Stephenson and Comcare
[2005] AATA 434
•13 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 434
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/127
GENERAL ADMINISTRATIVE DIVISION ) Re GREGORY ROSS STEPHENSON Applicant
And
COMCARE
Respondent
DECISION
Tribunal The Hon R N J Purvis Q.C., Deputy President Date13 May 2005
PlaceCanberra
Decision The decision under review is affirmed.
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[sgd] R N J Purvis Q.C.
Deputy President
CATCHWORDS
REIMBURSEMENT – injury - disability - claim for costs incurred in the acquisition of new residence - definition of alteration - modifications - aids or appliances - vehicle or article – not reasonably required - decision affirmed
Safety, Rehabilitation and Compensation Act 1988 sections 37, 39
Compensation (Commonwealth Government Employees) Act 1971
Thiele v Commonwealth of Australia 95 ALR 172
Re Grace and Commonwealth (1987) 13 ALD 433
REASONS FOR DECISION
13 May 2005 The Hon R N J Purvis Q.C., Deputy President the application
1. This is an application made by Mr Gregory Ross Stephenson (“the Applicant”) for review of a decision made by a delegate of Comcare (“the Respondent”) on 17 February 2004. The reviewable decision was to deny Mr Stephenson’s claim for reimbursements of costs associated with the purchase of a new residence.
2. The issues for determination in this application maybe briefly put as:
· whether under section 39 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) Mr Stephenson may claim the costs associated with moving from a residence at 9 Hollway Street, Calwell, ACT to a townhouse at 5 Matthews Place, Gowrie, ACT;
· if so, whether the costs may be considered to be reasonably required pursuant to the provisions of section 39 of the Act.
the hearing
3. At the hearing of this application the Applicant appeared on his own behalf. The Respondent was represented by Mr Tom Howe of Counsel. The documents lodged by the Respondent with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 as amended were admitted into evidence and marked T1 to T22. Other documentary material tendered by or on behalf of the parties was admitted and marked accordingly.
Exhibit No
Description
Date
A
Medical Certificate for Workers Compensation of Dr John S Broderick
28 January 2005
B
Letter of Theresa Jokich, Health and Safety Area Coordinator ACT Policing to Comcare, Alex Brown
Undated
C
Minute Aileen Conroy, Rehabilitation Case Manager AFP to Petra Crow, National Coordinator Rehabilitation and Compensation
29 May 2002
D
File Note of Case Conference
28 March 2003
E
Minute to Applicant
Undated
1
Sales advice L J Hooker to Applicant
3 April 2003
2
Applicant’s completed form of activities of daily function for functional capacity assessment
20 September 2001
3
Residential listing agreement for Applicant’s property
April 2003
4
Copy of advertisement for Applicant’s home
5
Letter Phillips Fox to Tribunal with copy reports Trevor Beswick 21 September 2001, Dr Woods 15 May 2003 and 19 June 2003, summons
2 December 2004
6
Letter Phillips Fox with attachments
7 March 2005
7
Statement Theresa Jokich
14 January 2005
8
Statement Lucy Brooks
23 February 2005
9
Title Search Applicant’s property
30 September 2004
10
Letter Jordan & MacNutt to Applicant
20 May 2003
The Applicant gave oral evidence upon which he was cross-examined.
factual background to the application
4. The Applicant, Mr Stephenson, is a member of the Australian Federal Police (“AFP”) presently holding the rank of Senior Constable. He has been a member of the force for approximately 28 years. He is married with adult children.
5. In the evening of 4 April 2001, and whilst on duty with another officer, Mr Stephenson had cause to question the driver of a stationary vehicle. He sought clarification of the status of a male person in the vehicle from the Police Communications Branch and on being told that the male person was to be apprehended for failing to report to police as directed by a court endeavoured to do so. The male person provided resistance and Mr Stephenson was thrown to the ground suffering injuries and experiencing bruising and abrasions to his right knee and right wrist. He sought medical attention and in due course made claim for compensation under the Act. I note in passing that Mr Stephenson had suffered an earlier injury to his right knee when attending a work related safety principles course.
