Rushbrook v Alan James Biggs t/as a J Biggs Used Cars
[2014] NSWWCCPD 75
•17 November 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Rushbrook v Alan James Biggs t/as A J Biggs Used Cars [2014] NSWWCCPD 75 | ||
| APPELLANT: | Robert Rushbrook | ||
| RESPONDENT: | Alan James Biggs t/as A J Biggs Used Cars | ||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | ||
| FILE NUMBER: | A1-1860/13 | ||
| ARBITRATOR: | Mr P Sweeney | ||
| DATE OF ARBITRATOR’S DECISION: | 15 August 2014 | ||
| DATE OF APPEAL DECISION: | 17 November 2014 | ||
| SUBJECT MATTER OF DECISION: | Claim for cost of hearing aids; meaning of “any treatment, service or assistance” in s 59A of the Workers Compensation Act 1987 | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Villari Lawyers | |
| Respondent: | Stiles Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determination of 15 August 2014 is confirmed. 2. Each party is to pay his or its own costs of the appeal. | ||
INTRODUCTION
Division 3 of Pt 3 of the Workers Compensation Act 1987 (the 1987 Act) deals with compensation for hospital, medical and rehabilitation expenses. Included in Div 3 of Pt 3 are ss 59, 60 and 60AA.
Section 60(1) provides that if, as a result of an injury received by a worker, it is reasonably necessary that any “medical or related treatment” be given, or any “hospital treatment” be given, or any “ambulance service” or “workplace rehabilitation service” be provided, the worker’s employer is liable to pay the cost of that “treatment or service” and related travel expenses.
Section 59 defines the terms “medical or related treatment”, “hospital treatment”, “ambulance service” and “workplace rehabilitation service”. Section 60AA sets out the circumstances in which an employer will be liable to pay for “domestic assistance” provided for an injured worker.
The Workers Compensation Legislation Amendment Act 2012 introduced s 59A to the 1987 Act. It provides that, subject to certain exceptions, “[c]ompensation is not payable to an injured worker” under Div 3 of Pt 3 of the 1987 Act “in respect of any treatment, service or assistance given or provided more than 12 months after a claim for compensation in respect of the injury was first made, unless weekly payments of compensation are or have been paid or payable to the worker”.
The issue in this appeal is whether the cost of hearing aids come within the expression “any treatment, service or assistance” in s 59A. If they do, as the Arbitrator found, the worker is not entitled to recover the cost of those aids because he does not come within any of the exceptions in that section.
For the reasons explained below, the Arbitrator’s decision is confirmed and the appeal is unsuccessful.
BACKGROUND
The appellant worker, Robert Rushbrook, worked for most of his working life as a panel beater. As a result of that work, he has industrial deafness, a loss of hearing of such a nature as to be caused by a gradual process (s 17 of the 1987 Act).
On 20 December 2013, an Approved Medical Specialist certified that Mr Rushbrook suffers a 13.5 per cent binaural hearing loss. It is agreed that the respondent, Alan Biggs, was the last employer to employ Mr Rushbrook in employment to the nature of which his deafness was due and that Mr Rushbrook was and is entitled to permanent impairment compensation for his loss of hearing.
In addition to claiming permanent impairment compensation, Mr Rushbrook also claimed compensation under s 60 of the 1987 Act for $4,376.15, being the cost of hearing aids. It is not disputed that the need for hearing aids is reasonably necessary as a result of Mr Rushbrook’s industrial deafness.
The respondent disputed liability on the ground that, as more than 12 months had passed since a claim for compensation was first made, Mr Rushbrook’s entitlement to compensation for medical treatment, and therefore for the cost of hearing aids, was extinguished by s 59A.
The parties agreed that, by operation of various transitional and savings provisions, the claim for compensation was deemed to have been made immediately before 1 January 2013. On appeal, the parties also agreed that the amendments introduced by the Workers Compensation Amendment (Existing Claims) Regulation 2014 do not apply to this matter.
Counsel for Mr Rushbrook, Mr McManamey, argued that s 59A does not apply because hearing aids are an “artificial aid” or “curative apparatus” (see s 59(d) and (e)) and are not “treatment, service or assistance” within s 59A(1).
In rejecting that argument, the Arbitrator held (at [46]) that the “treatment, service and assistance” an employer is liable to pay under ss 60 and 60AA is the same treatment, service and assistance referred to in s 59A. He said that the words “any treatment, service or assistance” encompass all the medical treatment for which an employer may be liable under Div 3 of Pt 2 of the 1987 Act and that the treatment for which an employer is liable includes “medical and related treatment”.
