Military Rehabilitation & Compensation Commission v Pollanen
[2005] FMCA 957
•8 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MILITARY REHABILITATION & COMPENSATION COMMISSION v POLLANEN | [2005] FMCA 957 |
| ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – whether applicant liable to pay for fitting of cruise control to respondent's vehicle – meaning of rehabilitation program – whether rehabilitation program must be assessed and determined – whether course of physiotherapy sufficient to be rehabilitation program – whether a decision should be substituted without remission to Tribunal. |
| Administrative Appeals Tribunal Act1975 (Cth) Military Rehabilitation and Compensation Act2004 (Cth) Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth) Safety, Rehabilitation and Compensation Act 1988 (Cth) Compensation (Commonwealth Government Employees) Act1971 |
| Comcare v Neil ((1993] 114 ALR 461 Nong v Minister for Immigration and Multicultural Affairs (2000) FCA 1575 Johnston v Commonwealth (1982) 43 ALR 559 at 567, 568 Brennan v Comcare (1994) and 22 ALR 615 Rose v Department of Social Security (1990) 92 ALR 521 at 524 AB v Federal Commissioner of Taxation (1998) 157 ALR 510 |
| Applicant: | MILITARY REHABILITATION & COMPENSATION COMMISSION |
| Respondent: | RAYMOND KEVIN POLLANEN |
| File Number: | MLG 464 of 2004 |
| Judgment of: | Phipps FM |
| Hearing date: | 11 April 2005 |
| Last Submission: | 11 April 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 8 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lenczner |
| Solicitors for the Applicant: | Dibbs Abbott Stillman |
| Counsel for the Respondent: | Mr Carey |
| Solicitors for the Respondent: | Slater & Gordon |
ORDERS
Military Rehabilitation and Compensation Commission be substituted for Comcare as applicant.
The applicant's appeal filed 10 March 2004 is allowed.
The decision of the Administrative Appeals Tribunal made 12 February 2004 is set aside.
In substitution, a decision is made confirming the determination made 16 December 2002 that the applicant is not liable to pay compensation for the provision and/or installation of cruise control for the respondent's Nissan Patrol 4WD.
The applicant pay the respondent's costs to be agreed, and if not agreed to be taxed in accordance with order 62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 464 of 2004
| MILITARY REHABILITATION & COMPENSATION COMMISSION |
Applicant
And
| RAYMOND KEVIN POLLANEN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal pursuant to s.44 of the Administrative Appeals Tribunal Act1975 (Cth) from a decision of the Administrative Appeals Tribunal given on 12 February 2004. The application was filed in the Federal Court of Australia on 10 March 2004 and transferred to the Federal Magistrates Court by order of Crennan J. on 4 May 2004.
The applicant, at the commencement of the proceeding in the Federal Court of Australia was Comcare. Since then, the Military Rehabilitation and Compensation Act2004 (Cth) and Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth) have commenced operation. The Military Rehabilitation and Compensation Commission is now the body liable to pay compensation to the respondent and entitled to pursue this appeal. Counsel for both parties accepted that it should be substituted as applicant.
The application before the Tribunal concerned a review of a decision of the applicant made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act"). The issue in the appeal concerns the interpretation of s.39 of the Act. Specifically, what is meant by the requirement contained in s.39(1)(b) that an employee has completed a rehabilitation program before the applicant is liable to pay for modifications to a motor vehicle pursuant to s.39(1)(d). Does the rehabilitation program have to be one undertaken as a result of an assessment and determination under ss.36 and 37 of the Act, or is it sufficient if the rehabilitation program meets the definition of that term in s.4(1) of the Act? The Tribunal concluded the latter.
The respondent served in the Royal Australian Air Force and was then employed by the Department of Defence. While in the RAAF, he developed mild right chondromalacia patella of his right knee as a result of compulsory jogging. In 1985 and 1986, the respondent had physiotherapy treatment when directed to do so by RAAF medical officers.
In a determination dated 11 October 1986, a delegate of the Commissioner for Employees' Compensation decided that the respondent was entitled to compensation for mild right chondromalacia patella under the Compensation (Commonwealth Government Employees) Act1971 ("the 1971 Act").
Pain while driving was a problem. In 1986, the respondent submitted a claim for compensation for the cost of installation of cruise control in the vehicle under s.37(3) of the 1971 Act. That claim was rejected but on review in March 1988, the Tribunal decided that the Commonwealth was liable to pay compensation of $290.00 for the cost of obtaining and installing cruise control in his vehicle. The Tribunal decided that the cruise control was reasonably required as a result of the respondent's compensable injury. There was no reference to any requirement relating to a "rehabilitation program" in s.37(3) of the 1971 Act.
In 1992, the respondent purchased a new motor vehicle. He sought compensation for the cost of installation of cruise control in that vehicle. His application was eventually refused. He did not pursue a claim because he found that the design of that motor vehicle was such that he was able to drive long distances without difficulty.