6. On 15 May 2001 the Respondent in accordance with section 14 of the Act allowed the claims for contusion to the right wrist, abrasion or friction burn of the right knee, bruise of the right knee and abrasion or friction burn of the right wrist.
7. Sometime in late June 2003 Mr Stephenson moved residence from 9 Hollway Street, Calwell, ACT to a townhouse at 5 Matthews Place, Gowrie, ACT and made a claim for reimbursements of costs associated with the purchase of his residence. On 8 December 2003 that claim was rejected by the Respondent. The matter was reconsidered and the primary determination was affirmed on 17 February. On 8 April 2004 Mr Stephenson made application for review of that decision by the Administrative Appeals Tribunal (“the Tribunal”).
8. It is Mr Stephenson’s claim that the restrictions imposed upon him as a result of the disabilities consequent upon his injuries were such as to cause him to sell his home at Hollway Street, Calwell, ACT and buy the townhouse at Matthews Place, Gowrie. The Calwell property had extensive gardens and had been built on a slope with a steep drive and adjacent steps.
9. It is not necessary for me in these reasons to traverse the medical history of Mr Stephenson since the acceptance of initial liability in May 2001. Suffice it to say that he has undergone medical examinations and assessments since that time. He has been seen by an orthopaedic specialist and a consultant orthopaedic surgeon. He has experienced pain, loss of function and difficulty in walking, holding articles and engaging in activities that require climbing, kneeling or standing for lengthy periods. He has remained in his employment but is unable to carry out his normal duties. His skills being utilised in community policing and advising on crime prevention strategies.
10. In a report, dated 26 March 2003, Ms Lucy Brooks, consultant occupational therapist, stated (T10 folios 36 and 37):
“Pain is aggravated by a variety of movements. Pain in the knee is aggravated by loaded flexion or extension, such as when going up and down stairs. Pain in the left thigh is aggravated by pressure on the thigh. Pain in the right wrist is aggravated by supination or pronation movements of the right forearm, and by flexion of the wrist. Mr Stephenson said he has not identified anything that provides any significant pain relief.
Mr Stephenson stated that his wife does the majority of household tasks, such as cleaning and cooking. He says that he continues to perform gardening, as he enjoys being in the garden and feels that it provides an opportunity for exercise. He said that he has changed the way he does gardening so that he does it over a longer period of time. Previous leisure interests included golf, which he states he has discontinued. Mr Stephenson said driving can be difficult, as he finds holding the steering wheel aggravates his right wrist.”
11. Ms Brooks’ report relates to her assessment of Mr Stephenson on 11 March 2003 and it is of considerable significance that the assessment makes no mention of the prospective purchase of Gowrie property, although Mr Stephenson acknowledged during the course of his cross-examination that at that time he was already introduced to the Gowrie property and had conducted his first examination of it. In evidence before me (Exhibit 7), is a record prepared by Ms Jenny Grose, Rehabilitation Case Manager, of a case conference held at the Hughes Community Centre on Friday, 28 March 2003 and attended by Mr Stephenson, Ms Brooks, some police officers and others concerned officials. I note that yet again such notes fail to contain any reference to the Gowrie property or its prospective purchase by Mr Stephenson. Mr Stephenson also acknowledged during the course of his cross-examination that he had not made mention either to Ms Brooks in the course of her assessment or at the case conference of any difficulty or inability of maintaining the gardens or climbing steps at his Calwell home. It is of note that according to Mr Stephenson he did “not make an issue” of the steps at the home being steep or of the gardening as “I believed the injuries would recover”. His oral evidence was that he was able to manage the lawns and the gardens and did not obtain any professional assistance.
12. Mr Stephenson’s condition has not significantly improved to this date and by his own account he has become, “frustrated, angry and upset concerning his condition”. He has permanent pain in his knee and a resultant limp and will ultimately require a total right knee replacement (T7 folio 27). He may also require a wrist fusion. The orthopaedic surgeon reported in August 2002 that Mr Stephenson’s “degree of impairment will deteriorate significantly over time” requiring surgery (T7 folio 28). In March 2003 Mr Stephenson was experiencing “constant pain at varying levels in his right knee, left thigh and right wrist” (T10 folio 36).
