Steins and Comcare (Compensation)
[2019] AATA 803
•6 May 2019
Steins and Comcare (Compensation) [2019] AATA 803 (6 May 2019)
Division:GENERAL DIVISION
File Number(s): 2017/2979
Re:Erica Steins
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mark Hyman, Member
Date:06 May 2019
Place:Canberra
The decision under review is set aside and in substitution the tribunal decides that
(a)Ms Steins reasonably requires a replacement recliner chair; and
(b)Comcare is to pay $1114.00 in compensation as the cost of replacing the chair.
........................................................................
Mark Hyman, Member
Catchwords
COMPENSATION – rehabilitation – chronic migraines, neck strain, major depressive disorder and sleep apnoea - provision of a recliner chair – whether the original employer remains the rehabilitation authority – whether applicant is undertaking, has completed or has been assessed as not capable of undertaking a rehabilitation program – home assessments – whether a recliner chair is an aid or appliance – medical evidence - whether the chair is reasonably required – amount of compensation to be paid – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975, s 37
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 16, 35, 36, 37, 38, 39, 40, 41, 41A, 41B, 41C, 41DSafety, Rehabilitation and Compensation Regulations 2019
Cases
Brennan v Comcare (1994) 122 ALR 615
Comcare v Heffernan [2013] FCA 299
Comcare v Levitt (1995) ALR 645
Georges and Telstra Corporation [2009] AATA 731
Heffernan and Comcare [2015] AATA 655
IW and the City of Perth (1997) 191 CLR 1
Johnston v Commonwealth [1982] HCA 54
Military Rehabilitation and Compensation Commission v Pollanen [2005] FMCA 957
Pollanen and Comcare [2004] AATA 134
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Von Stieglitz and Comcare [2010] AATA 263
Whittaker v Comcare [1998] FCA 1099Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328
Secondary Materials
Concise Oxford Dictionary, 6th ed, 1976
Macquarie Concise Dictionary, 3rd ed, 1998
REASONS FOR DECISION
Mark Hyman, Member
06 May 2019
This decision is about whether Comcare, the respondent, should pay the cost of a replacement for a recliner chair for Ms Erica Steins, the applicant. Ms Steins was injured in a motor vehicle accident in 1992, injuring her neck, while on approved study leave from the Department of Administrative Services. She lodged a claim for workers compensation and Comcare accepted liability. In 1994 Ms Steins submitted a further claim for headaches attributable to the motor vehicle accident; Comcare denied liability and affirmed that decision on reconsideration, but Ms Steins was successful in an appeal to this tribunal, which set aside Comcare’s decision and found Comcare liable in respect of the headaches. Ms Steins left the Commonwealth’s employ in January 2000.
Following an assessment of Ms Steins and her home in 2004, Comcare agreed to provide her with various home help and support services, including a reclining chair. In 2010 Comcare accepted liability for major depressive disorder as a secondary condition to Ms Steins’s chronic headaches and neck pain. On 22 September 2016, following a home assessment report in 2013, Ms Steins sought agreement to and payment for a new recliner chair. Comcare engaged Dr Janaka Seneviratne to examine Ms Steins, and on the basis of his report decided not to pay for a replacement chair. The decision was based on Dr Seneviratne’s opinion that Ms Steins did not reasonably require such a chair in relation to her compensable condition. Ms Steins sought reconsideration of that decision and it was affirmed on 28 March 2017. On 21 May 2017 Ms Steins applied to this tribunal for review of that decision.
The tribunal held a hearing on 8 March 2019. Ms Steins represented herself, with the support of her brother, Mr Robert Steins. Mr Michael Snell of Counsel appeared for Comcare, briefed by Lehmann Snell Lawyers. Ms Steins gave evidence and was cross-examined. Dr Seneviratne appeared by telephone for Comcare as an expert witness. The tribunal had available to it documents (the “T-documents” and supplementary T-documents) provided by Comcare under sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and documents provided by Comcare under section 71 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Other documents provided include:
·a record dated 1 August 2003 of a “treatment case meeting” held on 28 July 2003 between Ms Steins, her parents, and several doctors and other treating health professionals (Exhibit A1);
·a witness statement by Ms Steins dated 25 September 2017 (Exhibit A2);
·a letter dated 19 August 2017 from Dr Brian White, a psychiatrist, to Comcare (Exhibit A3);
·a letter from Dr White to Dr Shannon Craft, Ms Steins’s general practitioner, dated 12 January 2019 (Exhibit A4);
·an open letter dated 12 October 2017 from Mr Donald McDowall, Ms Steins’s chiropractor (Exhibit A5);
·a receipt from Cusacks Furniture Store dated 16 October 2017 (Exhibit A6); and
·a report from Dr Seneviratne, dated 13 February 2018, together with a briefing letter dated 6 March 2018 (Exhibit R1).
