Milunovic v Logical Industrial
[2017] VMC 8
•18 May 2017
| IN THE MAGISTRATES' COURT OF VICTORIA |
AT MELBOURNE
G11896759
| ZORAN MILUNOVIC | Plaintiff |
| V | |
| LOGICAL INDUSTRIAL PTY LTD | Defendant |
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MAGISTRATE: | B Wright |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 April 2017 |
DATE OF DECISION: | 18 May 2017 |
CASE MAY BE CITED AS: | Milunovic v Logical Industrial |
MEDIUM NEUTRAL CITATION: | [2017] VMC008 |
REASONS FOR DECISION
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Catchwords:
Workers Compensation – Medical and Like Service – Application for dishwasher appliance – Foreshadowed Referral to Medical Panel - Jurisdiction – Accident Compensation Act 1985 ss 3, 5 “medical and like service” “personal and household service”, 99(1)(a), 99(2)(c), 99(12)(b), 99(13)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Angenent | Zaparas Lawyers |
| For the Defendant | Ms C Spitaleri | Russell Kennedy |
HIS HONOUR:
1 This preliminary application has been listed before me prior to the Defendant referring questions to a medical panel. Briefly, the point for determination by me is whether the provision of a dishwasher appliance is capable of being considered as a “medical and like service” for the purposes of Part IV Division 2B of the Accident Compensation Act 1985 (“the Act”). Both parties agree that that Act is the appropriate legislation in this case. Subject to my ruling, a medical panel will have to determine the adequacy or appropriateness of the provision of a dishwasher, amongst other issues in this case.
2 Mr Milunovic was injured in a fall at work on 12 October 2013 injuring at least his right dominant wrist. Liability was admitted and weekly payments made until these were terminated by a 130 week notice, effective as at 4 June 2016.
3 Meanwhile, his GP on 2 September 2015 requested a number of aids on his behalf consequential upon his work related injury, namely shower hand rails, a mixer tap, a vacuum cleaner and a dishwasher “because he is right hand dominant and requires help to clean, wash and manage his household duties." That request was rejected.
4 Counsel for Logical Industrial initially maintained that there is no "legislative provision" which requires the employer/VWA to pay for the cost or the requested dishwasher. Counsel for Mr Milunovic disagrees in this regard and submits that a dishwasher can be a "personal and household expense" as defined by the Act.
5 Counsel for Logical Industrial now agrees with that proposition. However, despite that concession she submits that a dishwasher cannot be a compensable item in this case because of other legislative provisions.
6 She refers to the objects of the Act set out in s.3 (presumably Reprint 20) and in particular sub-ss.(d), (e) and (h), emphasising the references to ensure compensation is paid in an economically appropriate manner and to minimise the burden on Victorian businesses.
7 She refers to s.99(1), (12) and (13) of the Act.
8 Section 99(1) provides that :-
"If there is caused to a worker an injury which entitles a worker to compensation, the Authority . . . is liable . . . to pay as compensation -
(a) the reasonable costs of the road accident, rescue services, medical, hospital, nursing, personal and household, occupational rehabilitation and ambulance services required because of the injury."
9 The relevant part of s.99(12) is :-
"Nothing in this section renders the Authority . . . liable to pay as compensation the cost of the provision to, or for, a worker of any of the following things unless the provision of a particular thing to the worker is a medical service, or a hospital service, provided as a result of the injury –
(b) food or household or personal items."
10 Section (13) goes along to state that :-
"Sub-section(12) does not apply in the case of a person -
(a) who was under 18 years of age, and who, as a result of his or her injury, is unable to reside at the place at which he or she resided before the injury; or
(b) who is receiving respite care as a result of his or her injury; or
(c) who receives a hospital service as a result of his or her injury and, after being discharged from hospital for the first time after suffering the injury, resides in supported accommodation but only while so residing during the first 18 months after being so discharged."
11 She submits, and opposing Counsel agrees, that a dishwasher cannot be a “medical service” or a “hospital service” within the meaning of the Act, and in particular s.99(12).
12 As Mr Milunovic does not come within the exceptions set out in s.99(13), she submits that the cost of a dishwasher being a "household or personal item" pursuant to s.99(12)(b) cannot then be liable to be paid by the employer/Authority as compensation.
13 She refers to my decision in Taylor v Tehree [2015] VMC 42 and submits:-
"In Taylor v Tehree, Magistrate Wright stated under s.12(b) 'is meant to exclude household items not covered by s.99(1)(a) of the Act as not being, 'required because of the injury'. I believe it is meant to exclude general household items which a worker believes would assist, but which are not required because of the injury'.'"
14 She goes on to say in paras 19 and 20 of her submissions:-
“The defendant contends that this interpretation of the operation of s.99(12) of the Act is incorrect. The language used in section 99(12) of the Act does not refer to the exclusion of items not covered by s.99(1)(a) nor does it refer to items that are not required because of the injury. In fact the section specifically refers to the provision of items provided as a result of the injury."
15 She further submits:-
"The interpretation adopted by Magistrate Wright in Taylor v Tehree would render section 99(12) of the Act superfluous. Pursuant to s.99(1) of the Act only items or services required because of a workplace injury are compensable. There is no liability under the Act to pay for and thus no requirement to exclude the payment of compensation for items not required because of the injury."
