Pollanen and Comcare
[2004] AATA 134
•12 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 134
ADMINISTRATIVE APPEALS TRIBUNAL }
} Nº V2003/739
GENERAL ADMINISTRATIVE DIVISION }
Re: RAYMOND KEVIN POLLANEN
Applicant
And: COMCARE
Respondent
DECISION
Tribunal: Senior Member J.R. Dwyer
Mr G.D. Friedman, Member
Date: 12 February 2004
Place: Melbourne
Decision:The Tribunal sets aside the decision under review. In substitution, the Tribunal varies the determination made on 16 December 2002 to provide:
Comcare is liable under s 39(1) of the Safety, Rehabilitation and Compensation Act 1988 to pay compensation of $780.00 to Mr Pollanen, being the cost of modification of his motor vehicle, by supply and installation of cruise control.
[sgd] Mrs Joan Dwyer
Senior Member
COMPENSATION – compensable injury to right knee – pain driving long distances – claim for cruise control to be fitted to vehicle under s 39(1) of the Safety, Rehabilitation and Compensation Act 1988 – meaning of “rehabilitation program” – definition includes physiotherapy – no requirement in definition that program be the subject of a determination under s 37(1) of the Safety, Rehabilitation and Compensation Act 1988 – statutory interpretation – preference for ordinary meaning of language – beneficial legislation – compensation for modification to vehicle “reasonably required” by employee – meaning of “reasonably required” – difficulties faced by employee in driving – cruise control reasonably required – decision set aside.
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss4(1), 16(1), 36(1), 37, 39, 109(1)(b), Division 3 Part III.
Comcare v Neil (1993) 114 ALR 461.
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297.
Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCA 1575.
Re Todd and Department of Defence [1993] 18 AAR 329.
Johnston v Commonwealth (1982) 43 ALR 559 at pp 567-8.
Brennan v Comcare (1994) 122 ALR 615 at 621
Comcare v Levitt (1995) ALR 645 at 649.
Whittaker v Comcare (1998) 28 AAR 55 at 67.
Esam v ASP Ship Management (1998) 28 AAR 78 at 81.
Australian Postal Corporation v Forgie and Another (2003) 202 ALR 63.
Re Van Haltren and Telstra Corporation Limited [2001] AATA 743.
Monk v Comcare (1996) 43 ALD 677.Thomas v Ferguson Transformers Proprietary Limited (1979) 1 NSW LR 216.
Words and Phrases
“rehabilitation program”“reasonably required”
REASONS FOR DECISION
12 February 2004 Senior Member J.R. Dwyer
G.D. Friedman, Member
1. This is an application by Mr Pollanen for review of a decision of Comcare made under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) on 16 June 2003. The decision affirmed a determination, made on 16 December 2002, denying liability for the cost of providing and installing cruise control in Mr Pollanen’s motor vehicle.
2. The primary issues that arise concern the interpretation of s 39 of the Act, which provides for the payment of compensation in respect of modification of motor vehicles. Mr Pollanen claims that he “reasonably requires” cruise control to be fitted to his motor vehicle, having regard to the nature of his impairment resulting from “mild right chondromalacia patella of his right knee”, which has been accepted as a compensable injury. Comcare relies on the reference in s 39(1)(b) to a “rehabilitation program” and claims that Mr Pollanen does not satisfy the requirement that he “is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program”. Further, Comcare does not accept that Mr Pollanen “reasonably requires” cruise control. Issues would arise in relation to the definition of “medical treatment” under s 16 of the Act, if the Tribunal concluded that Mr Pollanen was not entitled to cruise control under s 39 of the Act.
3. At the hearing of this matter Mr Pollanen appeared and gave evidence. Mr J. Lenczner of Counsel appeared for Comcare. Evidence for Comcare was given by Dr G. Ramage, consultant occupational physician.
4. The Tribunal received into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T36) and the exhibits tendered during the hearing.
BACKGROUND
5. Mr Pollanen served in the Royal Australian Air Force (“RAAF”) for almost twenty years. He is now employed by the Department of Defence (“the Department”) in the Lands System Division.
6. In 1985, whilst stationed at Laverton RAAF Base in Victoria, Mr Pollanen developed mild right chondromalacia patella of his right knee as a result of compulsory jogging. In a determination dated 11 October 1986 a delegate of the Commissioner for Employees’ Compensation decided that Mr Pollanen was entitled to compensation for mild right chondromalacia patella under the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”).
7. The service medical records show that pain while driving has been a problem since the condition was first reported by Mr Pollanen. On 28 March 1985 there is a reference to “pain (like needle) while driving”. There are further references to pain while driving on 23 April 1985 and 18 March 1986. The records also show that, in 1985 and 1986, Mr Pollanen had physiotherapy treatment when referred for that treatment by the RAAF medical officers. In 1986, a specialist Medical Officer, Orthopaedic Surgeon, at the RAAF Support Unit, Melbourne suggested that Mr Pollanen have cruise control fitted to his vehicle to help with the problem of pain when driving.
