ROBERTS and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2011] AATA 430
•22 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 430
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4353
GENERAL ADMINISTRATIVE DIVISION ) Re JEFFERY ROBERTS Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date22 June 2011
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
D G Jarvis
... [Signed] ...
Deputy President
CATCHWORDS
COMPENSATION - Commonwealth employee – lump sum compensation recovered under Victims Compensation Act 1996 (NSW) for injuries from assault - claim for cost of future treatment under Safety, Rehabilitation and Compensation Act 1988 (Cth) - held that State compensation must be offset against entitlement under SRC Act, notwithstanding that applicant had no entitlement to compensation for permanent impairment or non-economic loss under SRC Act.
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 119
Victims Support and Rehabilitation Act 1996 (NSW), s 17
Mermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292
Re Carson and Comcare [2011] AATA 103
Re Tiranti-Valenti and Comcare (1996) 45 ALD 478
D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia (6th Edition, 2006) LexisNexis Butterworths
REASONS FOR DECISION
22 June 2011 Deputy President D G Jarvis 1.The applicant, Jeffery Roberts, was previously a member of the RAAF. In 1996, while he was on duty at the RAAF base at Williamstown, he was assaulted by another RAAF member. He suffered serious damage to four teeth and sustained a broken jaw. He was subsequently awarded $7,680 pursuant to the Victims Compensation Act 1996 (NSW) (VC Act) (which has since been renamed the Victims Support and Rehabilitation Act 1996 (NSW)).
2.It is common ground that the award of compensation was the amount of lump sum compensation fixed by the VC Act for Mr Roberts’ compensable injuries, and that the award did not include compensation for medical or dental treatment, which had been provided at no cost pursuant to the terms of his employment by the RAAF.
3.In January 2010, Mr Roberts lodged a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). He claimed lump sum compensation for permanent impairment, weekly benefits and medical expenses (T4, page 19). However, it is agreed that he is not entitled to compensation for permanent impairment under the SRC Act, because the degree of his permanent impairment is less than the 10% threshold referred to in s 24(7)(b) of the SRC Act.
4.It is also common ground that Mr Roberts has not so far incurred any expenses for medical or dental treatment that have not been reimbursed by the RAAF. His claim is for expenses that might be incurred in the future. I understand that similarly, his claim for weekly benefits is a claim for incapacity payments that might become payable if he is incapacitated for work in the future as a result of his injuries, or future treatment for them.
5.A delegate of the respondent Commission determined that the Commission was not liable to pay compensation under the SRC Act because Mr Roberts had already received compensation under the VC Act, and so he was precluded by s 119 of the SRC Act from recovering compensation under that Act.
6.Following a request for reconsideration, a review officer revoked the delegate’s decision and determined instead that liability be accepted for Mr Roberts’ injuries, but the sum of $7,680 awarded pursuant to the VC Act would have to be offset before any benefits could be paid under the SRC Act as compensation for his injuries.
7.Mr Roberts has applied to this Tribunal for review of the decision made by the review officer.
Issues before the Tribunal
8.The issue before the tribunal is whether, on a proper construction of s 119 of the SRC Act, the amount awarded to Mr Roberts under the VC Act should be offset against his entitlement to compensation under the SRC Act in respect of the cost of medical treatment, and loss of earnings in consequence of incapacity for work.
9.The parties also referred briefly the question of whether this tribunal had jurisdiction in circumstances where the claim related to future medical expenses and loss of earnings. Ordinarily this tribunal has no jurisdiction to make declaratory determinations. However, both parties contend that I have jurisdiction in the present circumstances, because the review officer has made a decision within the meaning of s 3(3) of the Administrative Appeals Tribunal Act 1975 (Cth), namely a decision which has the effect of limiting the quantum of compensation which is payable to Mr Roberts under the SRC Act. In cases arising under the predecessor of the SRC Act, the Federal Court has held that the tribunal could lawfully make a determination of future entitlement to compensation for medical expenses. The tribunal accepted that this position also applied in relation to the SRC Act in Re Tiranti-Valenti and Comcare (1996) 45 ALD 478. I agree with respect with the analysis in this case. The reviewable decision relates to the Commission’s liability to pay compensation, a matter that the review officer, and this tribunal standing in the review officer’s shoes, has jurisdiction to determine.
