Loder and Military Rehabilitation and Compensation Commission
[2004] AATA 1021
•30 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1021
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/1519
GENERAL ADMINISTRATIVE DIVISION ) Re FAY LODER Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member G Ettinger Date 30 September 2004
Place Sydney
Decision The Tribunal affirms the decision under review. [Sgd] Ms G Ettinger
Senior Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1519
GENERAL ADMINISTRATIVE DIVISION ) Re
FAY LODER
Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DIRECTION [2004] AATA 1021
Tribunal
Ms Geri Ettinger, Senior Member
Date10 December 2004
Place Sydney
WHEREAS:
1. The Tribunal released a written decision in this matter, which was dated 30 September 2004.
2. It has come to the Tribunal’s attention that there was an error in the decision.
3. The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.
NOW THE TRIBUNAL THEREFORE ORDERS that where the Respondent is referred to as Military Rehabilitation and Compensation Commission throughout the decision, it should read Comcare.
……………………. Ms Geri EttingerSenior Member
CATCHWORDS
Permanent Impairment – section 27 claim lodged but not determined at time of death - effect of section 55(4) of the Safety Rehabilitation and Compensation Act 1988 to preclude payment to deceased – decision under review affirmed.
LEGISLATIVE CONTEXT
Safety Rehabilitation and Compensation Act 1988 ss 24, 27, 55 & 111
Safety Rehabilitation and Compensation Bill 1988 Explanatory Memorandum Clause 50
Acts Interpretation Act 1901 s 15AA
Commonwealth Employees’ Rehabilitation and Compensation Bill 1988, Parliamentary Debates, House of Representatives, 27 April 1988, Second Reading Speech, Minister for Social Security
CASE LAW
Newcastle City Council v GIO General Insurance (1997) 191 CLR 85
Victims Compensation Fund Corporation v Brown and Others (2003) 201 ALR 260
REASONS FOR DECISION
30 September 2004 Ms G Ettinger, Senior Member 1. The decision for review before the Administrative Appeals Tribunal (“the Tribunal”) was that of the Respondent, Comcare, now known as the Military Rehabilitation and Compensation Commission (“MRCC”) dated 23 July 2003 (T41), which affirmed a decision of the Respondent dated 2 June 2003 (T34), to refuse the Applicant Mrs F Loder, wife of the late Allan George Loder, the application for payment of compensation pursuant to section 27 of the Safety Rehabilitation and Compensation Act 1988 (the Act), because although Mr Loder had made a claim for further payment for non-economic loss, he had died before the Respondent had made its determination (section 55(4) of the Act).
2. Mrs Fay Loder, the Applicant, did not attend the Hearing, and was represented by her son, Mr Greg Loder, a public servant by profession. The Respondent was represented by Mr D O’Donovan, instructed by Ms B Eales of the Australian Government Solicitor.
ISSUE BEFORE THE TRIBUNAL
3. The issue before the Tribunal was whether the late Mr Loder is precluded pursuant to section 55(4) of the Safety Rehabilitation and Compensation Act 1988 from eligibility for compensation for non-economic loss pursuant to section 27 of the Act, because although he had lodged the claim prior to his death, it had not yet been determined at the time of his death.
RELEVANT LEGISLATION
4. The relevant legislation is the Safety Rehabilitation and Compensation Act 1988, in particular, sections 24, 27, 55 and 111. As relevant they follow.
5. Section 24 and 27 of the Act are the provisions which are in place for compensation for injuries resulting in permanent impairment.
“24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairments, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purposes of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
…
27 Compensation for non-economic loss
(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2)The amount of compensation is an amount assessed by Comcare under the formula:
[ $15,000 x A] + [$15,000 x B]
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
...”
6. Section 55 of the Act is titled “Survival of Claims” and deals with the preservation of a claim, and the right of a personal representative to make a claim for compensation after the death of the claimant. Section 55(3) refers to section 111 of the Act in relation to amounts payable in respect of a claim under section 55.