8. On 28 October 1986 Mr Pollanen submitted a claim for compensation for the cost of installation of cruise control in the vehicle under s37(3) of the 1971 Act. That claim was rejected on 16 April 1987. Mr Pollanen sought review by this Tribunal. On 7 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 Mr Pollanen’s compensable injury. There was no reference to any requirement relating to a “rehabilitation program” in s 37(3) of the 1971 Act.
9. In 1992 Mr Pollanen purchased a new Nissan Patrol vehicle. On 17 September 1992, he wrote asking how to claim compensation for the cost of installation of cruise control in that vehicle (T16 p24). In an undated letter, a delegate of the Commissioner for Employees’ Compensation advised him that payment had been approved, but that he should forward three quotes. He was told that a cheque would then be forwarded for the approved quote (T17 p25).
10. For reasons which are not clear from the material before us, that did not happen. Mr Pollanen forwarded the three requested quotes in September 1992. A letter was also provided from the Base Medical Flight at Point Cook supporting his claim. That letter was as follows [T19 p27]:
…
SQNLDR Pollanen saw WGCDR Elliott (Orthopaedic Surgeon) on 08NOV93 specialist recommendation was that cruise control although not medically necessary would be the most cost effective method of alleviating the members problems. [T19 p27]
11. Arrangements were made for Mr Pollanen to attend a medical appointment with Dr R. Ward, Sports Medicine Consultant, on 7 January 1994.
12. In a report dated 11 January 1994 (T21), Dr Ward wrote that Mr Pollanen was able to drive a motor vehicle, although long distance driving caused right knee pain. In a further report dated 11 February 1994 (T23), Dr Ward wrote that he did not consider cruise control would be of benefit to Mr Pollanen’s right anterior knee joint pain and therefore was not medically necessary. Dr Ward explained his view, stating that the only way Mr Pollanen could relieve his right anterior knee joint pain was to regularly flex the knee, straighten the knee and in general move the knee through a large arc of movement. He suggested this could be achieved by alighting from the vehicle and exercising. In a report dated 25 February 1994 (T28), Dr Ward repeated his opinion that the fitting of cruise control was not medically necessary. He acknowledged that he had read that Mr Elliott, orthopaedic surgeon, had recommended that cruise control, although not medically necessary, would be the most cost effective method of alleviating Mr Pollanen’s problem.
13. By determination made 16 February 1994, Mr Pollanen was found to be entitled to compensation for a 10 per cent permanent loss of efficient use of his right knee. It was determined that the loss had become permanent before 1 May 1985 (T25 p39).
14. In a determination dated 24 February 1994, liability was denied for the cost of fitting cruise control in Mr Pollanen’s vehicle (T27 p42). Mr Pollanen did not seek reconsideration of that determination.
15. On 10 December 2002, Mr Pollanen wrote to the Compensation Section of the Department of Veterans’ Affairs, again asking for compensation for the cost of installation of cruise control. He explained that he had recently purchased a new Nissan Patrol vehicle and had again begun to experience problems with his knee whilst driving long distances. In a determination dated 16 December 2002 Comcare denied liability for the cost of providing and fitting a cruise control (T30 p45).
16. Mr Pollanen sought reconsideration of that determination on 6 January 2003. Comcare arranged for Mr Pollanen to be examined by Dr Ramage on 30 April 2003. Dr Ramage reported that there were alternatives to the expense of fitting cruise control to Mr Pollanen’s vehicle, such as management of pain by taking regular rest from driving, and physiotherapy or podiatry to improve his patella-femoral tracking in his normal activities of daily living. Dr Ramage wrote that, although fitting cruise control to Mr Pollanen’s motor vehicle would ease the pain that he suffered after 30-60 minutes of driving, that pain was not substantially contributing to a deterioration in his chondromalacia patella (T34 pp52-58).
17. On 16 June 2003, Comcare affirmed the determination denying liability to pay the cost of fitting cruise control (“the reviewable decision”, T35 pp59-61).
18. On 11 July 2003, Mr Pollanen sought review of that decision by the Tribunal.
EVIDENCE AT THE HEARING
19. Mr Pollanen produced two quotes for the fitting of cruise control to his vehicle. One was for $845.00, including GST, and the other was for $780.00.
20. Mr Pollanen explained that he had not pursued his claim for cruise control for the Nissan Patrol vehicle he bought in 1992 because, while he was waiting to have the cruise control approved as compensable, he found he could drive that vehicle even long distances without difficulty. He said that he drove about 200,000km in that vehicle over the years 1992 to 2001. When he purchased a new Nissan Patrol vehicle, in November 2001, he did not expect that he would have any difficulty with that vehicle either. However, he found that the ergonomic features of the vehicle, and in particular the pedal arrangement, were different from that in the earlier vehicle. He cannot straighten his leg while in a driving position, and the positioning of the accelerator pedal and the side wall of the vehicle is such that he cannot comfortably rest his foot off the accelerator pedal. He said he had test driven the vehicle before he purchased it, but he did not notice the problem then. He began to notice it during the first six months of owning the vehicle, and it developed over the next six months. That is why he lodged his claim in December 2002.