Legislation
10.Section 119 of the SRC Act limits the amount of compensation payable under that Act in circumstances where an employee recovers “State compensation” in respect of an injury. The expression “State compensation” is defined to mean compensation recoverable under a “specified law”, and it is accepted that the VC Act is such a law.
11.The relevant provisions of s 119 are as follows:
“119 Compensation where State compensation payable
(1) If:
(a)an employee recovers State compensation in respect of an injury to the employee or in respect of the loss of, or damage to, property used by the employee; or
(b)State compensation is recovered by, or for the benefit of, a dependant of a deceased employee;
the succeeding provisions of this section have effect.
(2)Subject to this section, the compensation that is payable under this Act to the employee in respect of the injury, loss or damage, or for the benefit of the dependant in respect of the injury that resulted in the death, as the case may be, is so much (if any) of the compensation under this Act that, but for this section, would be so payable as exceeds the amount of State compensation recovered by the employee or by, or for the benefit of, the dependant, as the case may be.
…
(6)Where an employee, or a dependant of an employee, establishes, to the satisfaction of the relevant authority, that the whole or part of the State compensation referred to in subsection (2) recovered by the employee or by, or on behalf of, the dependant, as the case may be, did not relate to an injury, loss or damage, in respect of which compensation is payable under this Act, this section has effect in relation to that employee or that dependant, as the case may be, as if the amount of the State compensation recovered by that employee or that dependant were an amount equal to so much (if any) of the amount of the specified compensation as did relate to an injury, loss or damage, in respect of which compensation is payable under this Act to that employee or that dependant, as the case may be.
(7)In this section:
State compensation means compensation recoverable under a specified law.
specified law means a law of a State or of a Territory that provides for the payment of compensation, other than workers’ compensation, and is declared by the Minister, by legislative instrument, to be a specified law for the purposes of this Act.”
12.The VC Act (as then in force) provides for compensation to be awarded to victims of violence. Section 17 provides for compensation for compensable injuries to be payable in accordance with a schedule of compensable injuries. This schedule is Schedule 1, which lists in column 1 a description of injury to various parts to the anatomy, and in column 2, an amount or range of amounts of compensation for the injury described in column 1. Provision is made in clause 3 of Schedule 1 for the most serious injury to attract the full standard amount of compensation, and for a reducing percentage of the standard amount to be payable for the second and third most serious injury, with no amount for any further injuries.
13.The VC Act (as then in force) provides separately, in s 18, for compensation for financial loss comprising actual expenses, actual loss of earnings and loss of personal effects. The benefits provided for in the VC Act are subject to certain maximum statutory amounts.
Parties’ Contentions
14.Counsel for the applicant, Mr Bourne, contended that on the proper construction of s 119, it was necessary to have regard to the categories of compensation benefits that are provided for in the VC Act, and that in the present case it was incorrect to exclude or limit the applicant’s entitlement to compensation for medical expenses by reference to the amount of State compensation awarded for non-economic loss. He submitted that because Mr Roberts is not claiming to be entitled to compensation under the SRC Act for permanent impairment or non-economic loss, the compensation that he had been awarded under the VC Act, which was lump sum compensation calculated under Schedule 1, should not be offset against his entitlement to compensation for other losses claimable under the SRC Act, such as his present claim for future medical and dental treatment.
15.In support of his contention, Mr Bourne drew attention to the distinction in the VC Act to compensation for compensable injury in s 17 and the provisions of Schedule 1, and the provision for compensation for financial loss provided for in s 18. He also pointed out that the compensation assessor who had assessed Mr Roberts’ entitlement to State compensation had concluded that Mr Roberts would not be entitled to compensation for permanent impairment under the SRC Act, because on any conceivable view of the medical evidence, there was not a whole person impairment of 10% or more, being the threshold for entitlement to compensation for the relevant permanent impairment under s 24(7) of the SRC Act.