At the hearing it appeared that neither side was entirely prepared to make submissions on the effect of paragraph 39(1)(b) of the SRC Act. Accordingly, written submissions were requested from the parties, and both sides made submissions, which have been taken into account in this decision.
ISSUES
The issues before the tribunal are:
·whether Ms Steins has suffered an injury resulting in impairment;
·if so, whether Ms Steins is undertaking, has completed, or has been assessed as incapable of undertaking, a rehabilitation program;
·if so, whether a replacement recliner chair is an aid or appliance reasonably required by Ms Steins;
·if so, what amount of compensation should be paid in respect of the recliner chair.
LEGISLATIVE FRAMEWORK
The provision of aids and appliances in respect of an employee’s compensable condition is provided for in section 39 of the SRC Act. Subsection 39(1) reads as follows:
39 Compensation payable in respect of certain alterations etc.
(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.
The “relevant authority” identified in the subsection as liable to pay compensation is defined in subsection 4(1) as Comcare or a licensed corporation.
The following subsections deal with how the amount of compensation should be determined and paid, where compensation is payable. The relevant parts of subsection 39(2) read as follows:
(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;
…
(e) whether arrangements can be made for hiring the relevant aid or appliance;
…
Section 39 is found in Part III of the SRC Act, entitled “Rehabilitation”. In that Part, section 36 provides for “the rehabilitation authority” to arrange for the assessment of the employee’s capability of undertaking a rehabilitation program, either at the authority’s discretion or at the request of the employee. The section provides details of how such an assessment should be undertaken, and by whom. The presently relevant subsections read as follows:
36 Assessment of capability of undertaking rehabilitation program
(1) Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program.
(2) An assessment shall be made by:
(a) a legally qualified medical practitioner nominated by the rehabilitation authority;
(b) a suitably qualified person (other than a medical practitioner) nominated by the rehabilitation authority; or
(c) a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority.
(3) The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment.
…
(8) Where an examination is carried out, the person or persons who carried out the examination shall give to the rehabilitation authority a written assessment of the employee’s capability of undertaking a rehabilitation program, specifying, where appropriate, the kind of program which he or she is capable of undertaking and containing any other information relating to the provision of a rehabilitation program for the employee that the rehabilitation authority may require.
Section 37 allows a rehabilitation authority to determine that an employee who has suffered an injury resulting in an incapacity to work or an impairment should undertake a rehabilitation program.
Section 4 of the SRC Act defines “rehabilitation authority” to mean, relevantly, the principal officer (defined in turn to mean agency head) of the employing Commonwealth authority. “Rehabilitation program” is defined to include a wide range of possible services, including medical services, physiotherapy, occupational therapy, and physical training and exercise, among others.
CONSIDERATION
It is plain from the extract of the legislation provided above that liability to pay compensation under section 39 only arises where the conditions set in paragraphs (a) and (b) of subsection 39(1) are met: that is, the employee must first suffer an injury resulting in an impairment; and second rehabilitation attempts must be in course, or have been made, or assessed as not possible. The policy intent appears clear: the employee must be sufficiently injured and the cost of aids or appliances (and other assistance) is to be minimised by ensuring that rehabilitation options have been explored and where appropriate given effect before such aids and appliances are provided.
Has Ms Steins suffered an injury resulting in an impairment?
It is not at issue that Ms Steins has suffered an injury resulting in an impairment: Comcare accepted liability for neck strain, and subsequently chronic migraine headaches, major depressive disorder and sleep apnoea. She has been assessed as having a whole person impairment of 55% (T129), with both physical and psychiatric impairments. She therefore meets paragraph 39(1)(a) of the SRC Act.
Is Ms Steins an employee who is undertaking, or has she completed, a rehabilitation program, or has she been assessed as not capable of undertaking such a program?
Is Ms Steins an employee?
Section 5 of the SRC Act defines an employee. Subsection 5(1) defines “employee” to include a person employed by the Commonwealth or a Commonwealth authority. Subsection 5(9) extends that definition to include, where a provision applies to an employee after Comcare has incurred a liability for that employee under the SRC Act, someone who has ceased to be an employee. In Ms Steins’s case, Comcare initially accepted liability in 1992 and Ms Steins ceased to be an employee in 2000. Despite no longer being employed by the Commonwealth beyond that date, she is an “employee” for relevant provisions in the SRC Act; that conclusion is common ground between the parties.
