberfield v Department of Veterans’ Affairs as Delegate for Comcare [2002] FCA 1579; (2002) 72 ALD 333
Walton and Comcare [2003] AATA 547; (2003) 74 ALD 539
Howard and Comcare [2003] AATA 1316
Australian Postal Corporation v Forgie [2003] FCAFC 223;(2003) 202 ALR 63; (2003) 76 ALD 578REASONS FOR DECISION
3 February 2005 Mr S C Fisher, Member Introduction and Background
1. Mrs Brigid Houston (the Applicant) was employed by Centrelink at all material times. The Applicant was injured in an accident at work on 2 August 2002, sustaining “fracture of lateral malleolus closed (right)”. The Applicant subsequently developed a condition of “massive pulmonary embolism”. Comcare (the Respondent) accepted liability for both conditions on 4 November 2002. The Applicant subsequently made several claims for compensation for the cost of medical treatment and for various aids and appliances. For the purposes of this appeal, it is not necessary to state or identify those claims in any detail and the consequential determinations made by the Respondent. The Respondent did accept liability for the cost of the payment of certain modifications to the Applicant’s home necessitated by the Applicant’s work-related injuries.
2. On 24 June 2004, in response to a claim dated 29 February 2004 by the Applicant, the Respondent denied liability to pay for the cost of alternative accommodation (rent) during the period when modifications are being carried out to the Applicant’s home. On 7 July 2004 the Applicant, through her husband who is representing the Applicant in her dealings with the Respondent, requested a reconsideration of the 24 June 2004 determination. On 19 July 2004, the Respondent’s reconsideration denied such liability. The Applicant appealed to this Tribunal on 11 August 2004.
3. The parties treated this appeal as urgent on the basis that the Applicant has a builder on stand-by who is able to commence construction of the approved modifications in late February 2005. Accordingly, the Tribunal has attempted to accommodate the parties in this regard insofar as the time of delivery of its decision is concerned.
Jurisdiction
4. The Tribunal has jurisdiction in this appeal by virtue of Part VI of the Safety, Rehabilitation and Compensation Act 1988 (the Act). References to statutory provisions are to provisions of the Act unless the context indicates otherwise.
The Decision under Review
5. The decision under review is the 19 July 2004 determination of the Respondent that denied liability to pay accommodation costs (rent) during the period when modifications are being carried out to the Applicant’s home.
The Role of the Tribunal
6. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy, Federal Court, 29 June 1998, 908/98; (1998) 52 ALD 269. The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal must base its decision upon material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigrationand Ethnic Affairs (1981) 36 ALR 598 at 601.
The Material Before the Tribunal
7. The following material was taken into evidence by the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
Exhibit 2Comcare Determination dated 22 October 2004.
Exhibit 3Medical report from Dr Susan Byth dated 7 September 2004.
Evidence
8. Neither party called any evidence. The nature of the issue for the Tribunal did not require any evidence to be called by the parties or from the Tribunal of its own motion. The Tribunal decided that it was not necessary to cross-examine Dr Susan Byth in relation to her 7 September 2004 medical report.
Issue
9. The issue in this appeal is whether section 39 of the Act empowers the Respondent to pay accommodation costs in the nature of rent while the Applicant must reside away from her home while necessary modifications to her home are constructed.
Applicant’s Submissions
10. The submissions of the Applicant can be summarised as follows:
A.The Respondent has accepted liability for the cost of the renovations/modifications to her home, so if the nature of those modifications require her to be absent from her home, then the Respondent should also have a consequential liability to pay for the cost of accommodating her (and her family, including her husband who provides daily care for her) in alternative accommodation while those modifications are carried out.
B.Alternative accommodation in a nursing home or similar facility would cause unnecessary stress. In that regard, the Applicant relied upon the medical report dated 7 September 2004 from her treating medical practitioner, Dr Susan Byth (Exhibit 3).
C.Section 16(6)(b)(ii) of the Act was not relevant and did not support the Applicant’s claim for the cost of alternative accommodation.
D.The Applicant contended that sections 39(1)(a) - (c) and the remainder of section 39(1) after section 39(1)(e) justified the Respondent making payment for the accommodation costs.
Respondent’s Submissions
11. The Respondent’s submissions were these:
A.The critical issue is the proper scope and application of section 39(1) of the Act. This provision does not authorise or empower the Respondent to pay the costs of accommodation while household modifications are made, upfront. The only costs, within section 39, that the Respondent is liable to pay compensation for are the reasonable costs of those items mentioned in section 39 (1) (c) – (e). The proposal of the Applicant that the Respondent is liable to pay accommodation costs is outside the range of liable expenditures referred to in those provisions.