“55 Survival of claims
(1)Where a person who is entitled to make a claim for compensation under this Act dies without making a claim, a claim may be made by the person's personal representative.
(2)A claim is not affected by the death of the claimant after the claim was served.
(3)Section 111 applies in relation to an amount payable under a determination made in respect of a claim referred to in this section as if the deceased person had died after the determination was made.
(4)This section does not apply in relation to a claim for compensation under section 27.
111 Provisions applicable on death of beneficiary
(1)Subject to this section, where a determination is made that an amount of compensation is payable under this Act to a person and the person dies before the amount is paid, the amount forms part of the estate of the person.
(2)Subject to subsections (2A), (3), (4) and (5), where a relevant authority holds any money or investments for the benefit of a person under this Act and that person dies, that money or those investments form part of the estate of that person.
(2A)Subsections (3) and (4) do not apply in relation to a relevant authority that is:
(a) a licensed corporation; or
(b)a Comcare subsidiary, in respect of the performance of functions under a contract with a licensed corporation.
(3)Where a person referred to in subsection (1) dies intestate and there is no other person apparently entitled to claim the estate (including that amount of compensation) of that person, subsection (1) does not apply and, subject to subsection (5), if the amount of compensation is held by a relevant authority, it shall pay the amount to the Commonwealth.
(4)Where a person referred to in subsection (2) dies intestate and there is no other person apparently entitled to claim the estate (including that money or those investments) of that person, subsection (2) does not apply and, subject to subsection (5) the relevant authority shall pay the money, or realise the investments and pay the proceeds of the realisation, as the case may be, to the Commonwealth.
(5)Nothing in this section prevents a relevant authority from rendering any provision of this section inoperative in a particular case by making a decision under section 62.”
BACKGROUND
7. The facts and medical evidence in this matter are not in dispute. The late Mr Loder was employed as a Technical Officer by the Department of Defence. On 30 October 1998, he applied for compensation in relation to asbestosis first “noticed” on 26 August 1998 (T4), an injury which occurred while he was employed at Garden Island between the years of 1951 and 1974 (T12).
8. On 9 January 1999, the Respondent accepted liability, up to and including 31 January 2000, for the initial claim of asbestosis (T8). The claim for permanent impairment was decided on 9 November 1999 on the basis that Mr Loder was suffering 22.5 percent whole person impairment in relation to the condition of asbestosis (T15). The amount of $25,746.14 was awarded for compensation for injuries resulting in permanent impairment pursuant to section 24 of the Act, and $26,139.50 was awarded for non-economic loss pursuant to section 27 of the Act, (T15).
9. On 12 December 2002, the Applicant, acting under a Power of Attorney (T3), submitted a further claim for compensation for permanent injury on behalf of Mr Loder, (T18). The Applicant also faxed six pages of a completed, non-economic loss questionnaire to the Respondent on the same day, (T20). At the base of the faxed coversheet, the Applicant had written: “Please note that Allan is extremely weak and very ill” (T19). Mr Loder then died on 9 January 2003, (T21).
10. In a letter regarding the death of the deceased, dated 14 February 2003, the Applicant requested compensation concerning benefits payable under the Act (T26). The Respondent made a determination on the 28 February 2003 which accepted liability pursuant to sections 17 and 18 of the Act (T29). Accordingly, the Applicant was awarded compensation for injuries resulting in death pursuant to section 17(3) of the Act in the amount of $190,595.65, and compensation in respect of funeral expenses pursuant to section 18(2) of the Act in the amount of $4,399.68.
11. The Respondent made a determination, dated 2 June 2003, regarding the Applicant’s further written claim, accepting liability pursuant to section 25(4) of the Act, but refusing liability for further non-economic loss in respect to a worsening of the asbestosis condition (T33 & T34). The Respondent, by virtue of section 55(4) of the Act, denied the Applicant additional compensation for non-economic loss on the basis that the claim had not been determined at the time of the death (T34). This decision was affirmed on 23 July 2003 (T41).