16.Mr Bourne submitted specifically that it was necessary for this tribunal to determine the proper interpretation of the words “injury”, “loss” and “damage” in s 119(6) of the SRC Act in the context in which they appear as part of the phrase “injury, loss or damage, in respect of which compensation is payable under this Act”. He submitted that s 119(6) should be read so as not to “prohibit”, or reduce compensation payable pursuant to, State compensation regimes that were enacted with the objective of assisting the restoration of injured victims to full health by complementing or supplementing the strictly limited heads of compensation provided for in the SRC Act. He pointed out that the SRC Act was a beneficial or remedial statute, and so should be interpreted not in a “narrow or pedantic” way, but in such a way that any ambiguity should be resolved in favour of employees, who are intended to benefit under the legislation. He further contended that the evident intention of s 119 is that State compensation is to be treated as the primary compensation where it is available, and that compensation payable under the SRC Act should be regarded as secondary and in the nature of a fall back where State compensation is not available.
17.Counsel for the Commission, Mr Cole, submitted that s 119 does not distinguish between different types of compensation, or heads of damage or categories of payments, whether under the SRC Act or laws providing for State compensation, and that the argument on behalf of Mr Roberts entailed implying words into the provisions of s 119, but this was not necessary in order to make sense of s 119 or to give it application.
Consideration
18.The question of how to interpret s 119 in the circumstances that arise in the present matter does not appear to have arisen for determination by this tribunal or in any court proceedings in the period of nearly 23 years since the SRC Act came into force.
19.Section 119(6) refers to the eventuality that part of the State compensation recovered by an employee does not relate to “an injury, loss or damage, in respect of which compensation is payable under (the SRC) Act.” Those words would clearly apply to a situation where the employee sustained injuries or loss of or damage to property as a result of two events, only one of which was employment related and therefore compensable under the SRC Act. In such circumstances, although the wording of s 119(6) is somewhat obscure, I think its effect is that it is only the amount of State compensation recovered for the event for which compensation is payable under the SRC Act that is taken into account as an offset, and State compensation recovered for the other event is to be disregarded in determining the employee’s rights to compensation under the SRC Act.
20.The inclusion of the expression “injury, loss or damage, in respect of which compensation is payable under (the SRC Act)” (emphasis added) in s 119(6) might on the face of it appear to support Mr Bourne’s argument, because s 27 of the SRC Act refers to non-economic loss. However, the words “loss or damage” in s 119(6) refer back to s 119(1), and that section makes it clear that the words “loss or damage” relate only to property damage sustained by the employee.
21.The interpretation contended for on behalf of the applicant involves implying additional words into s 119(6), or alternatively interpreting the subsection as if additional words were read into it in order to give effect to its intended purpose, so that the reference to “State compensation” would be supplemented (or understood as if it had been supplemented) with the words “of the type recovered”, and the reference to compensation payable under the SRC Act would be supplemented (or understood as if it had been supplemented) with the words “in respect of that type of compensation”, or in each case, words to that effect.
22.The definition of the expression “State compensation” in s 119(7) merely refers to “compensation recoverable” under a specified law, and does not on its terms require any analysis of the kind of compensation recoverable.
23.In s 119(6) reference is made to “compensation … payable under this Act”, (emphasis added) and a similar expression is used in s 119(2). I have reviewed other provisions of the SRC Act where the word “compensation” is used. This review indicates in my view that where Parliament intends to refer to compensation of a particular type, the Act makes that clear, but where the SRC Act refers merely to “compensation under the Act”, it is referring to compensation generally, that is compensation of all or any of the types of compensation provided for in the Act. I refer, for example, to s 14(1) which provides for liability to pay “compensation in accordance with this Act”, and s 54(1), which requires employees to claim “compensation”. I recently decided that s 54 should not be interpreted as requiring a claim for compensation to be made for compensation under a particular section, or particular sections of the SRC Act: see the discussion and authorities referred to in Re Carson and Comcare [2011] AATA 103 at [20]-[26].
24.Similarly, the group of sections in Part IV of the SRC Act, which deal with the relationship between compensation payable under the SRC Act and liabilities arising apart from the SRC Act, generally refer to “compensation under this Act”, and that expression appears to refer to all types of compensation, but where Parliament intends to refer to particular types of compensation, such types of compensation are identified and referred to expressly: see, for example, ss 45(1) and (2) and s 49(5). Further examples where Parliament refers expressly to particular types of compensation are s 23 relating to entitlement to compensation according to an employee’s age, and ss 124(3) and (6), relating to entitlement to compensation under the SRC Act in the case of injuries that occurred prior to the commencement of the SRC Act.