B.The factors contained in section 39(2) of the Act do not elucidate affirmatively for the Applicant the liability of the Respondent to pay accommodation costs. If anything, those factors only go towards establishing the reasonableness of the quantum of compensation payable for section 39(1) expenditure.
C.There is no provision under the Act, including section 39 that provides for the Respondent’s liability to pay compensation for the cost of rental accommodation while household modifications are carried out.
D.Nothing in the Second Reading Speech to the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 evinces a legislative intent that the Act is to provide injured employees with indemnity for the cost of alternative accommodation while household modifications are carried out.
E.Nothing in the Explanatory Memorandum to section 39 of what is now the Act authorises the Respondent to provide injured employees with indemnity for the cost of alternative accommodation while household modifications are carried out.
F.Nothing in the annotations to section 39 of the Act contained in J Ballard & P Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988 (6th ed, The Federation Press, Sydney, 2003) suggests even by way of analogy that the Respondent is liable to pay accommodation costs to be incurred by the Applicant.
G.Section 16 does not support the liability of the Respondent to pay accommodation costs to be incurred by the Applicant as this falls outside of the ambit of “medical expenses” under that provision.
H.Decisions of this Tribunal in Wilby and Comcare [2001] AATA 739 and Wilby and Comcare [2003] AATA 651 and of the Federal Court in Haberfield v Department of Veterans’ Affairs as Delegate for Comcare [2002] FCA 1579 demonstrate that the Respondent does not have any liability to pay compensation for personal services and attendant care services that extends to accommodation costs.
I.Accordingly, the only decision that the Tribunal could make in the circumstances disclosed in this case is to affirm the decision under review.
Applicable Legislation
12. Section 39 of the Act states:
“39 Compensation payable in respect of certain alterations etc.
(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:
(c) any alteration of the employee’s place of residence or place of work;
(d) any modifications of a 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 program.
(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;
(c)any difficulties faced by the employee in gaining access to, driving or enjoying freedom and safety of movement in, a vehicle used by the employee;
(d) any alternative means of transport available to the employee;
(e)whether arrangements can be made for hiring the relevant aid or appliance;
(f)when the employee has previously received compensation under this section in respect of an alteration of his or her place of residence or a modification of a vehicle and has later disposed of that place of residence or vehicle—whether the value of that place of residence or vehicle was increased as a result of the alteration or modification.
(3) An amount of compensation payable under this section is payable:
(a) to, or in accordance with the directions of, the employee;
(b)if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost—to that other person; or
(c)if that cost has not been paid and the employee, or the legal personal representative of the employee, is unable, or refuses or fails, to make a claim for the compensation—to the person to whom that cost is payable.
(4)Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (3) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first‑mentioned person.”
Findings of Fact
13. Based upon the evidence before it, the Tribunal makes the following findings of fact:
A. Mrs Brigid Houston (the Applicant) was born on 25 October 1950.
B. At all material times, the Applicant was employed by Centrelink.
C.The Applicant lodged a Claim for Rehabilitation and Compensation Fund on 6 August 2002 in respect of a fracture to the right leg which she sustained in a work accident on 2 August 2002.
D.On 15 August 2002, the Applicant suffered a pulmonary embolism and infarction.
E.On 4 November 2002, Comcare (the Respondent) accepted liability for the conditions of “fracture of lateral malleolus closed (right) and pulmonary embolism and infarction”.
F.On 29 February 2004, the Applicant sought compensation for rental accommodation expenses while proposed modifications are carried out.
G.By a determination dated 24 June 2004, the Respondent denied liability for rental expenses while modifications are carried out to the home of the Applicant.
H.On 7 July 2004 the Applicant sought internal review of the 24 June 2004 determination.
I.On 19 July 2004, the Respondent affirmed the earlier determination of 24 June 2004.
J.The Applicant sought review of the determinations of 24 June 2004 and 19 July 2004 by this Tribunal by an Application for Review dated 11 August 2004.
K.By a determination dated 22 October 2004, the Respondent approved a claim by the Applicant for payment of the cost of a number of household modifications to the home of the Applicant.
Tribunal’s Reasons
14. The Respondent has accepted liability for compensation for the work-related injuries to the Applicant, including the consequential pulmonary embolism and infarction that has incapacitated the Applicant. This determination is not in issue. Consequently, compensation of the nature referred to in sections 14 (compensation for injuries) and 16 (compensation in respect of medical expenses) is payable in accordance with the terms of those provisions and subject to any necessary qualifications being satisfied. The Respondent has accepted liability for reasonable costs for certain alterations to the Applicant’s place of residence within section 39(1)(c). The Applicant seeks to have the Respondent accept liability for accommodation costs necessitated by the absence of the Applicant from her home while the necessary modifications within section 39(1)(c) are carried out. It was common ground between the parties that the absence of the Applicant from her home is required during the course of construction of the agreed modifications. The dispute between parties centres on the Respondent’s liability to pay these accommodation costs.
