Taylor v Tehree

[2015] VMC 42

IN THE MAGISTRATES COURT OF VICTORIA F12603275

AT MELBOURNE

KIM TAYLOR	Plaintiff
V
GORDON TEHREE	Defendant

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MAGISTRATE:	Magistrate B.R. Wright
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2015
DATE OF DECISION:	15 December 2015
CASE MAY BE CITED AS:	Taylor v Tehree
MEDIUM NEUTRAL CITATION:	[2015] VMC042

REASONS FOR DECISION

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Catchwords:      

Workers Compensation – Medical and Like Expenses – “personal and household service” – “aid, appliance, apparatus” - Front Loading Washing Machine – Accident Compensation Act (Reprint no. 15) ss 5(1), 99(2)(c), 99(15)(b) & (Reprint no. 20) ss5(1), 99AAA(2)(c), 99(2) and (12)(b)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Allan	Arnold Thomas & Becker
For the Defendant	Mr B McKenzie	Hall & Wilcox

HIS HONOUR:

1 Ms Taylor seeks an order that the Victorian WorkCover Authority (“the VWA”) pay the reasonable cost of a front loader washing machine (“the front loader”), pursuant to s.99 of the Accident Compensation Act 1985 (“the Act”).

2         The authorised agent of the VWA in its Notice dated 24 December 2014 had stated "It is not considered reasonable and/or necessary to fund for the recommended procurement of a front load washing machine."  This was despite the fact that the initial recommendation for such came from the VWA's own occupational therapist, and was supported by its own independent medical examiner, Dr James Rowe, as well as Ms Taylor's general practitioner.

3 Counsel for the VWA now does not dispute the reasonableness or the need for such a front loader or the cost of same. Rather, his submissions go to whether the VWA is liable under the Act to pay for such an item in any circumstance.

4         I note that Ms Taylor was injured in a work-related fall from a ladder on about 22 February 1995 and has had a number of surgical procedures to her lower back, including apparently three artificial discs.  The VWA also admits further injury to the left wrist requiring surgery, right shoulder and left thumb, as well as consequential psychiatric issues.

5       The occupational therapist recommended a front loader on a sturdy table to eliminate the need for bending and twisting of the thoracolumbar spine to perform laundry tasks.  Apparently, Ms Taylor already has a top loading washing machine.

6        Her Counsel submits that the front loader is a "personal and household service" as defined by s.5 as being an “appliance”. The Macquarie Dictionary defines “appliance” as "including an electrical household device". He does though note an alternative definition as a "mechanical apparatus or device designed to assist a disabled person."

7 He notes the "personal and household service" must be of a "kind and type approved by the Authority" pursuant to the definition in s5(1) of the Act. He submits that this requirement only goes to the approval of a kind or type of front loader, for example brand and size, once the service has been approved.

8         Although the “personal and household service” must be at the request of a medical practitioner pursuant to sub-para (f) of the same definition, he notes that the request has been approved by the VWA's occupational therapist and its independent medical examiner as well as Ms Taylor's own GP.  In such circumstances, this process should satisfy the provision. 

9         He refers to Cornell v State of Victoria [2011] VMC 3 (per Garnett M). He also refers to s.99(12)(b) which denies liability for "household or personal items" unless the "particular thing is a medical service or a hospital service provided as a result of injury." He submits that this does not apply to an item which is otherwise necessary as a result of a worker's compensable injury.

10 In this case Ms Taylor already has a washing machine. She requires a particular type of washing machine as a result of her injury. He also notes the VWA's “Claims Manual” under “aids and appliances” at 4.5.2.2 states that certain household furniture items such as orthopaedic beds and mattress sets and support armchairs may be paid for "as a direct consequence of the worker's compensable injury to offset the effects of injury." In such a case he submits that the relevant item ceases to be a household item for s.99(12) purposes.

11       Overall, he submits that a front loader in Ms Taylor's specific circumstances is an “aid and appliance” pursuant to 4.5.2.2 of the Claims Manual, taking into account its inclusion as a “personal and household service”.

12       Finally, he refers to the well-known principles of workers compensation legislation being intended to be beneficial for injured workers and be interpreted as such with any ambiguity to be interpreted preferably in favour of the worker (see, Bird v Commonwealth [1988] 62 ALJR 336 and Dodd v Executive Services [1975] VR 668 at 679).

13 Opposing Counsel also refers to the definition of “personal and household service” in s5(1) and submits this is limited by s.99(12)(b) as I have set out above. He submits that, in addition, there is a further limit on liability provided by the reference to have regard to “guidelines” as set out in s.99(2). He refers to a decision by Magistrate Garnett in Gillen v VWA [2011] VMC 56 in which His Honour referred to Guidelines 10.5.2 in the Claims Manual as to “aids and appliances”.

14       Counsel refers to the General Guidelines 4.5.2.1 in the Claims Manual which provides "the worker has a responsibility to provide reasonable quality and safe household equipment in services."  Further, at 4.5.2.3 of the Claims Manual, it states, "WorkSafe is not liable for the provision of normal and essential household items as this is the worker's responsibility."