21. Mr Pollanen said that, when he is driving in his current vehicle, his knee is always tense, and the position it is in aggravates his knee pain. He said that, once he has pain in the knee from sitting in a fixed position, it does not necessarily disappear, even if he stops driving and has a rest. He said there is a sharp burning pain, which makes the whole leg throb. It affects his concentration on his driving, and lasts for some time after he has stopped driving. Sometimes it even interferes with his sleep.
22. In regard to the suggestion made by Dr Ramage, that he should have regular rests from driving, Mr Pollanen said, first, that his long drives are frequently with a group of friends who travel as a convoy. It is not practical to require the whole group to pull up for him to rest his leg. He said that he travels with this group of friends six or more times a year on camping trips, which include off‑road driving from destinations a considerable distance from Melbourne. Mr Pollanen also said that it is not always convenient to pull up and have a rest while driving on a freeway. He and his wife visit her family in Gippsland on a regular basis. He said even if he is travelling alone, it is not convenient to have to pull up and rest the leg, whenever pain develops after 30 or 60 minutes of driving. Further, even if he does so, it does not necessarily resolve the problem.
23. Mr Pollanen said that he has not seen a doctor about the knee problem since he left the RAAF in January 2000. He said he had 2 or 3 courses of physiotherapy treatment while in the RAAF, when directed to do so by the RAAF medical officers. He said the physiotherapy did not help him significantly, and he has seen no need to have further physiotherapy. As to attending doctors about the knee, Mr Pollanen said that he has been told there is nothing that can be done about the knee. It is not bad enough for it to be appropriate to consider surgery. He has been told that even an arthroscopy could irritate the knee rather than improve the situation. He said that, apart from the pain while driving, he can manage his problem with gentle walking exercise.
24. Mr Pollanen explained that, on two occasions recently, he has driven vehicles with cruise control, and has found that his knee was much more comfortable even on long drives. On one occasion he hired a Mazda sedan in Canberra and drove it to Thredbo, which is about a 2½-hour trip. He said that he had no discomfort. On another occasion, he drove a friend's four‑wheel drive back to Melbourne from Mildura. That vehicle has cruise control, and he found that he did the long drive without difficulty.
25. Mr Pollanen said that he does get pain in his knee even when he is sitting at work for long periods, but at work he can get up and move around or flex the knee. The difficulty with driving is that he cannot take his foot off the accelerator to relieve the pressure on the knee. He said sometimes the pain starts even on the 20‑minute drive to work on the freeway, but more often it is a problem on long drives. He said he was concerned about the safety issue which arises when his focus on his knee pain affects his concentration on driving. He said that, in his opinion, he requires cruise control both because of the quality of life issue in that it would reduce the incidence of pain, and because of the safety issues as to pain interfering with concentration. Mr Pollanen did not agree with Dr Ramage’s description of the pain as mild. He said that the condition can be very painful at times, particularly at the end of the day.
26. In answer to questions from the Tribunal as to why he had not bought a vehicle with cruise control, Mr Pollanen explained that the vehicle he wanted was the diesel fuelled Nissan Patrol. He said that he had that vehicle twice before and he knew the vehicle and found its durability and reliability to be good. He liked the economy of using diesel fuel. He said that vehicle does not come with cruise control but, in any event, it did not occur to him that the replacement Nissan would create a problem for the knee, as the driving position in the last one, which he had driven for nine years, had been satisfactory. He said he had not noticed the effect of the different pedal positioning during his short test drive.
27. Dr Ramage gave evidence over the telephone. He said that he had suggested physiotherapy or podiatry as a way of providing treatment which may possibly prevent Mr Pollanen’s future pain, rather than using cruise control to alleviate the pain. He said that he did not know whether physiotherapy or podiatry would work so as to prevent future pain. He suggested that physiotherapy should be with a specialist sports physiotherapist, but he said that, not being an orthopaedic surgeon, he could not comment on the likely success of that treatment.
28. Dr Ramage said that it would be reasonable to conclude that cruise control would alleviate Mr Pollanen’s knee pain. He accepted that it had done so when it was installed in Mr Pollanen’s vehicle in 1988.
RELEVANT LEGISLATION
29. The primary issues arise under s 39 of the Act. So far as relevant, 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.
30. Mr Lenczner acknowledged that Mr Pollanen has suffered an injury resulting in an impairment and that he therefore satisfies s 39(1)(a) of the Act. However, he submitted that Mr Pollanen did not satisfy s 39(1)(b) of the Act because he had not undertaken or completed a rehabilitation program, nor been assessed as being not capable of undertaking such a program. Mr Lenczner submitted further that the references in s 39 to “a rehabilitation program” must refer to a rehabilitation program as described in Division 3 of Part III of the Act. Part III is headed “Rehabilitation” and Division 3 is headed “Rehabilitation Programs”. Mr Lenczner submitted that ss 36 and 37 in that Division contain certain requirements, such as a determination by a rehabilitation authority that an employee undertake a program, and that the provider must be approved by Comcare. He also referred to s 109(1)(b) of the Act, which requires that a determination under the Act must be in writing.
31. Mr Lenczner referred to ss 36(1) and 37 of the Act which, so far as relevant, 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.
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.
32. In understanding and applying the sections of the Act set out above, it is necessary to bear in mind the definition of the term “rehabilitation program” in s 4(1) of the Act:
rehabilitation program includes medical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.