The Arbitrator therefore concluded that s 59A applied and, as more than 12 months had passed since the date on which the claim for compensation was made, Mr Rushbrook was not entitled to compensation for the cost of hearing aids.
The Commission issued a Certificate of Determination on 15 August 2014 in the following terms:
“The Commission determines:
1. Leave to the respondent to raise section 59A of the Workers Compensation Act 1987 as a ground of dispute.
2. Determine that compensation is not payable in respect of the cost of hearing aids by operation of that section.
3. Certify the matter as complex and order an uplift of 25 per cent on the costs of each party.”
Mr Rushbrook has appealed the Arbitrator’s finding and determination.
PRELIMINARY
Monetary threshold and fresh evidence
Before dealing with an appeal, the Commission must determine whether the application meets the monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Those thresholds are that there is no appeal under s 352 unless at least $5,000 and at least 20 per cent of the amount awarded are “at issue on appeal”.
In support of the appeal, Mr Rushbrook sought leave to file fresh evidence to the effect that the current cost of the required hearing aids exceeds $5,000. The respondent has not objected to the tendering of that evidence.
The admission of fresh evidence on appeal is governed by s 352(6) of the 1998 Act, which provides:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
It is clear that the evidence now sought to be tendered, which provides up-to-date evidence of the cost of the hearing aids, was not available to Mr Rushbrook, and could not reasonably have been obtained by him, at the time of the arbitration. In these circumstances, the first test in s 352(6) is satisfied and the evidence is admitted.
Once the fresh evidence is admitted, it is clear that the first threshold in s 352(3) (the $5,000 threshold) is satisfied. As the Arbitrator made no award for the payment of compensation, the second threshold in s 352(3) (that at least 20 per cent of the amount awarded must be at issue) does not apply (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Interlocutory
Based on the Arbitrator’s observation that s 59A only imposes a temporal restriction on recovery of medical expenses, counsel for the respondent, Mr Luke Morgan, did not concede that the Arbitrator’s decision was a “final determination of [Mr Rushbrook’s] rights in respect of the cost of hearing aids if claimed”.
Without deciding it, even if s 59A only imposes a temporal restriction on the recovery of medical expenses, the restriction is such that, in the circumstances of the present case, the Arbitrator’s determination has denied Mr Rushbrook the right to compensation for the cost of hearing aids and that decision has finally determined his rights on that issue (Licul v Corney [1976] HCA 6; 180 CLR 213 at 443–4). Therefore, the decision is not interlocutory and leave to appeal is not required.
It follows that, as the monetary thresholds are satisfied, the appeal may proceed as of right.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that s 59A applies to the provision of hearing aids, and
(b) finding that the reference to “treatment, service or assistance” in s 59A has the same meaning as “that treatment or service” in s 60(1).
THE LEGISLATION
Sections 59, 59A, 60 and 60AA of the 1987 Act provide:
“59 Definitions
In this Division:
ambulance service includes any conveyance of an injured worker to or from a medical practitioner or hospital.
chiropractor means a person registered under the Health Practitioner Regulation National Law to practise in the chiropractic profession (other than as a student).
dental prosthetist means a person registered under the Health Practitioner Regulation National Law:
(a)to practise in the dental profession as a dental prosthetist (other than as a student), and
(b)in the dental prosthetists division of that profession.
hospital treatment means treatment (including treatment by way of rehabilitation) at any hospital or at any rehabilitation centre conducted by a hospital and includes:
(a)the maintenance of the worker as a patient at the hospital or rehabilitation centre,
(b)the provision or supply by the hospital, at the hospital or rehabilitation centre, of nursing attendance, medicines, medical or surgical supplies, or other curative apparatus, and
(c)any other ancillary service,
but does not include ambulance service.
medical or related treatment includes:
(a)treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b)therapeutic treatment given by direction of a medical practitioner,
(c)(Repealed)
(d)the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f)care (other than nursing care) of a worker in the worker’s home directed by a medical practitioner having regard to the nature of the worker’s incapacity,
(f1) domestic assistance services,
(g)the modification of a worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity, and
(h)treatment or other thing prescribed by the regulations as medical or related treatment,
but does not include ambulance service, hospital treatment or workplace rehabilitation service.
osteopath means a person registered under the Health Practitioner Regulation National Law to practise in the osteopathy profession (other than as a student).
public hospital means:
(a)a public hospital within the meaning of the Health Services Act 1997 controlled by a local health district or the Crown,
(b)a statutory health corporation or affiliated health organisation within the meaning of the Health Services Act 1997,
(c)(Repealed)
(d)a hospital or other institution (whether in this State or in another State or a Territory of the Commonwealth) that:
(i) is prescribed by the regulations, or
(ii)belongs to a class of hospitals or institutions prescribed by the regulations,
for the purposes of this definition.
workplace rehabilitation service means any service provided as a workplace rehabilitation service by or on behalf of a provider of rehabilitation services approved under section 52 of the 1998 Act.