12. On 4 August 2003, the Applicant applied to the Administrative Appeals Tribunal for a review of the decision dated 23 July 2003 (T1).
SUBMISSIONS AND CONCLUSIONS
13. In order to come to the correct and preferable decision regarding whether Mr Loder is eligible for payment pursuant to section 27 of the Act in regard to his claim for non-economic loss in connection with his permanent impairment claim made as a result of a compensable condition of asbestosis, I had to take into account the evidence before me which is summarised above, and was largely undisputed, and the legislation and relevant case law.
applicant’s submissions
14. Mr Loder submitted to the Tribunal that the provisions of section 55 of the Act did not preclude the benefit of compensation for non-economic loss pursuant to section 27 of the Act being awarded to his deceased father. He submitted that section 55(4) of the Act was inconsistent with the purpose of the section as identified in the Second Reading Speech made in the House of Representatives on 27 April 1988 with regard to the introduction of the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 by the Minister for Social Security (“the Second Reading Speech”). Mr Loder stated that the “purpose of the Act was to establish a more equitable and cost effective compensation system; to minimise the human financial cost of work caused injury and disease and to provide adequate compensation and support for long term incapacity of employees.” (Transcript page 9).
15. He also referred me to Clause 50 of the Explanatory Memorandum in relation to the introduction of section 55 of the Act. He submitted that: “If the proper construction of 55 was to be that subsection (4) excludes the determinations of claims for non-economic loss in all cases then I would submit to you that it is at odds with the Explanatory Memorandum to the Act that was provided or has been provided.” He referred to Clause 50, submitting that a claim, (by a person entitled to make a claim for compensation), will not be affected by the death of the claimant. Mr Loder submitted that not to permit a claim for non-economic loss such as his father lodged, to be satisfied, seemed to be contradictory to the purpose of the Act as detailed in the Minister’s Second Reading Speech. He considered that that would not be consistent with the Explanatory Memorandum, “that has no constraints or doesn’t detail constraints.” He submitted that section 55(4) of the Act was wrong in principle, and poorly constructed.
16. Mr Loder submitted that he understood sub-section (3) to be a mechanical device to point people towards section 111 but that sub-section (4) seems to “have come out of the blue”. He said he understood that the heart of non-economic loss went to repairing the damage done to an individual, and not to the successors of that person, but indicated that his father’s case was different, because the (retrospective) damage had been quantified, and the claim lodged before he died. Mr Loder submitted that in his father’s case the claim was for a retrospective loss of amenity and not a prospective loss; the pain and suffering had already occurred at the lodging of the claim, he submitted. He also submitted that a strict reading of section 55(4) of the Act would open up the possibility for the Respondent or other agencies to delay determinations under section 27 until after a claimant’s death.
17. Mr Loder also drew my attention to the case of Newcastle City Council v GIO General Insurance (1997) 191 CLR 85 at 113 in connection with a hypothetical scenario (not unrelated to his father’s case), where a claim might have been lodged, and the person died overnight. He indicated that he understood that “a literal reading of the provisions is one that should take precedence” and referred me to page 113 of Newcastle City Council v GIO General Insurance (supra), which is headed “The effect of the extrinsic material”, submitting that the Court there had said: “… the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.”
respondent’s submissions
18. Mr O’Donovan submitted on behalf of the Respondent that the facts of this case were not in issue. He noted that Mr Loder had made a claim for an increase in his degree of permanent impairment on 12 December 2002, and died on 9 January 2003 before the claim was determined, and that accordingly, a section 27, non-economic loss payment was not payable pursuant to section 55(4) of the Act.
19. Mr O’Donovan explained his understanding of how each of the sub-sections of section 55 of the Act deals with a different scenario, and preserves rights in different ways. He submitted that notwithstanding section 55 of the Act preserves claims, section 55(4) provides an exception in relation to section 27 claims. He claimed that there was no discretion available to the Respondent in that regard, and noted that notwithstanding the decision of the Respondent not being made until 19 May 2003, there was actually no delay in that the Respondent was awaiting medical evidence in support of the claim which was in fact not received until 19 May 2003 (report of Dr Ing dated 19 May 2003, T32).