15 Curiously, he then goes to the definitions of “aids” and “appliance” in the Macquarie Dictionary and also submits that the front loader is an “appliance” as submitted by Ms Taylor’s Counsel. It also would arguably be an aid "as one that which aids or yields assistance." He submits that the VWA is unaware of any case concerning household or personal item as used in s.99(12)(b). He noted that in Snooks v State of Victoria [2000] VCC 38, Judge Strong considered repainting the exterior of the house was not a “personal and household service” as it involved maintenance.

16 He submits that a washing machine is a normal and essential household item as contemplated by guideline 4.5.2.3 of the Claims Manual. Further, the front loader is excluded as a household item pursuant to s.99(12)(b) of the Act.

17       As for Ms Taylor's Counsel's submissions as to “aid and appliance” in 4.5.2.2 of the Claims Manual, he submits that the WorkSafe “Policy for Equipment and Related Services” (“the Policy”) issued both in August 2014 and August 2015 clearly focuses on aids and equipment of "a broadly medical or rehabilitative nature."

18       That Policy goes on to regard items such as mattresses, personal computers, footwear and some furniture as being household or personal items.  However, payment for such items would be considered in certain circumstances according to the Policy.

19 As for Ms Taylor's submission that a front loader is not a normal household item for her because of her compensable injury, he submits that this is a roundabout way of saying that she is entitled to any household item she requires and is contrary to the Act, Guidelines and the Policy as previously expressed.

20       In reply, Ms Taylor's Counsel points out that in Gillen v VWA, Magistrate Garnett did not refer to s.99(2) of the Act in his decision. Further, the decision in Snooks is irrelevant as it involved household maintenance which is not the case in the present proceedings. 

21 He submitted the Policy was of doubtful relevance. However, it did set out circumstances under which certain equipment would be paid for by the VWA, despite normally being otherwise excluded under the Act. Otherwise, his reply substantially repeated other points made by him in his primary submissions.

22 Before setting out my decision in this case and my reasons, I note that both Counsel had presumed that the present “Part IV Division 2B -Compensation for medical and like services” as set out in Reprint No.20 is the relevant legislation. I do not believe that that is correct. The present Part IV Division 2B was inserted into the Act by Act 80 of 2010.

23       The relevant transition provision, being s.374, states that the new Division 2B of Part IV "applies in respect of a liability on the Authority arising on or after the commencement date." (emphasis added). In this case the commencement date was 20 October 2010. 

24       Certainly the drafting of the transitional provision is ambiguous and does create some problems.  I believe that the words "a liability" are used in the context of liability for injury and/or to pay any consequential compensation.  That liability was accepted well before October 2010 when the claim was accepted. I do not think it can refer to the liability to pay this particular claim for the front loader as there can be no liability for this until the issue is determined by the court.

25       Other transitional provisions in Act 80 of 2010 refer to injuries before or after the commencement or lodging of claims and other transitional aspects.  If parliament had intended to make earlier accepted claims subject to the new Division 2B of Part IV, it could have used other transitional phrases to do so as set out in the same Act. 

26       This can be seen more clearly in Gillen that both Counsel have addressed. That also involved an accepted 1995 injury. Although the relevant medical and like expense claim for a bed was made in February 2010, Magistrate Garnett in hearing the claim in October 2011 did not apply the new Division 2B of Part IV. His Honour clearly referred to s.99(2)(c)(iii) of the previous Act. He did not refer to the present provisions probably for the same reasons as I have set out.

27 Thus, the provisions set out in Reprints earlier than Reprint 20 are relevant. To all intents and purposes the main provisions are those set out in Reprint No.15. Overall, this does not make much difference to this case except for the present s99(2). The definition of “personal and household service” is the same. The present s.99AAA(2)(c) is the equivalent of 99(2)(c) in Reprint no.15. The present s.99(12)(b) is the equivalent of s.99(15) in Reprint no.15.

28 The present provisions contain two separate references to “guidelines”, namely, s.99AAA(2)(c) as to “reasonable” cost, and to s.99(2) as to items "for which approval should be sought." The two provisions should not be confused. I refer to Blaess v Mercantile Mutual [1998] VAR 209 in which McCarthy DP of VCAT considered “guidelines” for medical and like services in the Act. Deputy President McCarthy pointed out that the guidelines as to reasonable costs could only be “had regard to” in the then s.99(2)(c)(iii). Any “guidelines” as to circumstances where approval should be given were ultra vires that provision.

29 Since that decision the present s.99(2) has now been included in the Act. Because of the above specific transitional provision, I find that s.99(2) is not applicable to this claim and thus any “guidelines” relevant to that provision should be disregarded in considering this claim. Further, when considering “guidelines” I believe that this term should be strictly construed. I refer to Blaess in that regard.