59A Limit on payment of compensation
(1) Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided more than 12 months after a claim for compensation in respect of the injury was first made, unless weekly payments of compensation are or have been paid or payable to the worker.
(2) If weekly payments of compensation are or have been paid or payable to the worker, compensation is not payable under this Division in respect of any treatment, service or assistance given or provided more than 12 months after the worker ceased to be entitled to weekly payments of compensation.
(3) If a worker becomes entitled to weekly payments of compensation after ceasing to be entitled to compensation under this Division, the worker is once again entitled to compensation under this Division but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.
(4) This section does not apply to a seriously injured worker (as defined in Division 2).
60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
Note. Compensation for domestic assistance is provided for by section 60AA.
(2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are:
(a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and
(b) if the worker is not reasonably able to travel unescorted—the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service.
(2A) The worker’s employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if:
(a)the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the WorkCover Guidelines from the requirement for prior insurer approval), or
(b)the treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or
(c)the treatment or service is not given or provided in accordance with any conditions imposed by the WorkCover Guidelines on the giving or providing of the treatment or service, or
(d)the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or disqualified from practice.
(2B) The worker’s employer is not liable under this section to pay travel expenses related to any treatment or service if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service.
(2C) The WorkCover Guidelines may make provision for or with respect to the following:
(a)establishing rules to be applied in determining whether it is reasonably necessary for a treatment or service to be given or provided,
(b)limiting the kinds of treatment and service (and related travel expenses) that an employer is liable to pay the cost of under this section,
(c)limiting the amount for which an employer is liable to pay under this section for any particular treatment or service,
(d)establishing standard treatment plans for the treatment of particular injuries or classes of injury,
(e)specifying the qualifications or experience that a person requires to be appropriately qualified for the purposes of this section to give or provide a treatment or service to an injured worker (including by providing that a person is not appropriately qualified unless approved or accredited by the Authority).
(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.
(4) The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.
(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute must be referred by the Registrar for assessment under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act, unless the regulations otherwise provide.
60AA Compensation for domestic assistance
(1) If, as a result of an injury received by a worker, it is reasonably necessary that any domestic assistance is provided for an injured worker, the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that assistance if:
(a)a medical practitioner has certified, on the basis of a functional assessment of the worker, that it is reasonably necessary that the assistance be provided and that the necessity for the assistance to be provided arises as a direct result of the injury, and
(b)the assistance would not be provided for the worker but for the injury (because the worker provided the domestic assistance before the injury), and
(c)the injury to the worker has resulted in a degree of permanent impairment of the worker of at least 15% or the assistance is to be provided on a temporary basis as provided by subsection (2), and
(d)the assistance is provided in accordance with a care plan established by the insurer in accordance with the WorkCover Guidelines.
(2) Assistance is provided on a temporary basis if it is provided in accordance with each of the following requirements:
(a)it is provided for not more than 6 hours per week,
(b)it is provided during a period that is not longer than, or during periods that together are not longer than, 3 months,
(c)it is provided pursuant to the requirements of the relevant injury management plan.
(3) Compensation is not payable under this section for gratuitous domestic assistance unless the person who provides the assistance has lost income or forgone employment as a result of providing the assistance.
(4) Compensation payable under this section for gratuitous domestic assistance is payable as if the cost of that assistance were such sum as may be applicable under section 61 (2) in respect of the assistance concerned.
(5) The following requirements apply in respect of payments under this section:
(a)payments are to be made as the costs are incurred or, in the case of gratuitous domestic assistance, as the services are provided,
(b)payments are only to be made if those costs and the provision of the assistance is properly verified (and the WorkCover Guidelines may make provision for how the performance of those services is to be verified),
(c)payments for gratuitous domestic assistance are to be made to the provider of the assistance.