CONSIDERATION OF THE ISSUES
(i) What is a “rehabilitation program”?
33. Mr Lenczner submitted that Mr Pollanen could not meet the requirements of s 39(1)(b) of the Act, because the physiotherapy he had undertaken as required by RAAF medical officers, was not the subject of a determination under s37(1) of the Act. He submitted that the term “rehabilitation program” should be interpreted as meaning a rehabilitation program which is the subject of a determination under s37(1) of the Act. Mr Lenczner did not refer to the definition of “rehabilitation program” in s 4 of the Act, which is set out in paragraph 32 above.
THE ORDINARY MEANING OF THE WORDS USED IN THE DEFINITION
34. Mr Lenczner submitted that the definition should be read as if included a requirement that, unless the physiotherapy was undertaken as a result of a formal determination under s 37(1), it did not constitute a “rehabilitation program”.. In effect, Mr Lenczner was submitting that the definition should be read as if it included the words highlighted in bold:
rehabilitation program means a program the subject of a determination under section 37(1) of the Act and includes medical, dental, psychiatric and hospital services…
35. Comcare v Neil (1993) 114 ALR 461 is a case where the Federal Court considered the definition of “former employee” in the Act. Comcare conceded that if the definition were to be read literally, Mr Neil was not within the definition, but it submitted that the words “was receiving” in the definition should be read as if they meant “was receiving or entitled to receive”, or as if they meant “was at anytime receiving”. Neaves J said at p467:
This departure from the natural and grammatical meaning of the words “was receiving” was said to be justified not because the words would, if given their natural and grammatical meaning, be ambiguous or uncertain but because a literal reading of the words would give s 131 of the 1988 Act an operation which, it was submitted, the Parliament obviously did not intend.
36. His Honour referred to Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 and quoted passages from the judgments of the Court to the effect that the literal, clear and ordinary meaning of a statutory provision may be departed from, if it is clear that the intention of the legislature has miscarried by reason of a mistake on the part of the draftsman, and that the intention would not be carried into effect unless there were a departure from the literal meaning.
37. Neaves J concluded in that matter at 471:
In my opinion, no sufficient reason has been advanced to justify reading the definition of “former employee” in s123 otherwise than in accordance with its natural and grammatical meaning. In particular, it would not be appropriate, in my view, to conclude that the definition contained a gap and, in effect, to fill that gap by inserting the words “or was entitled to receive” before the reference to weekly payments of compensation under the 1971 Act.
38. There was nothing in this matter which indicated that the intention of the legislature is not appropriately reflected in the definition of “rehabilitation program” in s 4(1) of the Act.
39. In Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCA 1575 at paragraph 43, Katz J said:
While it is accepted that a statutory provision may be given a construction which does not accord with its ordinary meaning when to give it a construction which does accord with its ordinary meaning would lead to harsh consequences (see, generally, McHugh J (with whom Toohey J agreed) in Saraswati v The Queen (1991) 172 CLR 1 at 21-23), the present is not a case in which to give to the relevant provision a construction which accords with its ordinary meaning would lead to harsh consequences; rather, the present is a case in which to give to the relevant provision a construction which does not accord with its ordinary meaning would lead to harsh consequences. That to give to the relevant provision a construction which does not accord with its ordinary meaning would lead to harsh consequences appears to me to be a powerful reason to give to the relevant provision a construction which does accord with its ordinary meaning.
40. We consider that passage is applicable here. Mr Lenczner submitted that we should not give the definition of “rehabilitation program” its ordinary meaning, so that it “includes …physiotherapy”, but should add to it a restrictive requirement that the physiotherapy must have been carried out under a rehabilitation program which is the subject of a determination under s 37 of the Act. To add the suggested requirement to the definition would lead to harsh consequences. As Katz J said, that is a powerful reason to give to the definition a construction which does accord with its ordinary meaning.
41. The harsh consequences of the insertion into the definition of the requirement suggested by Mr Lenczner become apparent when one reviews the history of this matter. Mr Pollanen suffered his injury in compensable circumstances, while a serving member of the Defence Force. As is service practice in that situation, his medical and rehabilitation treatment was by the RAAF medical officers. There is no indication that he did not carry out all of the recommendations of these medical officers. There is no evidence that he has lost any time from work, or sought weekly payments for incapacity in respect of the knee injury. Nor has he sought any compensation by way of payment for reasonable medical treatment under s 16 of the Act since his discharge from the RAAF in January 2001. There is no suggestion in the evidence that Mr Pollanen’s knee condition has deteriorated. In fact the complaints he makes of it being painful when driving are the same as the complaints he was making in 1985 and 1986. It appears that, during the period 1992 to 2001, when Mr Pollanen was driving his second relevant Nissan Patrol vehicle, he did not have pain from driving.
42. Although Dr Ramage in May 2003 (T34 p57) wrote that physiotherapy or podiatry may control Mr Pollanen’s pain, he also wrote that in his opinion there was no need for Mr Pollanen to be assessed by a rehabilitation counsellor (T34 p57).