13. Mr Stephenson gave evidence before the Tribunal that he was introduced to the Gowrie townhouse in March 2003 by a fellow police officer. The townhouse was built upon a level block of land and had minimal gardening responsibility. Mr Stephenson contended that prior to being so introduced to the property he had not been engaged in looking for another residence and indeed it was not until he was shown a photograph of the townhouse that he went to see it. However, I note that agreement to purchase the Gowrie townhouse was reached prior to 3 April 2003. Mr Stephenson says that he is able to better cope with his injuries and disabilities at the townhouse.
14. In late 2003 the Respondent funded some improvements to the Gowrie townhouse including handrails in bathrooms and non slip matting. There is no evidence that Mr Stephenson ever requested any improvements to his Calwell home in order to enable him to more effectively manage his disabilities.
15. In an undated letter written to Comcare Case Manager, Marilyn Vandez, Mr Stephenson commented on the sale and purchase of the properties , stating (T14 folio 58):
“I had intended to remain at 9 Hollway Street, Calwell as the home was of a very high standard with expansive views, a very large entertaining area for our expanding family. Also, I had installed a large wood heater which was very effective in maintaining a lovely warm environment during the cold Canberra winters. The home had all the needs which I required and it also had a very positive effect on our family.
The cost in moving house has been very expensive and one which I never had intended doing at this stage of my life and one that I never even would have contemplated had it not been for the injuries which I sustained at my workplace. The cost borne by myself amounted to a total cost of $38,059.60 which included Bank fees, Stamp Duty, Real Estate fees, Solicitors fees and other incidentals. I have attached an itemised account and am seeking reimbursement for the total amount of $38,059.60. These house moving costs were as a direct result of workplace injuries which required me to find suitable residential accommodation to assist in accommodating the ever increasing pain and suffering.”
16. Attached to the letter is an itemised list of the following moving expenses (T14 folio 59):
“POLICE CREDIT UNITON – FINANCES
Application Fee $ 315.00
Bank Cheque Fee $ 8.00
Property Valuation Fee $ 330.00
Registration Fees (ACT) $ 233.00
Mortgage Legal Fees $ 302.50
Loan Interest $1,102.27
Loan Interest $1,951.34
Admin Discharge Fee $ 350.00
________
$4,592.11
ACT REVENUE OFFICE
Stamp Duty $15,742.50
SELLING AGENTS FEES
Elder Real Estate Fees $15,848.00
SOLICITORS SALE OF CALWELL PROPERTY FEES
JORDAN and MACNUTT Lawyers $ 646.00
SOLICITORS PURCHASE OF GOWRIE PROPERTY FEES
JORDAN and MACNUTT Lawyers $ 731.00
INCIDENTALS $ 500.00
TOTAL AMOUND CLAIMED $38,059.60”
17. It is in respect of these expenses that the present application relates.
18. On 8 December 2003 the Respondent rejected the claim maintaining that there is no provision under the Act “to pay for these type of expenses” … being normal costs associated with buying and selling a property which does not meet section 39 (c)” (T15 folios 66 and 67). On review the original decision was affirmed, stating that:
“…there is nothing in the Act which specifically refers to compensation being payable for the purchase costs of a residence. …
In addition, I have made reference to the second reading speech by the Minister for Social Security, the Honourable Brian Howe which states inter alia:
“…The commission will have the power to arrange for the provision of necessary aide and appliances, and home, vehicle or workplace modification..”
Thus, I consider that it was not the intention of the legislature to provide any authority in the Act to reimburse an Employee for the purchase costs of a new residence but to make provision for reimbursement for modifications to an existing residence.
…
Section 39(1)(c) provides that the relevant authority is liable to pay compensation of such an amount as is reasonable in respect of the costs payable by the employee of: any alteration of the employee’s place of residence or place of work.
I note that the Employee argues that the word ‘alteration’ should be interpreted having regard to its broadest meaning, in particular to be interpreted to include a ‘change of’ or ‘shift of’ the employee’s residence.