(6) In this section:
gratuitous domestic assistance means domestic assistance provided to an injured worker for which the injured worker has not paid and is not liable to pay.”
THE ARBITRATOR’S DECISION
After setting out the terms of s 59, the Arbitrator said, at [42]–[47]:
“42.The phrase ‘medical and related treatment’ was chosen by the draftsman of the 1987 Act to replace the phrase ‘medical treatment’ in section 10 [of] the Workers Compensation Act 1926. I assume the phrase was chosen to encompass the expanded range of compensation benefits, including care and home modification, available to a worker under Division 3 of Part 2 [sic, 3] of the 1987 Act. It can be seen from a cursory reading of section 59 of the 1987 Act that some of the items included in the definition of ‘medical and related treatment’ are unequivocally medical treatment, while others, including care and home modification, are clearly not medical treatment. Some of the items may or may not be medical treatment.
43.If sections 59 and 59A of the 1987 Act were considered in isolation, it may be arguable that the phrase ‘in respect of any treatment, service or assistance’ in section 59[A] does not encompass all of the items referred to in section 59. It might not, for example, encompass curative apparatus or artificial aids which arguably may not be treatment, service or assistance. Thus, section 59A may not extend to hearing aids or the other artificial aids which were referred to in argument.
44.In the context of Division 3, however, such an argument is not sustainable. Section 59A dictates that compensation is not payable under this Division in respect of any treatment, service or assistance given or provided more than 12 months after a claim in respect of the injury is made (my emphasis). The compensation that is payable ‘under this Division’ is set out in sections 60 and 60AA. Section 60 provides that an employer is liable to pay any medical or related treatment, any hospital treatment, any ambulance service and any workplace rehabilitation service. Section 60AA provides that an employer is liable to pay for domestic assistance.
45.It can be seen that the rights of workers to compensation in Division 3 fall into three broad categories: treatment, service, and assistance. The words treatment, service and assistance are used repeatedly throughout these sections to refer both to a worker’s entitlement to compensation and restrictions upon the entitled [sic, entitlement] to compensation. Section 60(1), for example, after enumerating various types of treatment or service which I set out in the paragraph above states:
‘the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses as specified in subsection (2).’(My italics)
46.In my opinion the treatment, service, and assistance which the employer is liable to pay under sections 60 and 60AA is the same treatment, service and assistance referred to in section 59A. The words ‘any treatment, service or assistance’ encompasses all of the medical treatment for which an employer may be liable under Division 3 of Part 2 [sic, 3] of the 1987 Act. The treatment for which an employer is liable includes ‘medical and related treatment’. Section 59A, therefore, dictates that compensation for any medical and related treatment is not payable more than 12 months after a claim in respect of the injury was first made.
47.On the basis of the above analysis, I determine that the applicant is not entitled to recover the cost of hearing aids from the respondent as 12 months has elapsed since the date on which a claim for the compensation was made.” (emphasis included in original)
SUBMISSIONS
After quoting s 59A(1), Mr McManamey noted that the Division referred to in that subsection is Div 3 of Pt 3 of the 1987 Act. That Division provides for compensation for “medical or related treatment, hospital treatment, ambulance treatment and workplace rehabilitation service”, “domestic assistance” and travel. The terms “medical or related treatment”, “hospital treatment”, “ambulance service” and “workplace rehabilitation service” are all defined in s 59.
Mr McManamey contended that, applying the usual rules of statutory interpretation, the defined term is given the defined meaning. If the legislature chooses to use a different term, it is because it is to be given a different meaning. It follows, so it was submitted, that when the term “treatment, service or assistance” is used in s 59A it is to be given a meaning that is different from the defined term.
A hearing aid does not fall within the usual meaning of treatment or service or assistance and the reference to “this Division” in s 59A does not detract from this conclusion. All it does is to identify the broad subject matter. The compensation that may be affected is that which falls within that Division. The reference does not define the compensation that is excluded by the section. The compensation is only excluded if it is “treatment, service or assistance” and other matters within the Division are not excluded.
Mr McManamey contended that s 60 reads differently. It begins by identifying the subject matter of “medical or related treatment”, “hospital treatment”, “ambulance service”, or “workplace rehabilitation service”. All these terms are defined and the subsequent reference, in s 60(1), to “that treatment or service” and “such treatment or service” is clearly a reference back to the subject matter in sub-s (1).