43. On that evidence, even if Mr Pollanen were to be formally assessed under s 36 of the Act, (contrary to the advice of Dr Ramage), it may well be determined, not that he was not capable of doing a rehabilitation program, but that he does not require a rehabilitation program because he has already had physiotherapy at the time of the injury. If that were so, he would still not satisfy the requirements of s 39(1)(b), if it were construed as contended by Mr Lenczner. Mr Pollanen would then still not be undertaking or have completed a rehabilitation program, nor would he have been assessed as not capable of undertaking such a program. That would clearly be a harsh consequence of adding words to the definition.
44. Further, the interpretation contended for by Comcare, in spite of the fact that it gained some qualified support in Re Todd and Department of Defence [1993] 18 AAR 329, was not explained to Mr Pollanen at the time when he lodged his claim for payment for cruise control on the 10 December 2002. It was not raised until the respondent lodged its Statement of Facts and Contentions in this matter on 29 October 2003. It would be very poor administrative practice, if there were a pre-condition to eligibility for compensation under the Act, not to bring that pre-condition to the attention of an employee as soon as possible. In this matter the claim for payment of the cost of installation of cruise control was rejected on 16 November 2002. That rejection was affirmed on 16 June 2003. Until 29 October 2003, Mr Pollanen continued driving without cruise control, and with pain in his knee, not knowing that the respondent was going to raise the issue that he required assessment under s 36 of the Act for a rehabilitation program, before he would be eligible to obtain modifications of a motor vehicle under s 39 of the Act. Even when the point was raised in the respondent’s Statement of Facts and Contentions, the rehabilitation authority did not arrange for assessment of Mr Pollanen, nor was he advised that he should request such assessment. In our view the reason Mr Pollanen was not advised of the alleged pre-condition, but left waiting for almost a year before being advised that it was necessary to start the rehabilitation program process, was that Comcare itself did not construe the definition of “rehabilitation program” in the manner contended for in this hearing.
CONSTRUCTION OF REMEDIAL OR BENEFICIAL LEGISLATION
45. It is well recognised that the Act is beneficial legislation which should be construed liberally where two alternative constructions are open. That point was made by all the Judges of the High Court in Johnston v Commonwealth (1982) 43 ALR 559 at 567 and 568. Murphy J said at 568:
The respondent urged the adoption of a hair-splitting, over-technical interpretation of the Compensation (Commonwealth Government Employees) Act 1971 which ill accords with the remedial nature of this legislation, and should be rejected.
46. The fact that remedial legislation such as workers’ compensation legislation should be construed liberally is frequently repeated by the Federal Court (see Brennan v Comcare (1994) 122 ALR 615 at 621, Comcare v Levitt (1995) ALR 645 at 649, Whittaker v Comcare (1998) 28 AAR 55 at 67).
47. In Esam v ASP Ship Management (1998) 28 AAR 78 at 81, Tamberlin J raised that issue when rejecting a submission that the words of the Act should be read in a more restrictive way than they themselves required. He said:
The Act is remedial in nature and ought be given a beneficial construction: see Wilson v Wilson’s Tie Works Pty Ltd (1960) 104 CLR 328 at 335; DC Pearce and R S Geddes, Statutory Interpretation in Australia (4th ed), para 9.2 ff. A statute conferring entitlements to workers’ compensation benefits is not to be narrowly construed, nor are its terms to be restricted or denied because of the difficulties that may arise in the wide variety of circumstances involved in its application to particular facts.
48. We can see no reason why the ordinary meaning of the words of the definition of “rehabilitation program” should be restricted or denied.
AUTHORITY OF RE TODD
49. In Re Todd, Senior Member Hotop, as he then was, considered the issue of whether a swimming pool was a compensable item under s 39 of the Act. Mr Lenczner, who was appearing for the Department of Defence (Comcare), submitted that the Tribunal should not consider the request to have a swimming pool accepted as a compensable item under s 39 of the Act. First, because the respondent was not on notice as to that argument and secondly, because s 39 was inapplicable. He submitted, as in this matter, that s 39(1)(b) of the Act was a precondition to liability to pay compensation for items under s 39, and that Mr Todd was not undertaking and had not completed a rehabilitation program, nor had he been assessed as not capable of undertaking such a program under s 39(1)(b).
50. That point had not been raised by the Department in considering Mr Todd’s claim. In fact, the Department, on behalf of Comcare, had already, under s 39 of the Act, accepted liability to pay the cost of modification of Mr Todd’s vehicle by fitting cruise control. That aspect of the decision was not before the Tribunal in Re Todd and is not relevant to this matter. The Department, however, had not accepted that the cost of installing a swimming pool at Mr Todd’s residence was compensable under s 39. Further, the delegate within the Department of Defence had stated, in rejecting the claim:
"Although no assessment of your ability to undertake a rehabilitation program has taken place, sufficient medical evidence exists to indicate that you are not capable of undertaking a rehabilitation program. This claim can therefore be considered in accordance with the provisions of this section (viz s.39) ...".
51. The Tribunal in Re Todd, quoted that passage at paragraph 25, and continued at paragraphs 25 – 27 of the reasons:
25. Mr Lenczner submitted that that statement did not constitute an assessment of Mr Todd’s incapacity to undertake a rehabilitation program for the purpose of s 39(1) of the Act and that such an assessment had to be made in accordance with s 36 of the Act.