I disagree with this interpretation and refer to the Australian Oxford Dictionary which states that to ‘alter’ means to ‘change in character, position or modify’. Thus it is my opinion that subsection (1) (c) is intended to provide for compensation for changes or modifications to an existing residence as opposed to a change of residence”.
19. It is this reviewable decision to which the present appeal relates.
relevant legislation and application to the factual situation
20. Section 39 of the Act makes provision for compensation payable in respect of certain alterations etc. So far as is relevant to these reasons the section provides:
“(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.”
21. Mr Stephenson satisfies subsections (1) (a) and (b) of section 39. It is subsection (c) upon which he primarily relies for the recovery of the costs, although he contends that moving house could also come within (d) as modification of an article or (e) as the replacement of an aid or appliance.
22. The word “alteration” in subsection (1) (c) of section 39 is to be given its ordinary meaning of “to make otherwise or different in some respect without changing the thing itself; to modify; to become otherwise; to undergo some change” (Shorter Oxford English Dictionary). The sale of a house and purchase of another can hardly be said to entail not “changing the thing itself”. The house has changed. There has been relocation to a townhouse in a different suburb. If the legislature had intended the Act to embrace costs the like of those being claimed, it could well have said so by providing for costs entailed in relocating or moving from one residence to another. It did not do so.
23. Alternatively it is maintained that a house can be an “article”, modification to which would enable a claim to be made. “Article” is relevantly defined as “a distinct part or portion” (Shorter Oxford English Dictionary) “a piece of goods or property”. I note that the word in the Act is qualified by the use of the word “modifications”. It can also hardly be said that the sale and purchase of real estate is to be equated with “modifications” of an article. Again subsection (e) refers to the repair or replacement of “aids or appliances”.
24. By reason of the use of the word “or” in section 39 the subsections (c), (d) and (e) are separate and distinct the one from the other. They are exclusive to each other. Each subsection is intended to refer to a different factual situation. A “place of residence” is not the same as a “vehicle or article” and neither is the same as an “aid or appliance”.
25. The issue here is whether “the language of the section is capable of being so construed that” the costs associated with the relocation and buying of the townhouse “falls within” (Thiele v Commonwealth of Australia 95 ALR 172 at 181).
26. It seems to me that what section 39 (1) (c) requires is that there be an alteration to a building, a place of residence or place of work not the acquisition of a new residence or change of occupation.
27. The acquisition of a new home is not the alteration of a place of residence. Nor is it the modification of an article. I agree with what was said in Thiele (supra) at page 183 and by this Tribunal in Re Grace and Commonwealth (1987) 13 ALD 433 where at 437-438 it was suggested with reference to section 37 (3) of the Compensation (Commonwealth Government Employees) Act 1971:
“It is my view that the intent of subsection (3) is within the overall scheme of the Act, that compensation is payable were the effect of the compensable injury is such as to invade upon the personal and private domestic life of the employee in a manner which necessitates building alterations to his domestic residence or alterations to a vehicle or article used by him in a manner which permits of his continuing to occupy the residence or use the vehicle or article not withstanding his injury and in respect of his obtaining any aid or appliance (or having obtained it replacing or repairing it) where the alteration or the aid or appliance is reasonable required for use or continued use in the consequence of the injury.
Beyond limiting the application of the subsection to alleviating, if not indeed removing the restriction upon his private life which results from the compensable injury, I cannot see that the subsection as it presently stands, can be given the narrow and restrictive interpretation contended for…The domestic theme of the subsection is set in train by those provision relating to alterations to his residence or motor vehicle or other article. The provisions relating to aids or articles are prefaced by use of the word “any”. It is artificial to impose upon that word of wide and common usage any form of restricted meaning in the absence of any adjective qualifying the nature, description or potential use of the aids or appliances…”
28. Yet again it was said in Thiele (supra) at 184 that “The word ‘appliance’ in the subsection would clearly seem to relate to an item of personal property…”
29. Thus in my opinion the acquisition of a new house cannot be said to be the replacement of an aid or appliance. It cannot be said to be a modification of an article. And it is not “any alteration” of Mr Stephenson’s place of residence. It is the purchase of a plot of land upon which a townhouse had been built. This is not an alteration of a place of residence. Within the meaning of the above definition the residence, “the thing itself” has changed. It is a new and different residence.