16 She then refers to the recent decision of Kaye J in DLZ v TAC [2017] VSC 176. She submits, and I agree, that I am bound by His Honour's decision insofar as it is relevant to these proceedings. I respectfully agree with His Honour's comments at para 38 in that case as to the principles of interpretation in remedial legislation and in particular:-
"Certainly the remedial nature of the legislation does not provide any warrant for the court to rewrite the provisions of the Act or to adopt a construction which is artificially or unduly strained. Insofar that there may be some deficiencies in the legislation, the remedies for those deficiencies must be a remedy for Parliament, not for the court."
17 She submits, and I agree, that s.60(7) of the Transport Accident Act is almost identical to s.99(12) of the Accident Compensation Act, and s.60(8) of the Transport Accident Act is very similar to s.99(13) of the Accident Compensation Act. As stated, she submits that in the present case as a dishwasher is a “household or personal item” within the meaning of s.99(12)(b) and Mr Milunovic does not come within the exceptions set out in s.99(13), then there can be no liability for the dishwasher.
18 Disregarding the now superfluous argument as to whether a dishwasher can be a medical or hospital service, she summarises her submissions based on DLZ v TAC as follows:-
"Based on the observations made by Kaye J, the following things can be deduced about the operation of section 99(12) of the Act:
(i) Section 99(12) of the Act does not create any entitlement to compensation in respect of the items set out in the sub-section unless those items are compensable by virtue of s.99(1)(a). . . .
(iii) If the item in this case, the dishwasher does not constitute a medical or a hospital service then subject to the issue of reasonable cost it would only be payable if it was compensable by virtue of s.99(1)(a) and if the plaintiff's circumstances fell within one of the exceptions in s.99(13) of the Act.”
19 Counsel for Mr Milunovic in his submission focused on the first of her submissions based on the DLZ v TAC case. He submits that the Accident Compensation Act is different to the Transport Accident Act in that s.99(1)(a) of the Act does in fact include a liability for the VWA or authorised insurer to pay as compensation the reasonable costs of "personal and household services" received because of the injury. He emphasises there is no such provision for “personal and household services” in the Transport Accident Act.
20 In view of the opposing Counsel's concession that the dishwasher can be seen as a “personal and household service”, then this effectively ends the argument in his submission. If anything the statement of Kaye J reinforces his client's claim for a dishwasher subject to the other provisions of the Act which will be considered by a medical panel.
21 He also refers to my decision in Taylor v Tehree and submits that there is no need for me to revisit that decision. He also refers to s.99(2) as to the "guidelines" for which approval should be sought before services are provided. He tendered the February 2017 "Equipment and Related Services" policy which is expressed to be such a guideline under the Act.
22 Certainly the contents of the policy are similar to the provisions of such policies dated August 2014 and August 2015 that are referred to in paras 17, 18 and 44-47 amongst other paragraphs in my decision in Taylor v Tehree.
23
I agree with the submissions of counsel for Mr Milunovic. I see no need to revisit my decision in Taylor v Tehree because of the recent decision in
DLZ v TACby Kaye J. I did refer in places to s.99(15) (b) which was in the context of referring to Reprint 15 of the Act, which is the equivalent of s99(12)(b) in Reprint 20. I see no need to repeat the matters set out in my previous decision.
24 I agree that, if anything DLZ v TAC adds further support to my decision. His Honour did state that the entitlement to the items envisaged by s.60(7) of the TAC Act are not liable to be paid if they are not covered by s.60(8) and "are not compensable by virtue of s.60(2)(a)."
25 In the present case, unlike in DLZ v TAC, the relevant items are otherwise compensable as “personal and household services” in s.99(1)(a). Thus, there is a prima facie liability for the VWA/ employer to pay for a dishwasher subject to the other provisions of the Act such as reasonableness etc. as to which I am not being asked to decide and which will be considered by a medical panel.
26 There would appear to be some tension in the Act between general entitlement to “personal and household services” in s.99(1)(a) and the exclusion of household items in s.99(12)(b) as to which I proffered a possible explanation in paras 30-39 of Taylor v Tehree. In any event, workers compensation legislation is remedial and should be interpreted accordingly (see such cases as Dodd v Executive Air Services [1975] VR 668 at pp.679 and 682).
27 I emphasise that I do not say that the Act should be interpreted in support of injured workers as submitted by the plaintiff's counsel in DLZ v TAC. As referred to by Kaye J in DLZ v TAC, any deficiencies in the legislation are matters for Parliament and not for the court. In this case as I said, there are obvious difficulties in interpretation in considering the provisions of s.99(1)(a), the definition of “personal and household services” and s.99(12)(b). There is no definition in the Act of “household or personal items” as referred to in s.99(12)(b).
28 In addition to the objects of the Act cited by counsel for Logical Industrial in this matter, ss 3(d) refers to the need to consider “appropriate” compensation to injured workers. However, that is really a matter for a medical panel.
29 In all the circumstances I find it is open for a medical panel to consider the issue relating to the provision of a dishwasher in this case.
30 I will allow a relevant medical question as to the proposed dishwasher to be included in the medical panel referral in this case.
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