26. The Tribunal notes that s.36 of the Act provides for the making of an assessment of an employee's capability of undertaking a rehabilitation program and requires, by subsection (2), that such an assessment be made by a qualified medical practitioner or other suitably qualified person nominated by the rehabilitation authority. Although s.39(1)(b) of the Act does not expressly refer to s.36, the Tribunal is inclined to the view that the assessment referred to in s.39(1)(b) is an assessment conducted pursuant to s.36. There is, however, no clear evidence before the Tribunal as to whether, or not, an assessment of the applicant's capability of undertaking a rehabilitation program has been made pursuant to s.36. The reason for this is, of course, that neither side prepared its case specifically on the basis of s..39 of the Act.
27. Although the statement (quoted in paragraph 25 above) made by the delegate in the determination of 10 November 1992 may be regarded as equivocal, the Tribunal is inclined to accept Mr Lenczner's submission that it is not sufficient to constitute an assessment of the applicant's incapacity to undertake a rehabilitation program for the purpose of s.39(1) of the Act. However, because there is some doubt associated with this particular issue, the Tribunal proposes to consider the substantive issue of the merits of the applicant's claim for compensation for the installation of his swimming pool.
Thus, the Tribunal in Re Todd, giving the matter only brief consideration, expressed tentative acceptance of Mr Lenczner’s submission, but acknowledged that there was some doubt associated with the issue, and did not rely on its tentative view. The Tribunal went on to consider the substantive issue of the merits of the applicant’s claim.
52. While Re Todd gives some support to Mr Lenczner’s submission, it is not authority holding that his submission is correct. Even if it were, this Tribunal would not be bound to follow that decision, although it would of course consider carefully the reasons, if the Tribunal had given reasons, for the view it had adopted..
53. Because the issue in Re Todd was not whether Mr Todd had in fact undertaken a rehabilitation program, but whether he had been assessed as not capable of undertaking a rehabilitation program, the definition of “rehabilitation program” was not relevant and was not referred to by the Tribunal. In this matter, the respondent’s submission requires that the Tribunal refer to the definition of “rehabilitation program” to see whether, as submitted by Comcare, it contains an implied requirement that a rehabilitation program be a program carried out by an employee in accordance with a determination made by a relevant authority under s 39 of the Act. As already stated, the definition does not contain any such express requirement, and the remedial nature of the Act in our view makes it inappropriate to read the ordinary unambiguous words of the definition in a restrictive way, or as if a further qualification were added to the definition.
54. The interpretation contended for by Mr Lenczner is also quite impractical. Why should a person who requires no time off work and no medical treatment, but requests cruise control at a modest cost to reduce pain from a compensable injury, be required to spend time being assessed for a rehabilitation program? We also wonder why Comcare should incur the costs of a rehabilitation assessment which its own medical expert, Dr Ramage, said was unnecessary (T34 p57). The fact that the condition has required no medical treatment for many years suggests that the physiotherapy which Mr Pollanen undertook as directed by RAAF medical officers in the 1980’s was the appropriate rehabilitation for his injury, and that at present he needs no further rehabilitation program.
55. As Mr Pollanen pointed out, the considerations set out in s 37(3) of the Act, to which a rehabilitation authority shall have regard in making a determination that a person undertake a rehabilitation program, do not seem to indicate that, on the facts of this matter, there is any reason for a rehabilitation program to be undertaken. They are as follows:
(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.
56. Mr Pollanen has at all relevant times been in full-time employment. He has not been off work due to his knee condition at all, and there has not been any liability to pay compensation for incapacity in respect of the condition. Nor is there any indication of any deterioration in the condition - pain on driving was a recorded symptom as far back as March 1985 (T36 p62). Thus, it is hard to see how a determination under s 37(1), having regard to the matters in s 37(3), would conclude that Mr Pollanen should undertake a rehabilitation program.
57. Another matter which supports the view that the requirement, in s 39 of the Act, that a person be undertaking or have completed a rehabilitation program does not require that it be a program the subject of a determination under s 37, is that Mr Pollanen has already been granted compensation for permanent impairment under s 24(1) of the Act. A determination to pay compensation for permanent impairment is only to be made having regard to the matters set out in s 24(2) of the Act, which are as follows:
For the purpose 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. (emphasis added).
58. It must have been accepted, when it was determined that Mr Pollanen was entitled to compensation in respect of injury resulting in permanent impairment, that he had undertaken all reasonable rehabilitative treatment for the impairment. Mr Pollanen completed the rehabilitation program considered appropriate by his treating RAAF medical officers nearly 20 years ago and has remained in full time employment. He has not required further medical treatment. It is entirely understandable that Comcare has not required his “capability of undertaking a rehabilitation program” to be assessed, nor determined that he should undertake a further rehabilitation program. It is also entirely understandable that Comcare did not suggest to Mr Pollanen, when he submitted his claim in 2002, that he be assessed or undertake a further rehabilitation program. In these circumstances, it is difficult to understand why Comcare now seeks to argue that it is not liable to pay compensation under s 39(1) because paragraph 39(1)(b) is not satisfied.