30. I am satisfied therefore that Mr Stephenson does not have a right to claim compensation under the Act for the costs that he incurred in the acquisition of the townhouse.
31. Being satisfied that there is no power in the Act to recognise the subject claim, it is not necessary for the Tribunal to consider the “reasonably required” pre-requisite of section 39. However, evidence relevant to this aspect was tendered before the Tribunal. Mrs Theresa Jokich, a qualified regular nurse employed by the AFP since April 2000, was involved in Mr Stephenson’s case management up until June 2004. In her written statement (Exhibit 7), which was not contested by Mr Stephenson, Mrs Jokich has made mention of attending Mr Stephenson’s then home at Calwell in August 2001. She recorded asking Mr Stephenson how he was managing with personal care in the context of his compensable condition and he stated that he “managed”. When asked whether he was able to maintain the property, Mrs Jokich noted that the front garden was on a slope and enquired whether this caused Mr Stephenson any physical difficulty. His reply was that “he could maintain the garden and lawn on his own”. She asked whether he would seek assistance with household tasks and he indicated that his wife performed all interior work and that no additional help was necessary. Mrs Jokich’s written evidence is that during her visit Mr Stephenson “did not indicate any problems with mobility around and on the Calwell property” in the context of his compensable condition and his ability to cope with the daily management of the Calwell property. Mrs Jokich was not aware of Mr Stephenson’s plans to move house until he was resident in the Gowrie townhouse and at no stage, during her involvement in Mr Stephenson’s case management up until early 2004, did he state to her that “he had problems with his mobility around his Calwell property, or that he was intending to sell his house and purchase another home more suited to his compensable injuries”.
32. Ms Lucy Brooks, the occupational therapist, had weekly communication with Mr Stephenson between March 2003 and November 2004. In her written statement (Exhibit 8), which again was not challenged by Mr Stephenson, Ms Brooks stated that Mr Stephenson did not inform her of his intention to move from his Calwell home to the Gowrie townhouse prior to his move. Her evidence is that she spoke to Mr Stephenson in person approximately one week before he moved house after purchase of the Gowrie property. She notes, “He stated that he was moving house. He seemed happy and said that he received a good price on the Calwell property. He also stated that he was moving house because it was easier to manage with his compensable condition. I was surprised because this matter had not been raised by Mr Stephenson before this time”.
33. In November 2003 Mr Stephenson requested a home assessment of the townhouse, reporting difficulty with the bath in his bathroom and it was further to this assessment that the steel rails were installed to alleviate the mobility problems Mr Stephenson was having. It was noted by Ms Brooks that in the 7 November 2003 consultation with Mr Stephenson at the Gowrie property he stated that he was “very happy with the Gowrie property and that it had no steps”. He also stated that “he performed all of his own gardening and that he did not need any assistance. There was little change between this from his comments to me on 11 March 2003 whilst still living at the Calwell property”. It was noted by Ms Brooks that “at no point prior to Mr Stephenson’s move from the Calwell to the Gowrie property did he state that he was having difficulties either maintaining the Calwell property or was experiencing mobility problems at his home, although I was in weekly contact with him”.
34. Mr Stephenson did not seek to cross-examine either Ms Jokich or Ms Brooks on the material contained in their statements. The Tribunal is entitled to and does accept each of the witness statements as truthful. Having considered the medical evidence contained in the T-documents and Exhibit 5, and what was said in Exhibits 7 and 8, I am not satisfied that Mr Stephenson has established that the move to the Gowrie property was reasonably required as a result of his compensable condition.
35. For the reasons herein before set forth, the decision under review is affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President
Signed: Z Khan
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AssociateDate/s of Hearing 15 April 2005
Date of Decision 13 May 2005Applicant self-represented
Counsel for the Respondent Mr T Howe
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