15. As far as the research of the Tribunal is concerned, the point under consideration is a novel point and has not been the subject of a previous Tribunal, Federal Court or High Court decision. Decisions of this Tribunal in Wilby and Comcare [2001] AATA 739 and Wilby and Comcare [2003] AATA 651 and of the Federal Court in Haberfield v Department of Veterans’ Affairs as Delegate for Comcare [2002] FCA 1579 were referred to by the Respondent in oral argument. These cases were said, contended the Respondent, to demonstrate that even by analogy, accommodation costs of the nature sought by the Applicant are not payable under the scheme of sections 29 and 39.
16. The competing contentions of the parties have been noted earlier in these Reasons for Decision, and do not require extensive repetition at this point. There is no issue in this case that the accommodation costs do not satisfy the necessary nexus to the injury of the Applicant (compare Walton and Comcare [2003] AATA 547 at [32] and [36]) or even that they are reasonably required as a not-too-remote consequence of the approved modifications to the home of the Applicant (compare Howard and Comcare [2003] AATA 1316).
17. The Tribunal turned to consider more closely section 39 (extracted above). Expressions within section 39 such as “impairment” and “rehabilitation program” are defined in section 4(1), but do not require recitation at this point as there is no issue about the application and operation of these terms in this appeal.
18. The scheme of section 39 is as follows. Section 39(1) imposes liability on a relevant authority such as the Respondent to pay compensation for the reasonable costs of certain items listed in section 39(1)(c) – (e) (certain alterations, modifications and aids or appliances) the cost of which an employee is otherwise liable to pay, so long as they are reasonably required having regard to the nature of the employee’s impairment. Section 39(1) is supported by the signposts contained in section 39(2) that sets out the matters to which the Respondent must have regard to in determining the amount of compensation payable under section 39(1). Section 39(2) does not enlarge or extend the type of payments for which compensation is payable under section 39(1). Put another way, section 39(2) is directed only towards the quantum of compensation; this provision cannot subvert section 39(1) by sweeping up additional heads of expenditure that are not contemplated by the clear words of section 39(1) or indeed any other provision of the Act. Section 39(3) sets out machinery concerning the methods by which section 39 compensation is payable. Section 39(4) concludes section 39 with a mechanism of substituted satisfaction of liability, so that if a relevant authority makes a section 39(3) payment to the relevant supplier of the relevant goods or services (alterations, modifications, aids or appliances), then this discharges pro tanto the liability of the person to whom or for whose benefit these goods or services are supplied (normally the employee but sometimes a third party who may be but is not necessarily related to or connected to the employee).
19. The Tribunal took into account that in approaching the construction and interpretation of section 39, the Full Court of the Federal Court has stated in Australian Postal Corporation v Forgie [2003] FCAFC 223;(2003) 202 ALR 63 at [64] that the Act should not be construed in a narrow or technical way and that the Act is remedial or beneficial legislation that should be generously interpreted (see DC Pearce and RS Geddes, Statutory Interpretation in Australia, 5th ed. Butterworths, Australia, 2001 at 9.2 - 9.3). The Respondent urged that irrespective of any sympathy that it or the Tribunal might have for the Applicant and her very unfortunate circumstances, this did not and should not colour the proper construction and interpretation and application of section 39. These propositions, of course, the Tribunal is in agreement with.
20. On its face, section 39 does not extend the liability of the Respondent (or any relevant authority) to pay for or reimburse accommodation costs of the Applicant necessitated by accepted or approved section 39(1)(c) payments. A purposive or teleological interpretation of section 39 following the signpost contained in section 15AA of the Acts Interpretation Act 1901 does not change this. Reference to any extrinsic material to the Act (to which the Respondent referred the Tribunal in the course of the hearing), as allowed by section 15AB of the Acts Interpretation Act 1901, is not of any real assistance in this case because section 39 is not ambiguous or obscure nor does its operation in the manner contended for by the Respondent lead to a result that is manifestly absurd or is unreasonable. In this regard, contrary to what it might be supposed the Applicant considers, reasonableness is an objective standard, not a subjective standard. Accordingly, it is not the idiosyncratic understanding of reasonableness that is to be applied in construing and interpreting section 39. In other words, the construction of section 39 is constrained by a legislatively-enshrined norm that it should not produce an unreasonable result, but the question of reasonableness is determined objectively. In the opinion of the Tribunal, section 39 does not produce a manifestly absurd or unreasonable result in the circumstances of this appeal.