Mr McManamey argued that s 59A is different because there is no reference to the defined terms and no words that relate the term back to the defined terms. Therefore, the Arbitrator erred when he considered the references to treatment and service in s 59A were a reference to medical and related treatment when there was no basis for reaching that conclusion. If Parliament had meant s 59A to apply to medical and related treatment, it would have used the defined terms.
It was further contended that the Arbitrator failed to observe that the references in s 60 are in terms that clearly relate back to the defined terms. Because of those defined terms, which are not in s 59A, the terms appearing in s 60 do not assist to determine the meaning of the words in s 59A. Therefore, properly interpreted, s 59A only applies to items that fall within the normal meaning of the words “treatment, service or assistance” and hearing aids do not fall within that meaning.
Mr Morgan submitted that, through the use of the term “treatment”, s 59A can be interpreted to refer to both “medical or related treatment” and “hospital treatment”. He said that the word “service” should be interpreted to include both “ambulance service” and “workplace rehabilitation service”.
Mr Morgan argued that a possible reason for the legislature’s choice to use different terms in s 59A, to those in s 60, was to allow the inclusion of “assistance”, noting that Div 3 also provides, in s 60AA, for compensation for “domestic assistance”, which is not defined in s 60.
Mr Morgan said that one may depart from the “plain meaning rule” if the literal interpretation of the term leads to consequences it considers to be absurd or ambiguous. He argued that the interpretation contended for by Mr McManamey would lead to the absurd outcome that the respondent may be liable for the cost of a prosthesis or hearing aid, but not for any of the associated costs, such as fitting the prosthesis or hearing aid, and it is unlikely that the legislature intended such an outcome.
Mr Morgan added that Mr McManamey’s approach requires the reading of s 59A in isolation but the section must be read in the context of Div 3, which renders Mr McManamey’s argument unsupportable.
Last, Mr Morgan said that Mr McManamey’s submission that hearing aids do not fall within the meaning of “treatment, service or assistance” is without foundation and it was open to the Arbitrator to find that the intention of Div 3 was to be, in effect, all-encompassing and inclusive of the provision of such aids.
DISCUSSION AND FINDINGS
In interpreting s 59A, I must apply the principles of statutory construction explained by Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue NT [2009] HCA 41; 239 CLR 27, at [47]:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” (citations omitted)
After quoting the above passage, French CJ and Hayne J explained at [24] in Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378:
“The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28; 194 CLR 355 (Project Blue Sky)], ‘[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’. [Emphasis added.] That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’, and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’.”
Their Honours added (at [25]), again quoting from Project Blue Sky at [78], that “the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have” (emphasis added by French CJ and Hayne J). Their Honours also quoted, with approval, the following passage from Project Blue Sky, also at [78]:
“Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.” (citations omitted)
Considering the words in s 59A, without regard to the context in which they appear, the submission that hearing aids do not fall within the usual meaning of “any treatment, service or assistance” cannot be accepted. The clear grammatical meaning of these words includes hearing aids. Leaving aside “treatment”, which does not seem to cover the provision of hearing aids, the Macquarie Dictionary, 2nd ed, defines “service” as, among other things, “the supplying or supplier of any articles, commodities, activities, etc, required or demanded” and “assistance” as “the act of assisting; help; aid”. Moreover, the section is not restricted to particular treatment, service or assistance but applies to “any” treatment, service or assistance.
Thus, considering the text of the legislation, without regard to the context in which the words appear, or the definitions in s 59, s 59A prevents Mr Rushbrook from recovering compensation for hearing aids. Applying the normal meaning of the words used in s 59A, hearing aids are obviously a “service” to or “assistance” for a person with impaired hearing. In other words, contrary to Mr McManamey’s submission, hearing aids comfortably fall within the normal grammatical meaning of “any treatment, service or assistance”.
However, acknowledging the limitations on the use of dictionary definitions to determine the meaning of legislation (Films and Casting Temple v Malla [2013] NSWCA 377 at [92]: McDougall J (Gleeson JA and Ward JA agreeing)), the better approach is to consider the words in context. This approach leads to the same conclusion, but for different reasons.
Section 59A expressly applies to compensation “under this Division” (Div 3). The compensation payable under Div 3 is identified in ss 59, 60 and 60AA. As the Arbitrator noted, compensation in Div 3 falls into three broad categories: treatment, service and assistance. Section 60(1) provides that an employer is liable to pay for the cost of “that treatment or service” and s 60AA provides that, in the circumstances identified, the employer is liable to pay for the cost of “domestic assistance”.