25.There are other matters which I think are relevant to determining the construction of s 119, insofar as that depends on ascertaining the intention of Parliament. The reference to “State compensation” is defined in s 119(7) to mean compensation recoverable under a “specified law”, and that expression in turn is defined to mean a law of a State or of a Territory providing for compensation declared by the Minister to be a specified law for the purposes of the Act. At the time when s 119 was enacted, Parliament presumably would not have known what State or Territory laws would be declared by the Minister to be specified laws, and in particular, would not have known whether those laws would have made provision for types of compensation corresponding to the types of compensation provided for in the SRC Act.
26.At my request, the respondent’s solicitor has provided an analysis of the heads of damages or compensation payable pursuant to a selection of the laws that have been declared by the Minister to be specified laws. The laws so analysed appear to include categories of compensation that are broadly similar to, but do not correspond precisely with, the types of compensation provided for in the SRC Act, and the eligibility for the damages or compensation provided for differs from the requirements of eligibility under the SRC Act. In any event, in retrospect, I do not think it appropriate to refer to the specified laws determined by the Minister after the enactment of s 119 of the SRC Act in order to interpret that section.
27.Further, as Mr Cole submitted, the SRC Act would be difficult to administer from a practical point of view if s 119 were to be interpreted in the manner contended for on behalf of Mr Roberts. That is because it would be necessary in each case to examine in detail the nature of the State compensation received by an employee under whatever State legislation was applicable, and then compare that with the categories of compensation payable under the SRC Act. There would in many cases be the additional difficulty that it would not be possible to determine all of the details or breakdown of State compensation recovered, as would be the case where a matter is settled for a lump sum without a breakdown of that lump sum.
28.In the present case, although superficially the VC Act and the SRC Act appear to provide for corresponding types of compensation, on closer analysis the types of compensation do not correspond. Not all of the schedule lump sum payments in the VC Act are related to the degree of impairment, as is the case under the SRC Act. Actual expenses can be recovered under the VC Act, whereas under the SRC Act, medical expenses are recoverable of such amount as Comcare determines to be appropriate to the medical treatment concerned.
29.It is clear that the intention of s 119 is to prevent employees from “double-dipping”, that is receiving compensation from both the Commonwealth under the SRC Act and a State or Territory under other legislation. However, that purpose can be achieved by adopting a broad interpretation of the references to the compensation recovered under each regime, without decision-makers having to inquire into the categories of compensation provided for in State and Territory legislation, and then comparing those categories with entitlements under the SRC Act.
30.In limited circumstances it is possible to imply words into legislation in order to interpret the legislation so as to give effect to the perceived intention of the legislature, or to interpret legislation as if additional words were read into it. I refer to the authorities helpfully explained in D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia (6th Edition, 2006) LexisNexis Butterworths, at [2.29] and [2.30]. I refer in particular to the three conditions identified by McHugh JA in Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, at 302, where his Honour said:
“First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, 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.”
31.In the present case I consider that the objectives of s 119 can be given effect to by interpreting s 119 so as to compare the amount of State compensation recovered with the amount of compensation payable under the SRC Act, but without analysing the categories of payments making up the compensation recovered or payable from each source. I do not consider that Parliament inadvertently overlooked a necessity to provide for the comparison to extend to types or categories or compensation.
32.On my interpretation, s 119(6) does not apply to the circumstances of the present matter. Mr Roberts has recovered State compensation in respect of the same injury for which he is now claiming entitlement to compensation under the SRC Act. The situation is covered by s 119(2), which in my view was correctly interpreted and applied by the review officer.
Decision
33.The decision under review is affirmed.
I certify that the 33 preceding paragraphs are a true
copy of the reasons for the decision herein
of Deputy President D G Jarvis... [Signed] ...
AssociateDate/s of Hearing 1June 2011
Date of Decision 22 June 2011Date final submissions
received 16 June 2011Counsel for the Applicant Mr T Bourne
Solicitor for the Applicant Bourne Lawyers
Counsel for the Respondent Mr S Cole
Solicitor for the Respondent Australian Government Solicitor
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