What kind of program is the “rehabilitation program” in paragraph 39(1)(b)?
As a matter of construction, the rehabilitation program referred to in paragraph 39(1)(b) must be the same kind of rehabilitation program referred to in earlier provisions of Part III of the SRC Act. The scheme of this part of the Act is abundantly clear. Section 36 allows a person to be assessed for rehabilitation purposes; section 37 allows a rehabilitation program to be determined for a person; section 38 gives Comcare a limited role confined to the review of certain rehabilitation decisions; section 39 allows the provision of alterations, aids and assistance to injured employees, but only if they have addressed and given effect to their rehabilitation options; section 40 imposes a duty on an employer to find a rehabilitated employee suitable employment; section 41 provides for Comcare to issue guidelines to rehabilitation authorities; and sections 41A, 41B, 41C and 41D are provisions tidying up matters of administrative detail.
Clearly the provisions relating to alterations, aids and appliances in section 39 of the SRC Act fit into the wider picture of rehabilitation established by Part III. The rehabilitation program in the chapeau paragraph of section 39 is a reference to the rehabilitation program the prospects of which have been assessed under section 36 and, which where appropriate, has been made under section 37. Ms Steins did not touch on this point in her submission, but Comcare’s submission is to the same effect as the reasoning above.
A different approach was taken on this issue in Pollanen and Comcare [2004] AATA 134, where the tribunal concluded that the meaning of “rehabilitation program” should not be limited to programs determined under section 37 of the SRC Act; that case was overturned in Military Rehabilitation and Compensation Commission v Pollanen [2005] FMCA 957, in which Phipps FM concluded that the assessment and rehabilitation program referred to in paragraph 39(1)(b) of the SRC Act are the assessment made under section 36 and the program determined under section 37.
What organisation is the “rehabilitation authority” for Ms Steins?
Both parties’ submissions explored at some length the question of which organisation ought to be regarded as the rehabilitation authority. Ms Steins pointed out that her association with her previous employer (then the Department of Administrative Services, subsequently the Department of Finance) is long over. In her view, it would be unrealistic to expect a continuing relationship with her past employer, and the logical path is for Comcare to take over this role, as the body with a continuing relationship with the injured employee.
Comcare’s submission argues that the employing agency remains the rehabilitation authority, noting that there is nothing in the Act that suggests to the contrary. Comcare has not identified any authorities that confirm that conclusion specifically, but notes Fleming and Comcare [2004] AATA 1016, Daff and Comcare [2010] AATA 732 and Cook and Comcare [2017] AATA 227 as cases where the decision rested on that point without the tribunal setting out explicitly to decide it or calling it into question. In all three cases the applicant had left the employ of the Commonwealth by the time the question of rehabilitation arose, and in the first two cases that had occurred many years before the case was considered by the tribunal.
It is again the scheme of Part III of the SRC Act, and indeed the broader scheme of the Act as a whole, that is the surest guide on this question. The SRC Act sets up Comcare (and licensed corporations) in one set of roles: as insurer, responsible for paying compensation and for managing the compensatory aspects of an injured worker’s case; but it sets up the rehabilitation authority – that is (in general) the employer – as responsible for rehabilitation, as it is the employer that is best positioned to get an injured employee rehabilitated and re-engaged in the workforce. Comcare is given a very limited role in Part III: to review decisions made under sections 36 and 37, (presumably so that if those decisions come before this tribunal it is Comcare rather than the employer that will be the respondent, thus leaving action in the nature of litigation resting with Comcare); to provide alterations and assistance under section 39; and to issue guidelines to rehabilitation authorities under section 41.
What this scheme makes clear is that the SRC Act gives quite separate functions to insurer and employer: the insurer takes care of compensation, including assessing claims and making payments; the employer has responsibilities to rehabilitate the employee (sections 36 and 37) and to reintegrate the employee back into the workforce (section 40). I note, too, that subsection 4(1) of the SRC Act defines “rehabilitation authority” as one of four possibilities, as follows:
rehabilitation authority, in relation to an employee, means:
(a) where the employee is employed by an exempt authority—Comcare; and
(b) where the employee is employed by a licensed authority—the principal officer of that authority; and
(ba) if the employee is employed by a licensed corporation—the principal officer of that corporation; and
(c) if the employee is employed by an Entity or a Commonwealth authority, other than an exempt authority—the principal officer of the Entity or the Commonwealth authority in which the employee is employed.