20. The Respondent accepted that the Act is to provide for compensation, but emphasised again the exception in section 55(4) of the Act, and the statement of the High Court regarding beneficial legislation not being necessarily construed to operate to the benefit of each individual (Victims Compensation Fund Corporation v Brown and Others (2003) 201 ALR 260).
21. At my request, Mr O’Donovan also addressed on the role of the Acts Interpretation Act 1901, (“Acts Interpretation Act”), the Second Reading Speech, and the Explanatory Memorandum (Transcript page 16).
the tribunal’s deliberations
22. I have already stated above that the facts in this case were not in dispute. Mr Loder suffered asbestosis, which was compensable by the Respondent. I am mindful that notwithstanding the claim for further permanent impairment being made on behalf of Mr Loder on 12 December 2002, the claim was not determined until 19 May 2003, when the Respondent received the medical evidence in support of the claim which it considered it required to make the decision (T32). On 19 May 2003, the Respondent accepted liability for further permanent impairment, but stated in its decision, that pursuant to section 55(4), it could not pay the section 27 claim, because “the provisions of sub-section 55(4) specifically exclude claims for non-economic loss under section 27 of the said Act from the survival provisions.” (T42). Mr Loder, had died on 9 January 2003.
23. The only issue before me was the application of section 55 of the Act. I am mindful that in statutory interpretation of legislation, the Tribunal must ordinarily give effect to the ordinary natural meaning of the words, and the context in which they appear, as the primary source of guidance in finding what Parliament intended in any particular legislative enactment. Construction that defeats the purpose of an Act may not be considered, even if the application of a provision appears to result in anomalies or injustices.
24. It is only if the ordinary natural meaning of words in a statute are not entirely clear, that the Tribunal may resort to the Acts Interpretation Act, and materials such as the Explanatory Memorandum and the Second Reading Speech made in connection with that legislation.
25. Section 15AA of the Acts Interpretation Act which follows, mandates that in the interpretation of an Act, the construction which promotes the purpose or object of the underlying legislation, whether expressly stated or not, shall be preferred. As relevant it follows:
“Regard to be had to purpose or object of Act
(1)In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
26. I then turned to consider in detail section 55 of the Act, which is headed “Survival of Claims”. Section 13(3) of the Acts Interpretation Act which follows, states that no marginal note, footnote or endnote to an Act, and, as applicable in this case, no heading to a section of an Act, shall be taken to be part of the Act.
“Headings, schedules, marginal notes, footnotes and endnotes
…
(3)No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act.”
27. Accordingly, the heading may be deemed to be extrinsic material. It is however a guide which exists in determining the purpose or object of section 55 of the Act. The words in the heading to section 55 of the Act contemplate that certain claims survive the death of the claimant, and may be made by the personal representative of the deceased (section 55(1)) of the Act).
28. Pursuant to section 55(2) of the Act, once the claim has been lodged, it is not affected by the death of the claimant, and in fact Mr Loder’s section 24 claim for the worsening of his condition as made on 12 December 2002 on his behalf by his wife, was accepted, and a payment made. Section 55(3) of the Act then makes a reference to section 111 in relation to the amount payable.
29. Section 55(4) is the critical one for consideration in relation to this matter, and seeks to exclude deceased persons from eligibility for section 27 payments. It states that: “This section does not apply in relation to a claim for compensation under section 27”. I have noted Mr Loder’s submission (referring to the heading “Survival of Claims”), that once a claim has been made prior to death, the claim survives the death, because there could otherwise be a propensity to hold determination of claims over until after death, resulting in unfair consequences to the claimant. In that regard, he also gave the example of a person dying overnight after a claim had been made, and before it could be determined. I have noted also the submissions of Mr O’Donovan in that regard.