59. We have derived assistance in this matter from the reasons for decision of the Full Court of the Federal Court in Australian Postal Corporation v Forgie and Another (2003) 202 ALR 63. In that matter, the Full Court pointed out (at paragraph 64) that it would be inconsistent with the beneficial object of legislation for the compensation of employees, to take a narrow view of the legislation. The Full Court said, (at paragraph 66):
“Moreover, the beneficial nature of merits review is such that when provisions are made for it within a legislative scheme, it is unlikely that the legislature would have intended that they should be construed in a narrow or technical way since to do so would be inconsistent with the generally beneficial nature of merits review. This is particularly the case where the legislation in question is intended to apply in relation to matters concerning a person’s employment in the public sector. As was observed by the then Attorney-General in the second reading speech for the Administrative Appeals Tribunal Bill 1975 (Cth) (House of Representatives, Parliamentary Debates (Hansard), 11 February to 6 March 1975, p 1187):
The intention of the present Bill is to establish a single independent tribunal with the purpose of dealing with appeals against administrative decisions on as wide a basis as possible. [emphasis added]
60. We are satisfied that the words of the definition of “rehabilitation program” in s 4(1) of the Act should be given their ordinary meaning. That means that it is a wide definition, and is not restricted, as the respondent submitted to a rehabilitation program under s 37 of the Act. We consider that, had Parliament intended that the term “rehabilitation program” be limited to programs which are the subject of a determination under s 37(1) of the Act, the definition would have made that clear. Section 37 gives a rehabilitation authority power to determine that an employee undertake a rehabilitation program. Where the rehabilitation program is undertaken as a result of a determination under s37(1), it must comply with s37(1), and if an employee fails to comply “with a rehabilitation program provided for the employee under this section”, s 37(7) and (8) apply to suspend compensation. However, there is nothing in s 37 to say that there may not also be rehabilitation programs, other than those provided under s 37, undertaken as part of an employee’s medical treatment.
61. We find that Mr Pollanen has undertaken physiotherapy, and that accordingly he has completed a rehabilitation program as required by s 39(1) of the Act.
(ii) Does Mr Pollanen ‘reasonably require’ cruise control?
62. Alternatively Mr Lenczner submitted that the modifications to Mr Pollanen’s vehicle, whilst convenient for him, are not “reasonably required” for the purposes of s 39(1) of the Act. He referred to Re Van Haltren and Telstra Corporation Limited [2001] AATA 743 on that point. He also relied on the opinion of Dr Ramage that cruise control was not “medically necessary”.
63. Mr Pollanen said that he requires cruise control because driving for long distances, and sometimes even for the short trip to work, causes him to suffer pain in his right knee. A RAAF orthopaedic surgeon, Mr Elliott, when Mr Pollanen discussed that pain with him in 1986, suggested that he try cruise control. Mr Pollanen did obtain cruise control after the Tribunal decision in March 1988. He gave evidence that it was of assistance to him in the vehicle he had at that time. He then found that it was not required in the vehicle he had from 1992 to 2001, but since he purchased a new vehicle in 2001, his knee has again begun to cause him pain when driving.
64. Dr Ramage, who was called by the respondent, said that he did not doubt that cruise control would alleviate the pain, but he wondered whether physiotherapy or podiatry might not offer another option to limit the pain. He was not confident that either of those modalities would be of assistance. Mr Pollanen said that when he had tried physiotherapy it had not assisted him. That was why Mr Elliot had suggested that he try cruise control.
65. Mr Lenczner relied on the decision of Re Van Haltren where Senior Member Hotop, as he then was, held that evidence that household modifications carried out in Mrs Van Haltren’s kitchen were beneficial or convenient for her, was not sufficient to conclude that they were reasonably required. We find it hard to understand how a modification which will alleviate pain is not reasonably required by an employee with a compensable injury, particularly where the cost of that modification is comparatively small.
66. Mr Lenczner referred to the decision in Re Monk and Comcare (1996) 43 ALD 677, where the concept of reasonably requiring modification to a motor vehicle was considered. He submitted that the words “reasonably requires” assume something more than a convenience or preference. There is no doubt that Mrs Monk, in that case, was much more severely impaired that Mr Pollanen. She had undergone 11 operations over the previous 7 years and was largely confined to a wheelchair. The modifications to a vehicle which she was seeking cost over $17,000.00 in 1996.
67. Deputy President McMahon, in Re Monk, accepted that providing Mrs Monk with a modified vehicle would be beneficial to her mental health. He decided the matter on the basis that the vehicle was a “curative apparatus” and thus within the definition of “medical treatment” in s 4(1) of the Act. He then went on, in paragraph 37, to consider whether provision of the modified motor vehicle was reasonable in the circumstances. He said:
37. It remains to be considered whether provision of the modified motor vehicle is reasonable in the circumstances. On this question all the evidence goes one way. There is no evidence to the contrary. The Applicant is financially unable to acquire the vehicle. The medical and psychological evidence is that provision of the vehicle would be beneficial to the Applicant's mental health. Provision of transport for her wheelchair was recommended by the rehabilitation company. Contrary to the written submissions prepared by the Respondent before all the material evidence was available, the Applicant is hardly mobile without the aid of a wheelchair. Her ability to move around on crutches has diminished considerably in the last two years because of a feeling of insecurity and a fear of falling, causing further pain and damage. I am satisfied that provision of the vehicle is reasonable in the circumstances.