This definition sets out to take account of the various arrangements under which an employee might be employed (section 35 allows the Minister to declare an entity or Commonwealth authority an exempt authority, which means that the rehabilitation authority responsibilities do fall on Comcare in that instance; there is no suggestion that such a declaration has occurred in the present matter). But it would have been a simple matter, if the intention were that the responsibilities of the rehabilitation authority were to transfer to Comcare once the employee had left the Commonwealth’s service, for the definition to so specify.
The above understanding is supported by the drafting of section 31 of the Safety, Rehabilitation and Compensation Regulations 2019, made under the SRC Act. The section reads as follows:
31 Performance of employer functions by former licensed corporation following revocation of licence
(1) If Comcare considers that it would be appropriate to do so, Comcare may arrange for the employer functions of a former licensed corporation in relation to affected employees to be performed by a person:
(a) whom Comcare considers suitable to perform those functions; and
(b) who is willing to enter into an arrangement with Comcare for the performance of the functions.
(2) For the purposes of this section:
affected employee means an employee of a former licensed corporation to whom a liability mentioned in paragraph 27(2)(b) relates.
employer functions, in relation to an affected employee, means either or both of the following:
(a) acting as the rehabilitation authority for the affected employee;
(b) acting as the relevant employer, within the meaning of subsection 40(2) of the Act, of the affected employee.
While the meaning of a statute cannot be derived from delegated legislated legislation made under it, the passage above is certainly consistent with the separate roles outlined above for insurer and employer.
On the basis of the considerations outlined above, my conclusion is that the Department of Finance inherited the responsibility of acting as the rehabilitation authority for Ms Steins and retains that responsibility to the present day.
Ms Steins’s rehabilitation history
It is the evidence of the Department of Finance that the records of the Department do not disclose any request by Ms Steins for a rehabilitation program under section 36 of the SRC Act, nor any assessment initiated by the Department, nor any determination by the Department of a rehabilitation program under section 37 of the SRC Act (email dated 13 February 2018 from Ms Sarah Cheyne, Rehabilitation Case Manager, included among the section 71 documents). Comcare accordingly contended that Ms Steins has not been assessed by her rehabilitation authority, nor has a rehabilitation program been determined for her at any time.
Ms Steins put forward three contentions taking issue with that conclusion: first, she suggested that it was implied in the assessment and decision relating to invalidity retirement that she was incapable of rehabilitation; second, she was assessed by a group of doctors and other health professionals in 2003 in the context of future management and rehabilitation, and that assessment, in her contention, met the requirements of paragraph 39(1)(b) of the SRC Act; third, Comcare not only provided her previous recliner chair under section 39 of the SRC Act, but also a replacement mattress and extensive modifications to her bathroom (evidenced by annexures to her submission), implying that Comcare has previously accepted that the threshold requirements of section 39 have been met; any resiling from that now, in Ms Steins’s contention, must reflect a change in Comcare’s policy.
The first of Ms Steins’s arguments is plain enough and not unreasonable. If a person has been found incapable of continuing in employment, is it not reasonable to infer that the person is incapable of rehabilitation? Logical as that argument is, unfortunately for Ms Stein, that is not how the statute has been drafted. Paragraph 39(1)(b) of the SRC Act refers to an assessment (which, as discussed above, must be made under section 36) and a rehabilitation program (which must be determined under section 37). The determination that Ms Steins should be retired on invalidity grounds required a conclusion that she was unfit for work, but that assessment, so far as the evidence discloses, was made by Dr K Boyarati at the request of Comsuper, the superannuation manager for Ms Steins (that report is dated 21 December 1998 and is included among the section 71 documents). The assessment was, therefore, not “arranged by” the rehabilitation authority and therefore does not meet the terms of subsection 36(1) (that assessment, in other respects, appears to have met the requirements of section 36, in that Dr Boyarati answered “no” to the question “Could treatment or a rehabilitation program prevent the employee’s total and permanent incapacity?”).
The 2003 assessment to which Ms Steins refers does not assist her. Whatever its merits and completeness as an assessment, it was not made at the request of the rehabilitation authority, and did not meet the requirements of section 36 of the SRC Act. As for the provision of the previous recliner chair, the mattress, and the bathroom alterations, if Comcare paid compensation for those measures without ensuring that Ms Steins met the threshold requirements of section 39 of the SRC Act, then Comcare erred in so doing, and their change in position now is not a change in policy but a recognition of the requirements of Comcare’s governing statute.