Mr McManamey’s submission that the reference to “that treatment or service” in s 60 must be a reference back to “medical or related treatment”, which term is defined in s 59, does not assist Mr Rushbrook’s position. That is because the submission is based on the assumption that the term “medical or related treatment” in s 59 must, because it is defined, have a different meaning to “any treatment” (emphasis added) in s 59A.
Given the context in which the words in s 59A appear in the legislation, and the purpose of Div 3 overall, namely, the provision of compensation for “medical, hospital and rehabilitation expenses etc” (see the heading to Div 3), there is no logical reason why that should be so.
Mr McManamey’s interpretation suggests that the words “any treatment, service or assistance” should be given a meaning that is divorced from the context of Div 3 and that the words “medical or related”, in the phrase “medical or related treatment” in s 59, create some special category that is not covered by the phrase “any treatment”. That cannot be correct.
It is completely artificial to suggest that the words “any treatment, service or assistance” in s 59A do not “relate back” to the defined terms. They clearly do. As previously noted, the whole of Div 3 is directed to the payment of compensation for treatment, service or assistance. Therefore, when read in context, the phrase “any treatment” must relate to “medical or related treatment” as defined in s 59 and it does not matter that the words “medical or related” do not appear in s 59A. It follows that, as medical or related treatment includes “artificial aids”, s 59A applies to Mr Rushbrook.
As previously noted, the duty of a court is to give the words of s 59A the meaning that the legislature “is taken to have intended” them to have. The legislature’s intention is a reference to the intention manifested by the words used in the legislation (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [31]). The intention of s 59A, manifested by the words used, is clear. It is to restrict the recovery of compensation under Div 3. Adopting this approach, I am comfortably satisfied that “any treatment” in s 59A includes “medical or related treatment” as defined in s 59.
It will be seen that a contextual interpretation of s 59A gives the words “service” and “assistance” a slightly different meaning to their normal dictionary meaning (noted at [44] above). In context, “service” means “ambulance service” and “workplace rehabilitation service”. “Assistance” means “domestic assistance services” (s 59(f1)) and “domestic assistance” (s 60AA). However, in the present case, nothing turns on that or detracts from the meaning of “any treatment” in s 59A.
Though it is open to consider extrinsic material to aid in the ascertainment of the meaning of a provision (s 34 of the Interpretation Act 1987), it is not open to have recourse to such material for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision is ambiguous or obscure or, in its ordinary meaning, leads to a result that is manifestly absurd or unreasonable (Re Australian Federation of Construction Contractors: Ex parte Billing (1986) 68 ALR 416 at 420).
I do not believe the meaning of the text in s 59A is ambiguous or obscure. However, if it were, the second reading speech confirms the interpretation that flows from the contextual meaning of the words used. In the second reading speech delivered by the Honourable Greg Pearce, Minister for Finance and Services, on 20 June 2012, the Minister said:
“Schedule 4 to the bill concerns medical and related expenses. Medical expenses have been an area of increasing cost to the workers compensation scheme. Under the bill payment of an injured worker’s expenses for medical, hospital and rehabilitation services will be limited to a 12-month period after the claim is made or 12 months after weekly payments cease, whichever is the earlier. However, consistent with the Government's objective of directing workers compensation benefits to the most serious injured workers, workers with a permanent incapacity of more than 30 per cent will not be subject to the new restrictions for medical and related expenses. They will continue to be eligible for benefits for medical and related treatment until retirement age.”
The Minister’s reference to “medical and related expenses”, and to medical expenses having been an area of increasing cost to the workers compensation scheme, strongly points to the words “any treatment” in s 59A as having the same meaning as “medical or related treatment” in s 59. Thus, hearing aids, being “artificial aids”, are “any treatment” and Mr Rushbrook’s claim comes under the terms of s 59A.
CONCLUSION
Reading s 59A in context, and having regard to the purpose of the section, as gleaned from the legislation, the clear meaning of “any treatment” includes medical or related treatment. This construction provides “coherence in the law” (Plaintiff S4-2014 v Minister for Immigration and Border Protection [2014] HCA 34 at [42]) per the Court (French CJ, Hayne, Crennan, Kiefel and Keane JJ). It construes the provisions so they are “consistent with the language and purpose of all the provisions of the statute” (Project Blue Sky at [69]). It follows that the Arbitrator did not err in his conclusion and his decision is confirmed.
DECISION
The Arbitrator’s determination of 15 August 2014 is confirmed.
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
17 November 2014
I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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