30. I have considered how section 55(2) of the Act which states: “A claim is not affected by the death of the claimant after the claim was served” sits with section 55(4). Mr O’Donovan submitted that section 55(4) mandated a clear exclusion of eligibility for section 27 claims after death, whether they had been lodged either before or after death. He submitted that this related to the “personal” nature of non-economic loss or “pain and suffering”, and that Parliament had considered that such payment be made to a person who had suffered, and deliberately decided that such payment not be made to the estate of that deceased claimant. He compared it to a similar provision in the NSW workers’ compensation legislation. I was mindful also of Mr Loder’s contrary argument, which was that in Mr Loder’s case, the claim was retrospective, that is for pain and non-economic loss which his father had already suffered, rather than any prospective claim. Mindful that in statutory interpretation of legislation, the Tribunal must ordinarily give effect to the ordinary natural meaning of the words, and the context in which they appear, as the primary source of guidance in finding what Parliament intended in any particular legislative enactment, I preferred Mr O’Donovan’s submissions. I was satisfied that the words of section 55(4) were quite clear.
31. However, before making my decision, finally, I moved to consider the application of the Explanatory Memorandum and the Second Reading Speech.
32. Clause 50 of the Explanatory Memorandum which relates to section 55 of the Act, mentions the right of a person’s legal representative to make a claim if a person who is entitled to make a claim for compensation dies without making a claim. Thus the right of such a person is preserved, and that can be taken to have been the intention of the legislators, but there is no discussion of any of the sub-sections or exceptions, and hence the Explanatory Memorandum does not assist with the interpretation of section 55(4) of the Act.
33. The Minister commenced the Second Reading Speech with reference to a dramatic increase, by 700 percent, between 1976 and 1986, he said, in the cost to the Commonwealth, of workers’ compensation. He continued:
“Accordingly, the Government decided that the compensation Act should be reviewed with the aim of establishing a more equitable and cost-effective compensation system, with particular emphasis on the rehabilitation of injured employees. …
The Bill will minimise the human and financial cost of work-caused injury and disease while at the same time providing adequate compensation and support for long term incapacitated employees.”
34. The Minister then explained to the Parliament the new approach to capped benefits for permanent impairment claims, including a provision for pain and suffering and loss of enjoyment of life. He also acknowledged the families of deceased workers as follows:
“This Government recognises that special provision must be made for the dependants of an employee who has died as a result of a work-related injury.”
35. There was no further mention of the exclusions which arise in section 55(4) of the Act. I did not find either the Explanatory Memorandum or the Second Reading Speech to be of particular assistance, except to affirm the right of the personal representatives of deceased workers with a right to compensation, to be eligible for payment. Accordingly, I moved to consider the literal meaning of the words of the Statute.
36. But before that, I considered that workers’ compensation legislation is beneficial legislation, so that where there is a choice, the construction in favour of the worker is generally exercised. I was mindful also however, of the case of Victims Compensation Fund Corp v Brown (supra), a case where victims of assault claimed compensation, and where the High Court stated:
“Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. … The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl 5, it is not open to apply much liberality of construction. … As Spigelman CJ said: ‘The issue before the Court is the determination of the circumstances in which compensation is payable’ … the Court is not required to give the most expansive possible interpretation of such circumstances. ….”
37. I was satisfied that the purpose of section 55 of the Act is to ensure the right of succession by the personal representatives of injured workers to an entitlement to compensation. I was also satisfied that on the literal interpretation of the words of section 55(4), and the purpose of the Act, Parliament specifically intended to exclude section 27 claims being lodged after the death of the worker, or which had not been determined before the death of the worker. I preferred the submissions of the Respondent on that interpretation, and accordingly affirm the decision under review.
DECISION
38. The decision under review is affirmed.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: Neil Glaser
AssociateDate/s of Hearing 5 July 2004
Date of Decision 30 September 2004
Representative of the Applicant Mr G Loder (son)
Counsel for the Respondent Mr D O’DonovanSolicitor for the Respondent Ms B Eales, Australian Government Solicitor
3
2
0