In 2001 the respondent again purchased a new motor vehicle. The ergonomic features of the vehicle, in particular the pedal arrangement, were different and the difficulty with his knee while driving came back. In December 2002, he made a claim for the cost of installation of cruise control. On 16 December 2002, the applicant rejected that claim. The respondent sought reconsideration. On 16 June 2003, the applicant affirmed the determination denying liability to pay for the cost of fitting cruise control. On 11 July 2003, the respondent applied to the Tribunal for review of the determination.
The Tribunal set aside the decision under review. In substitution the Tribunal varied the determination made on 16 December 2002 to provide that the applicant was liable under s.39(1) of the Safety, Rehabilitation and Compensation Act to pay compensation to the respondent of $780.00 being the cost of modification of his motor vehicle, by supply and installation of cruise control.
The legislation
The issue principally arises under s.39 of the Act. It provides:
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:
(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.
The applicant’s argument is that the rehabilitation program must have been undertaken under ss.36 and 37 of the Act. They provide:
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.
(2) An assessment shall be made by:
(a) a legally qualified medical practitioner nominated by the rehabilitation authority;
(b) a suitably qualified person (other than a medical practitioner) nominated by the rehabilitation authority; or
(c) a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority.
(3) The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment.
(4) Where an employee refuses or fails, without reasonable excuse, to undergo an examination in accordance with a requirement, or in any way obstructs such an examination, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.
(5) The relevant authority shall pay the cost of conducting any examination of an employee and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose.
(6) In deciding questions arising under subsection (5), a relevant authority shall have regard to:
(a) the means of transport available to the employee for the journey;
(b) the route or routes by which the employee could have travelled; and
(c) the accommodation available to the employee.
(7) Where an employee's right to compensation is suspended under subsection (4), compensation is not payable in respect of the period of the suspension.
(8) Where an examination is carried out, the person or persons who carried out the examination shall give to the rehabilitation authority a written assessment of the employee's capability of undertaking a rehabilitation program, specifying, where appropriate, the kind of program which he or she is capable of undertaking and containing any other information relating to the provision of a rehabilitation program for the employee that the rehabilitation authority may require.
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.
(2) A rehabilitation authority must not make arrangements for the provision of a rehabilitation program to its employees other than by an approved program provider.
(3) In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36(8);
(b) any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee's opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee's attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
(4) The cost of any rehabilitation program provided for an employee under this section shall be paid by the relevant authority in relation to that employee.
The applicant accepts that the respondent has suffered an injury resulting in an impairment. The Tribunal found that cruise control was reasonably required by the respondent having regard to the considerations set out in s.39 of the Act. The only issue is whether he has completed a rehabilitation program within the meaning of s.39(1)(b).
The Tribunal's decision
The Tribunal concluded that the definition of "rehabilitation program" in s.4(1) of the Act should be applied to s.39(1)(b). The definition includes "physiotherapy". Since the respondent had physiotherapy for his injury at the direction of RAAF doctors, the Tribunal said that meant the respondent had completed a rehabilitation program and s.39(1)(b) had been satisfied. The Tribunal considered that adopting this approach applied the ordinary meaning of the word used in the definition.
The Tribunal considered cases where the natural and grammatical meaning of words in a statutory provision may be departed from. Examples were where to do so would give the words an operation which Parliament obviously did not intend (Comcare v Neil [1993] 114 ALR 461, Neaves J. at 467), and where giving the words their ordinary meaning would lead to harsh consequences (Nong v Minister for Immigration and Multicultural Affairs (2000) FCA 1575, Katz J. at [43]).
The Tribunal considered that not to give the words their ordinary meaning, but to have a restrictive requirement that the physiotherapy must have been carried out under a rehabilitation program which was the subject of a determination under s.37 of the Act would produce harsh consequences. The applicant had undertaken the physiotherapy as directed. He had not had any time off work. The evidence was, the Tribunal found, that the respondent did not require a rehabilitation program because he had already had physiotherapy at the time of the injury. There was no point in their being a formal consideration under s.37 whether there should be a determination that he undertake a rehabilitation program because it was not needed.
The Tribunal referred to the principle that beneficial legislation should be construed liberally where alternative constructions are open (Johnston v Commonwealth (1982) 43 ALR 559 at 567, 568, Brennan v Comcare (1994) and 22 ALR 615).
The Tribunal said it could see no reason why the ordinary meaning of the words of the definition of "rehabilitation program" should be restricted.
The parties’ arguments
The submissions for the applicant concentrated on the context of "rehabilitation program" in s.39 of the Act. The section is contained in Part III of the Act which is concerned with rehabilitation. Section 36 provides for assessment of an employee's capability of undertaking a rehabilitation program, examinations to that end, and the provision of assessment reports. Section 37 provides for the determination by a rehabilitation authority that an employee should undertake a rehabilitation program and arrangements for the provision of the rehabilitation program. Section 38 provides for review of a determination made under s.37. Then follows s.39. The benefits which may be provided under s.39, therefore, are to be provided as part of the process of rehabilitation dealt with in part III.