68. Of course that was a much stronger case for payment of the cost of modification of a vehicle than is this matter. However, the amount approved, by way of compensation, was also much greater in Re Monk, than that sought in this matter. The evidence is that Mr Pollanen’s pain on driving is likely to be alleviated if cruise control is fitted to his vehicle. There is no evidence that he is financially unable to pay for the cruise control, but on the other hand, there is equally no evidence indicating that Comcare is financially unable to pay for the cruise control. It is not a large amount of money, and its purpose is to alleviate pain caused by a compensable injury. Mr Pollanen says that he is concerned about safety issues if he drives while focussing on the pain in his knee, and that it is not practical or convenient for him to stop for a 15‑minute rest after 30 to 60 minutes of driving, whether he is driving on his own or in convoy.
69. Mr Pollanen referred to s 39(2) of the Act which sets out matters to which the relevant authority shall have regard in determining the amount of compensation payable in a particular case under s 39(1). Those matters, as set out in paragraph 29 above, include paragraph (c), which is as follows:
(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;
70. Mr Lenczner was instructed to argue that factor 39(2)(c) should only be considered in determining the amount of compensation payable, once a determination had been made to pay compensation under s 39(1) of the Act. That is not the structure of s 39(1) and (2). Sub-section 39(1) refers to payment of compensation of “such an amount as is reasonable” for modification of a motor vehicle. Section 39(2) then provides that the matters to which the relevant authority shall have regard in determining what amount is reasonable include (c), “any difficulties faced by the employee in driving or enjoying freedom and safety of movement in a vehicle used by the employee”. Clearly the structure of s 39 is that the matters specified in s 39(2) are the matters to which regard shall be had in deciding whether there is liability to pay compensation for the cost of modification to a vehicle. Factor (c) is relevant in deciding whether or not an amount of compensation is payable for provision of cruise control as a modification to Mr Pollanen’s vehicle.
71. Mr Pollanen gave evidence that he has difficulty driving because of pain in his knee. He also said that the pain interferes with his enjoyment of driving and that he is worried about his safety as a driver when he is concentrating on the pain in his knee. He said that he finds that cruise control alleviates the problem.
72. The respondent relied on the evidence of Dr Ramage and Dr Ward, both of whom considered that it was not “medically necessary” for cruise control to be fitted to Mr Pollanen’s car. As Dr Ramage said in his report of 6 May 2003 (T34, p57):
Whilst fitting cruise control to Mr Pollanen’s motor vehicle will ease the pain that he suffers after 30-60 minutes of driving, this activity is not substantially contributing to a deterioration in chondromalacia patellae.
73. The Act, however, makes no reference to medical necessity. The entitlement to compensation in s 39(1) applies to vehicle modifications that are “reasonably required by the employee”. To say that cruise control is not “reasonably required” because driving is painful, but does not lead to a deterioration in his underlying condition, is, as Hutley JA (with whom Hope JA agreed) said in Thomas v Ferguson Transformers Proprietary Limited (1979) 1 NSW LR 216, “a pettifogging argument”. His Honour said of a similar argument, at 219-220:
This treatment maintains her state of health and slows, or perhaps prevents, its deterioration. Two attacks were made on this reasoning - first, it was said that this was not curative and, second, it was not apparatus. As to the first, the argument was that to keep an incapacitated person in the same state was not to cure him, and an apparatus which did not cure was not curative. This is a pettifogging argument - the process of dealing with a 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.
74. We find that Mr Pollanen’s need for cruise control is more than a mere preference. We see no reason why someone should have to cope with pain that is due to a compensable injury and that can be easily alleviated. We find that the modification to Mr Pollanen’s vehicle, of installing cruise control, is not merely beneficial or convenient to Mr Pollanen, but is reasonably required to alleviate pain from his compensable injury, and increase safety while driving.
75. We find that Mr Pollanen reasonably requires cruise control in his current vehicle. In view of the modest amount that he is seeking and the fact that he last obtained compensation for such a purpose 16 years ago, we find it reasonable that Comcare should pay the amount of $780.00 for supply and installation of cruise control as a modification to a vehicle under s 39(1) of the Act.
76. Those findings mean that it is not necessary to consider whether provision of cruise control would be supply of an “aid or appliance” or a “curative apparatus” and thus within the definition of “medical treatment” covered by s 16 of the Act.
CONCLUSION
77. The decision under review will be set aside. In substitution, the Tribunal will vary the determination dated 16 December 2002, to provide, under s 39(1) of the Act, that Comcare is liable to pay compensation to Mr Pollanen of $780.00, being the cost of supply and installation of cruise control in his Nissan Patrol Vehicle.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Josephine McKay
AssociateDate/s of Hearing 20 January 2004
Date of Decision 12 February 2004
Representative of Applicant Self-Represented
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Mr L Dobelsky
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