30 I believe both Counsel in their submissions have been too liberal in including segments of the Claims Manual and other documents as “guidelines”. I believe that only documents referred to strictly as being “guidelines” for purposes of the Act should be regarded as such.

31 For example, both versions of the Policy clearly state at the bottom of the first page of each that it is a “guideline” in respect of reasonable medical and like expenses for which approval should be sought (i.e. referring to s.99(2)). To a lesser extent 4.5.2.1 of the Claims Manual headed "General Guidelines" may also be relevant, but again only to the processes for the approval of aids and appliances.

32       Other references in the Claims Manual are clearly for the benefit and the guidance for VWA and authorised agent staff in assessing claims and are not relevant for the determination of this claim before me.  However, those aspects may be relevant for other purposes as I will consider later.

33       I now turn to delivering my decision on this claim. 

34 Overall, I am satisfied on the balance of probabilities that in the circumstances of this case that a front loader is a “personal and household service” within the meaning of s.5(1) as an “aid” or “appliance”. Even Counsel for the VWA seems to agree on this in his submissions. I see no reason why a restricted interpretation should be given to defining “aid” and “appliance”, especially in the context of a “personal and household service”.

35 That is not to say that all injured workers are entitled to washing machines. There is still the overall requirement in s.99(1)(a) that the service must be "received because of the injury."

36       In the present case, Ms Taylor does have a top loading washing machine at present.  The VWA's occupational therapist and independent medical examiner, as well as her own GP, have identified that a front loader placed on a secure table would be better for her to "eliminate bending and twisting of the spine."

37 I note that in the Claims Manual and the Policy, the VWA will consider household items such as beds, computers, armchairs, personal alarms and even sports equipment as being covered under the Act. I doubt the VWA would allow payment for items which it does not believe that are entitled to coverage under the Act. This would reinforce my above ruling.

38 A similar point could be made in relation to s.99(15)(b) of the Act which purports to exclude any household item or coverage unless it is medical service or a hospital service. Again, why would the current policy be a relevant guideline and included in the Claims Manual for approval of items such as computer, armchairs and beds which are clearly household items and not a strict medical service.

39 I agree with Counsel for Ms Taylor that s.99(15)(b) is meant to exclude household items not covered by s.99(1)(a) of the Act as not being, "required because of the injury." I believe it is meant to exclude general household items which a worker believes would assist, but which are not required, because of the injury.

40       Counsel for the VWA has not raised any issue as to any request by a GP, probably in view of the fact of the circumstances of how this claim arose which I believe is correct.  In any event I respectfully agree with Magistrate Garnett's decision in Cornell.

41 Finally, if I am incorrect that the present Division 2B of Part IV is not applicable and those provisions should be taken into account, especially s.99(2) and its Guidelines, I will now consider that aspect.

42 It is important to note that the present s.99(2) is limited in its coverage. It merely states that the VWA's Guidelines should identify “services, or services of a class of services . . . for which approval should be sought" (emphasis added).

43 Unlike s.99AAA(2)(c)(iii) there is no requirement for regard to be had to the Guidelines in determining a reasonable cost. Section 99(2) does not allow for Guidelines as to the circumstances or criteria for prior approval, but merely which services should be subject to prior approval. To that extent those Guidelines in the Policy beyond specifying such services for prior approval are arguably “ultra vires” s.99(2) for similar reasons as pointed out by DP McCarthy in Blaess in regard to another provision.

44 I note VWA's Counsel's submission that s.99(2) and the Policy specify which equipment is to be approved and in what circumstances. Even allowing for this it seems to me that a front loader can be a piece of equipment for the purpose of the Policy.

45      The Policy does refer to both specific health and household equipment, for example, life support equipment and personal computers.  It sets out general guidelines on p.1 and more specific guidelines for specific equipment in the rest of the Policy.

46       Further on p.1 it sets out the rhetorical question, "'What can the agent pay for in relation to equipment?"  It states that the agent can pay for the purchase of equipment (1) required as a result of a work related injury or illness, and (2) if there is clinical justification that the equipment will measurably improve a worker's '"function, independence, level of pain or discomfort and mobility, etc.'" 

47      

Certainly, the occupational therapist, as supported by Dr Rowe and

Ms Taylor's GP, has arguably considered those aspects including function, independence, level of pain and discomfort, and probably even mobility in recommending the purchase of a front loader.  As a front loader is not specified in the balance of that Policy and under the specific items, it is not necessary to consider the Policy any further.

48       The “General Guidelines 4.5.2.1” in the Claims Manual only go to criteria, information for applications, details of guarantees and warranties and do not take the issues any further beyond what I have already stated.  I emphasise that I do not say that all household items are “aids and appliances” for the purposes of Division 2B of Part IV of the present provisions, even if they would assist an injured worker cope with personal and household activities.  Division 2B of Part IV imposes restrictions on approval of such items as I have set out above. 

49 In this particular case, I determine the front loading washing machine is an aid or appliance in the definition of “personal and household service” in s.5(1) of the Act.