21. The Tribunal considered the annotations to section 39 of the Act contained in J Ballard & P Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988 (6th ed, The Federation Press, Sydney, 2003), pp 309 – 311. Nothing in this source supports or points to any liability of the Respondent to pay for the alternative accommodation costs of the Applicant in the circumstances of this appeal.
22. Invoking the well-known canon of statutory interpretation that supports a large or generous interpretation and operation of beneficial legislation such as the Act or the teleological approach to statutory interpretation mandated by section 15AA of the Acts Interpretation Act 1901 does not assist the Applicant in this case. This is a case in which the express words of the statute must govern the outcome. Nothing in section 39 of the Act empowers or compels the Respondent to pay compensation for the cost of alternative accommodation of the Applicant while her place of residence undergoes renovations designed to assist her to manage her impairment caused by her work-related injuries. This reasoning and finding is sufficient to dispose of the case submitted by the Applicant.
23. The Tribunal considered next whether any other provisions of the Act might support or ground the liability of the Respondent to pay for the cost of alternative accommodation of the Applicant while her place of residence undergoes renovations designed to assist her to manage her impairment caused by her work-related injuries. Section 16 imposes liability on the Respondent, which it has accepted, to pay compensation for “medical treatment” which results in medical expenses. “Medical treatment” is defined in section 4(1) of the Act, which reads:
“medical treatment means:
(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
(i)any other form of treatment that is prescribed for the purposes of this definition.”
24. Sub-paragraph (h) empowers the Respondent to pay for the cost of “nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise” under the rubric of “medical treatment”. The Tribunal noted that in its 24 June 2004 determination, the Respondent in fact offered to pay costs under this provision, so long as the Applicant was receiving nursing care whether in a hospital or some other facility. The contention of the Applicant is that, having regard to medical evidence (Exhibit 3), the Applicant’s placement in a facility contemplated by this provision is psychologically damaging to her, and that is why this particular benefit has not been utilised by the Applicant. The Tribunal is of the opinion that none of the components of the definition of “medical treatment” in section 4(1) of the Act empower or authorise the Respondent to pay for accommodation costs of the Applicant (or of members of her immediate family) while the necessary renovations to her residence are carried out.
25. The Tribunal considered the entirety of Parts II (compensation), Part III (rehabilitation) and Part V (claim for compensation) of the Act, but is of the opinion that no other provision within these Parts provides a basis for the liability of the Respondent to pay for accommodation costs of the Applicant. In particular, nothing in section 29 (compensation for household services and attendant care services) supports the liability of the Respondent contended by the Applicant.
26. The Tribunal acknowledges that the Applicant will be disappointed with its decision. The Tribunal is sympathetic to the position and plight of the Applicant and acknowledges the difficulties and challenges that she and her family have had to endure since her unfortunate workplace injury and its sequelae. Nevertheless, the scheme, letter and spirit of the Act do not support or justify this Tribunal making a substituted merits-based review decision imposing liability upon the Respondent to pay for alternative accommodation costs in the nature of rent while section 39(1)(c) modifications are carried out to the Applicant’s place of residence. This Tribunal is not vested with a general discretion to circumvent, override, sidestep or supplant the otherwise very clear terms of section 39 that provide an exhaustive or complete “code” of the liability of the Respondent to pay for alterations, modifications, aids or appliances necessitated by the impairment of an employee.
27. The Tribunal notes the offer of the Respondent to pay for nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise for the Applicant on the basis that this is an authorised head of expenditure for which it has antecedent liability under section 16 of the Act by virtue of an earlier determination made under section 61.
Tribunal’s Conclusion
28. The conclusion of the Tribunal in this case is that the correct or preferable decision is that the Respondent is not liable to pay the alternative accommodation costs of the Applicant while approved modifications to the Applicant’s place of residence are carried out under section 39 of the Act.
29. In view of its conclusion, the Tribunal notes that there is no basis for it to make an order in favour of the Applicant concerning payment of any costs incurred by the Applicant within section 67(8) of the Act.
Tribunal’s Decision
30. The Tribunal decides to affirm the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S C Fisher, Member
Signed: Camille Banks
AssociateDate of Hearing 20 January 2005
Date of Decision 3 February 2005The Applicant was represented by her husband, Mr David Houston
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Sparke Helmore Lawyers
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