Considered this way, it was submitted the words "rehabilitation program" in s.4(1) the Act determine the possible contents of the program but do not define what the program is. It was submitted that this approach means there was no conflict in the adoption of the broad view of the meaning of "rehabilitation program" in s.4(1).
It was argued that the words "or has been assessed as not capable of undertaking such a program" refer to an assessment under s.36 and so it was not a sensible interpretation to say that "rehabilitation program" was not a rehabilitation program the subject matter of the processes in ss.36 and 37.
For the respondent, it was argued that the Tribunal's decision in applying the interpretation in s.4(1) was correct. The meaning of the words "rehabilitation program" was not limited to those determined under ss.36 and 37 of the Act. Words restricting "rehabilitation program" to an assessment and determination under ss.36 and 37 of the Act was not contained within s.39(1)(b). The Tribunal did not err in pointing out absurd or surprising results that would follow the adoption of the applicant's argument. The Comcare Act is remedial in nature and recognised as such should be given a beneficial interpretation.
In particular, it was argued that s.37 did not establish an exclusive regime for rehabilitation programs. Part III of the Act was not a homogenous grouping of sections dealing with rehabilitation and so the context of Part III did not help in the interpretation. Rather, to the contrary, s.39 of the Act was not a rehabilitation provision, but a compensation provision. It provides benefits or compensation, not rehabilitation. Therefore, its context in terms of subject matter is with the compensation provisions in Part II and not the rehabilitation provisions in Part III.
Discussion
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.
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 s.39(1)(b) is that it is referring to a rehabilitation program undertaken after assessment and determination pursuant to ss.36 and 37 of the Act
This does not ignore the definition of “rehabilitation program" contained in s.4(1) or give it a contrary meaning in s.39(1)(b). The definition is an inclusive definition. It does not use "means" which is an exhaustive definition but the word "includes". "Includes":
is appropriate where it is sought to apply a word in a sense which it does not normally bear, or to make it clear that the word has a meaning about which otherwise some doubt might be felt.
Carter v Broadbeer [1975] 1 WLR 1204 at 1214-15, Viscount Dilhorne
This means that a rehabilitation program referred to in ss.36, 37 and 39 may consist of the types of things described in the definition of "rehabilitation program" in s.4(1), as well as any other things which would normally be considered to be part of a rehabilitation program. Applying the definition in this way means there is no conflict or contradiction. The definition describes the content of the rehabilitation program. The rehabilitation program has to have come about in a particular way, and where it is carried out, can include things described in the definition.
The principle of beneficial construction of remedial legislation does not affect this conclusion. Generally, the principle is invoked when there is some ambiguity (Rose v Department of Social Security (1990) 92 ALR 521 at 524). There is no ambiguity in this case. The ordinary grammatical interpretation is that the "rehabilitation program" is one assessed and determined under ss.36 and 37 of the Act.
The argument for the applicant that s.39 is in the context of the rehabilitation provisions of Part III of the Act is some assistance but does not determine the question. The argument for the respondent that s.39 is not a rehabilitation provision but a compensatory provision does not assist. Section 39 makes provision for alterations to place of residence or work, modifications of a vehicle or articles used by an employee and aids or appliances for the use of an employee. These things might be aids to rehabilitation, they might be compensation or they might be both. The legislation makes the satisfaction of the "rehabilitation program" requirement of s.39(1)(b) one of the matters which must be satisfied before these things can be provided. Therefore, s.39, logically, is placed in part III of the act.
It is correct, as the respondent argues, that s.39(1)(b) does not qualify "rehabilitation program" by reference to either s.36 or s.37 and this is a consideration. It cannot alter the grammatical analysis of the provision, which makes its meaning clear.
Misinterpretation of a statute is an error of law. The appeal must be allowed and the Tribunal's decision set aside. Normally, when an applicant succeeds in an application under s.44 of the Act, the Court ought to remit the application to the Tribunal. But where the facts found by the Tribunal are not in dispute and admit of only one result, the Court may substitute its own decision (AB v Federal Commissioner of Taxation (1998) 157 ALR 510).
The applicant has agreed that it will pay the respondent costs whatever the result of the appeal. The application, of necessity, commenced in the Federal Court. The scale of costs contained in schedule 1 of the Federal Magistrates Court Rules 2001 does not adapt easily to an appeal of this sort. The costs allowed may be too much or too little. The appropriate order is that the applicant pay the respondent's costs to be agreed, or if not agreed, to be taxed in accordance with o.62 of the Federal Court rules.
I certify that the preceding Thirty-one (31) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate:
Date:
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