But there is a large body of medical evidence included among the T-documents, and that suggests that it would be premature to conclude that Ms Steins has never been assessed for rehabilitation purposes, as the Department of Finance somewhat blandly asserts. In September 1994, for example, the Department of Administrative Services referred Ms Steins to a Commonwealth Medical Officer for assessment. Dr K M Mackay made the assessment, and submitted it on 23 September 1994 to the Department (T16). In the form accompanying his report (titled “Health Assessment Report – Non-Compensation Cases”) Dr Mackay responded to a series of standard questions, among which question G reads “What reasonable action, including further treatment, physical or work-based rehabilitation, retraining or redeployment can be taken by the department or the officer (as appropriate) to aid the officer’s return to work?”. Dr Mackay’s response is “None at this stage”.
It appears to me that this report meets the requirements of section 36 and paragraph 39(1)(b) of the SRC Act. The rehabilitation authority (the Department of Administrative Services) has sent Ms Steins to a legally qualified medical practitioner, and I have no reason to assume that it was not the Department’s choice to go to a Commonwealth Medical Officer (no referral letter is included in the T-documents). The examination has included an assessment of the capacity of Ms Steins to undertake rehabilitation, and the response has been that she would not benefit from rehabilitation, at least at that time. The requirements of subsections 36(1), (2), (3) and (8) are all apparently met.
Two questions remain to be answered: first, is it relevant that the form reads “non-compensation cases”? I note that Comcare submitted that previous assessments made of Ms Steins’s capacity for rehabilitation were made for different purposes, for example under the Public Service Act 1999 (and its predecessors) to determine her fitness for duty. Comcare contended that they could not, therefore, constitute assessments under section 36 of the SRC Act. The second question to be answered is whether it is disqualifying that the 1994 assessment was clearly about Ms Steins’s state at that time and not about her longer-term rehabilitation prospects.
I do not think Ms Stein is disqualified on either ground. There is nothing in sections 36 or 39 that requires that the assessment of an employee’s rehabilitation potential be made as part of a compensation claim. Clearly, in practice, such an assessment could occur at any time and for a variety of purposes (including for fitness-for-duty purposes) and might often happen before an injured employee has lodged a compensation claim, or while such a claim is being determined. The point is that when Comcare comes to consider whether to pay compensation under section 39 of the SRC Act, the question of rehabilitation has already been decided.
Regarding the temporary or longer-term nature of a rehabilitation decision, again the statute is silent on this point. Given the way in which the SRC Act provides for the evolving nature of employees’ claims as their medical circumstances change with time, I can see no basis for assuming that an assessment under section 36 must take a particular timescale into account, given that the section does not specify as much. The beneficial and remedial nature of the SRC Act also encourages a generous and accommodating reading of the provision: see Johnston v Commonwealth [1982] HCA 54; Brennan v Comcare (1994) 122 ALR 615 at 621, Comcare v Levitt (1995) 131 ALR 645 at 649, Whittaker v Comcare [1998] FCA 1099; (1998) 28 AAR 55 at 67; Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335; IW and the City of Perth (1997) 191 CLR 1 at 78. That a point in time conclusion is sufficient also aligns with the “progressive and evolving decision-making” that characterises the SRC Act (Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 (Conti J at [57]).
I note that another report, that of Dr Boyapati at T84, was made to the Department of Finance (or its predecessor), and would itself appear to meet the requirements of Section 36 of the SRC Act.
In any case, it is not as if Ms Steins was in practice suitable for rehabilitation but obtained a fortuitous opinion to the contrary from a single doctor. There are numerous reports included among the T-documents attesting to the incapacity of Ms Steins to undertake rehabilitation: see for example T95 (Dr Boyapati, undated but apparently from 1999); T162 (this is the report of the 2003 assessment referred to by Ms Steins, dated 9 August 2003); T167 (assessment by exercise physiologist Ms Melissa James, dated 6 May 2004). These reports may not abide by the strict requirements of section 36 of the SRC Act, but they certainly confirm that Ms Steins was not capable of rehabilitation.
My conclusion, therefore, is that the threshold requirements of section 36 are met: Ms Steins has suffered an injury resulting in an impairment; and she has been assessed at her employer’s direction as not being capable of undertaking a rehabilitation program. Comcare is liable to pay compensation for aids or appliances reasonably required by her, having regard to her impairments.
Does Ms Steins reasonably require a replacement recliner chair under section 39?
Perhaps the starting point to this part of the decision is to note that, given the reasoning above, the provision of the original chair, the mattress and the bathroom modifications appears to have been within the parameters of the SRC Act provided those items and measures were themselves reasonably required. The question remains, however, whether provision of a replacement chair, on the evidence now available, meets that test.
The home assessments
Comcare commissioned an assessment of Ms Steins’s house by Access Occupational Therapy. A report of that assessment (T170), dated 25 November 2004, was provided by an occupational therapist, Ms Diana Chamberlain. Ms Chamberlain recommended home help services for two hours per week; a recliner chair with a high back for head support; and an assistance chair for showering.
Years later, Comcare commissioned a further assessment by Healthe Work. The assessment was undertaken on 9 April 2013 by Ms Maryanne Clement, an occupational therapist. The report, dated 16 April 2013 (T242), recommended that Ms Steins be provided with a new mattress; that the bathroom be modified to address safety concerns; that home help continue to be provided; and that the recliner chair be reupholstered or replaced. A supplementary report (T245) was provided by Healthe Work on the basis of a conversation with Ms Steins which took place on 3 June 2013. That report, by a different occupational therapist, Ms Alison McIlveen, modified the earlier recommendations to some degree. For present purposes, it modified the earlier report by recommending a new recliner chair rather than reupholstering the old one, and by quoting prices for that purpose ($700-$1000).
On 22 September 2016 Ms Steins applied for a replacement chair under section 39 of the SRC Act. On 9 December 2016 (T285) Comcare denied the application. On 27 January 2017 Ms Steins sought reconsideration (T288) and on 28 March 2017 Comcare affirmed the determination of 9 December 2016 (T295). The basis for the denial of the claim was a report obtained from Dr Seneviratne (T284) and also, in the reconsideration decision, an assertion that a recliner chair was doubtfully an “aid or appliance” under section 39 of the SRC Act.
The medical evidence
There is an abundance of medical evidence relating to Ms Steins’s accepted conditions. The origin of her accepted condition was neck strain incurred in a motor vehicle accident in 1992 (T8); subsequently it was accepted that the claim extended to migraine headaches arising from or aggravated by the motor vehicle accident (T19, T27, T30). A number of years later Ms Steins made a claim for permanent impairment and non-economic loss. Comcare decided, in a determination (T126, dated 28 April 2000) and, following a request for reconsideration, a reconsideration determination (T129, dated 8 July 2000), that Ms Steins did have a permanent impairment and a level of non-economic loss. In the second of those decisions the level of permanent impairment was set at 55%, and a significant component of that impairment (25%) arose from chronic depression. In a later determination, dated 6 August 2010 (T214), Comcare extended its liability to include a secondary condition of major depressive disorder. On 23 November 2012 Comcare further extended liability to accept sleep apnoea (T238).
The most recent assessments of Ms Steins’s present condition are the report by Dr Seneviratne that proved so influential in the decision under review (T284), and a further report by him tendered at the hearing (Exhibit R1). Dr Seneviratne also appeared at the hearing and was cross-examined.
The first briefing letter to Dr Seneviratne (T284.1) asked him to conduct a general examination and assessment of Ms Steins, covering diagnosis, prognosis, causation, treatment, and capacity for work and rehabilitation. Comcare asked him to address 16 specific questions. Dr Seneviratne set out the history of Ms Steins’s condition, identifying her major physical condition as “chronic daily headaches” and noting the existence of a depressive disorder on which he refrained from commenting. He noted that the prognosis was poor and that people suffer chronic migraines for years after the initial trigger has been removed. She had exhausted most of the available treatment options. She was not fit for any work and she was incapable of undertaking rehabilitation.
One of the specific questions posed, under the heading “Treatment”, related to whether Ms Steins reasonably required a recliner chair due to her compensable condition. Dr Seneviratne’s response was “no”. The briefing letter sent seeking Dr Seneviratne’s supplementary report asked him to explain how and why he reached that conclusion. The report he prepared in response noted that Ms Steins had “chronic daily headaches and a chronic pain condition” and stated that as Ms Steins had trialled so many pain treatments known to be beneficial in cases of chronic daily headaches (multidisciplinary pain programs, Botox injections, specific anti-migraine treatments), with little result, he was not confident that a recliner chair would provide a significant benefit. He offered the opinion that “using a recliner chair is unlikely to improve her ongoing headaches or chronic daily headaches to a significant degree”.
In the hearing Dr Seneviratne repeated some of the explanation provided in his reports, noting the wide range of different treatments that Ms Steins had trialled over the years and the lack of improvement that had followed. He conceded that a recliner chair may relax the muscles in the neck, but that relaxation does not have a long-term benefit. He noted that pain of the kind suffered by Ms Steins can fluctuate from day to day, and relaxation may yield a transient improvement, but suggested that that improvement is not significant. He agreed that Ms Steins’s condition is progressive and refractory to treatment.
Under cross-examination Dr Seneviratne acknowledged that his expertise related especially to headaches and their triggers, and he was not as expert in neck and upper back pain, except in so far as it related to the triggering of headaches by cervicogenic pain and the like. He noted that he had been unable to identify any structural anomalies in Ms Steins’s neck. He did not accept that relaxation of the neck could yield any benefit to the headaches and the related pain condition, which he saw as the main problem for Ms Steins.
Ms Steins’s evidence
Ms Steins said that she suffers headaches all the time. They are often severe, and have stopped her driving for most of the time. They are worsened by factors such as lights, crowds and noise. Her sleep is affected and she becomes depressed. She suffers pain in her neck, shoulders and sometimes her back. Her condition worsens year by year. The chair does not help her headaches; but it eases the neck and shoulder pain and reduces her need for treatment of other kinds, such as by the chiropractor.
Is a recliner chair an aid or appliance?
Comcare contended that a recliner chair could not be an aid or appliance under paragraph 39(1)(e) of the SRC Act, relying in particular on Heffernan and Comcare [2015] AATA 655. In that case Deputy President (DP) Deutsch was considering whether a four-wheel drive vehicle, with some modifications, could be considered an aid or appliance in respect of an injured employee. DP Deutsch noted that the terms are not defined in the SRC Act and that the dictionary definitions of “aid” and “appliance” are very general and were of little help in determining the question before him. After considering the contentions of the parties he decided the vehicle could not be considered an aid or appliance, on the basis that the vehicle was first and foremost a means of transport, and only in a very secondary fashion something required in a rehabilitative sense (at [38]-[41]).
Ms Steins contended that whether an item is an aid or appliance depends on what the item is and the use to which it is to be put. The question of how a reference to an aid or appliance is to be construed in the SRC Act was addressed, in a somewhat different context, in Comcare v Heffernan [2013] FCA 299 (Heffernan). In that case Edmonds J pointed to the difficulties that could arise if a step-by-step approach to construction is used rather than one that puts the question into the broader context of the statute. His Honour referred to the potential for a “use” test, rather than a “character” test to allow any item whatsoever to be an aid if it was used to assist an injured person and suggested that whether a particular item is an aid or appliance in a given context depends on its “inherent nature, character and attributes” (at [23]-[27]).
The consideration in Heffernan relates to the use of “aids and appliances” in the context of provisions and definitions governing medical treatment in the SRC Act, but draws on the appearance of that phrase elsewhere, including in section 39 of the SRC Act. But without departing from the tenor of the distinction drawn by Edmonds J, the concept of an aid or appliance for the rehabilitative and supportive purposes contemplated in section 39 of the SRC Act is clearly different from the reach of the same phrase in the definition of medical treatment in subsection 4(1) (referring to an “artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance”).
On this point I accept Ms Steins’s argument that her recliner chair is not just a chair, but an item selected for a particular purpose, namely to allow support for her head and neck. That gives the chair rehabilitative and remedial attributes that were the basis for its provision in the first place at the recommendation of the occupational therapists who came to assess Ms Steins’s home. I accept that the chair is clearly also a chair in other ways – an item suitable to sit on in potentially a variety of contexts; but that character is secondary to its primary qualities in the present context. In my view, in light of the above considerations, the chair should be considered as an aid under paragraph 39(1)(e) of the SRC Act, and I so find.
Does Ms Steins “reasonably require” the chair, having regard to her impairments?
The meaning of the verb “require”, in the Macquarie Dictionary or the Concise Oxford Dictionary is closely aligned to “need” or “demand”. That suggests that the provision must meet quite strong preconditions – that without the aid or appliance some form of failure or severe consequence is likely. But the modification by “reasonably” softens the provision. Generally speaking, the inclusion of the modifier “reasonable” or “reasonably” implies first that the test is an objective one – that is, in this instance, that an ordinary person would consider the provision of the aid to be appropriate, rather than it being a matter for Ms Steins herself; and second, suggests that the judgement to be exercised is moderate rather than strict or severe. In Von Stieglitz and Comcare [2010] AATA 263, in the context of the “reasonable administrative action” provision in section 5A of the SRC Act, Senior Member (SM) Creyke put it as follows:
Reasonableness is a chameleon-like concept, tailored to the circumstances. … What is reasonable is assessed objectively and relates to the specific conduct involved in light of the process overall.
SM Creyke quoted Georges and Telstra Corporation [2009] AATA 731,where soundness of judgment, good sense, moderation, keeping expectations within reasonable bounds, tolerability and fairness are identified as among dictionary meanings of reasonableness. Although these comments relate to a very different provision of the SRC Act, the general understanding of reasonableness is of broader application.
It is also clear from the structure of the SRC Act that the purpose of section 39 is not to decide whether an aid serves a medical or therapeutic purpose; those considerations are addressed under section 16 of the SRC Act. Section 39, on the other hand, is remedial and rehabilitative: the purpose of the assistance provided is to make a person’s life manageable in light of the person’s compensable condition.
What this suggests is that whether a given aid is reasonably required under section 39 of the SRC Act is to be decided objectively, in light of the injured employee’s condition and circumstances; the question is whether, within the bounds of rationality, moderation and good sense, the person’s life would be made manageable by provision of the aid.
In the present instance, I do not find the evidence of Dr Seneviratne to be helpful, in that he understood the questions put to him, reasonably enough, in a medical context. He was giving evidence that might have been more useful if the question related to section 16 rather than section 39 of the SRC Act. I could certainly accept that the recliner chair will not deliver therapeutic benefits to Ms Steins, but that is not the question before me: I have no jurisdiction under section 16. The question I need to answer is whether the provision of a replacement chair will allow Ms Steins to live a more manageable and bearable life. Ms Steins gave evidence that the chair eases her pain; for someone with a chronic pain condition that seems like a worthy and indeed reasonable outcome.
The best corroboration I have of that evidence comes from the two assessments of Ms Steins’s home. That in 2004 (T170) notes that Ms Steins:
needs to rest her neck/head whilst
·relaxing
·doing relaxation techniques
·reading
The report from 2013 (T242) merely notes that the chair needed reupholstering or replacing and was ten years old at that time. In the supplementary report (T245) replacement of the chair is recommended on the basis that the age of the chair will make that necessary in any case.
Comcare noted that there is no statement in the 2013 report or the supplementary report that replacement of the chair was “reasonably required”. That is so, but the letter requesting the assessment was closely focused on the provision of home help, and provided no prompt to Ms Maryanne Clement or Ms Alison McIlveen, the occupational therapists, to form a view on the degree to which the chair might be needed. But the 2004 report certainly used the word “need” and supported exactly the account of the need for which Ms Steins continues to contend. There is nothing in the medical evidence to suggest that Ms Steins’s condition has improved to the point that the need identified in 2004 has eased or disappeared. The best expert evidence that I have available to me suggests that Ms Steins had in 2004, and retains to this day, a reasonable need for a recliner chair.
Taking all of these matters into account, I find that, having regard to Ms Steins’s impairments, she reasonably requires a replacement recliner chair under section 39 of the SRC Act.
How much compensation should be paid?
Subsection 39(1) provides, relevantly, that Comcare is “liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee” of replacement of the chair. Subsection 39(2) lists a number of considerations that are to be taken into account in determining the amount of compensation to be paid. The relevant considerations in the present case, in my view, are paragraph (a) (the likely period during which the aid will be required); and (e) (whether arrangements can be made for hiring the aid).
In the present matter it appears that there is no reason to believe that the chair will not provide the desired assistance to Ms Steins for its expected life as a piece of furniture. The last one showed signs of wearing out after ten years; the replacement might be expected to have a similar lifetime; and there is no reason to think that Ms Steins’s needs will change over that timescale. I am not aware that furniture of this kind is available for hire; and if it is it seems unlikely that any saving of significance might be obtained thereby. Certainly no evidence was presented to me on that point.
It could be argued that in the present case any purpose for the recliner chair beyond the rehabilitative and remedial could be recognised by adjusting the contribution that Comcare might make to its cost. Such an approach might commend itself in other cases, but in this instance it would seem to me that uses of the chair will always have the remedial and rehabilitative effect for which it has been provided, as all use of the chair will provide Ms Steins with the opportunity of relaxing her head and neck.
The cost of the chair, according to the receipt provided by Ms Steins, was $1,114.00, including removal and disposal of the old chair. In my view removal of the old chair is part of the replacement cost. The amount of compensation to be paid by Comcare is therefore $1114.00.
I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman
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Associate
Dated: 6 May 2019
Date(s) of hearing: 8 March 2019
Applicant: In person
Support person for the Applicant: Mr Robert Steins
Solicitors for the Respondent: Lehmann Snell Lawyers
Counsel for the Respondent: Ms Felicity Blair
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