Comcare v Heffernan

Statutory Context 5 Section 16(1) of the SRC Act provides: Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment. 6 "Medical treatment" is defined in s 4 to mean: (a) medical or surgical treatment by, or under the supervision of a legally qualified medical practitioner; or (b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or (c) dental treatment by, or under the supervision of, a legally qualified dentist; or (d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or (e) an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or (f) the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or (g) treatment and maintenance as a patient at a hospital; or (h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or any other form of treatment that is prescribed for the purposes of this definition.

Notice of Appeal 7 Comcare's supplementary notice of appeal raised two grounds: (1) The Tribunal failed to consider, as the statute required, whether the motor vehicle sought by the applicant constituted an "aid" which fell within the statutory formulation "medical, surgical or other similar aid". (2) If, contrary to the ground above, the Court finds that the Tribunal did consider whether the motor vehicle sought by the applicant fell within the statutory formulation of "medical, surgical or other similar aids or appliances", the Tribunal gave to the expression "similar aids or appliances" a meaning which was broader than the words were capable of bearing having regard to their ordinary meaning in the context in which they appeared. 8 Both grounds are said to be founded on a single question of law, namely, whether the Tribunal correctly construed the definition of "medical treatment" in s 4 of the SRC Act and in particular: (1) Whether the Tribunal in determining whether supply of a motor vehicle fell within the definition of medical treatment, adequately, or at all, took account of the fact that the words "aid or appliance" formed part of the phrase "medical, surgical or other similar aid or appliance" and were qualified by the words which preceded them in para (f); or (2) in the alternative, if the Tribunal did recognise that the words "aid or appliance" were qualified by the words which preceded them in para (f), whether the Tribunal wrongly construed the word "similar" with the result that the range of "aids and appliances" which were regarded as similar to medical or surgical aids or appliances was impermissibly broad.

Notice of Contention 9 On 23 January 2013, Mr Heffernan filed a notice contending that the decision of the Tribunal should be affirmed on grounds other than those relied on by the Tribunal, namely: (1) The modified motor vehicle claimed by Mr Heffernan was compensable as an aid or appliance pursuant to s 39(1)(e) of the SRC Act. (2) The modified motor vehicle claimed by Mr Heffernan was a "curative apparatus" within para (h) of the definition of "medical treatment". 10 The notice of contention was filed out of time and Mr Heffernan needed the leave of the Court to rely on it. 11 As to the first ground of the notice of contention, the Tribunal in its reasons for the earlier decision said (at ER [3]): Section 39 of the Act makes Comcare liable to pay the reasonable costs of any modifications to a vehicle used by Mr Heffernan that is reasonably required by him having regard to, among other things, the nature of his impairment. It is common ground however, that s 39 has no application here because it is not possible to modify the vehicle currently owned by Mr Heffernan. 12 In the face of this, I refused Mr Heffernan leave to rely on the first ground of his notice of contention, but granted leave on the second, that is, the para (h) ground, the subject of the Tribunal's consideration in arriving at its earlier decision. The proper construction of the definition of "medical treatment" in s 4 of the SRC Act, in particular para (h), is undoubtedly a question of law. Mr Heffernan's contention is that the Tribunal erred in concluding that a modified motor vehicle was not a "curative apparatus" within the terms of para (h) of the definition.

Para (h) of the definition of "medical treatment" 13 The Tribunal had regard to the dictionary definition of "curative" and "apparatus" (at ER [9]) and concluded (at ER [10]) that there could be little doubt that a motor vehicle, modified or otherwise, is an "apparatus" in the ordinary meaning of the word, but whether it was a "curative apparatus" was a more difficult question to resolve. Speaking for myself, I would not have thought that there was any difficulty with this question, however, saying so does not constitute an error of law. 14 The Tribunal then considered a number of cases where the term "curative apparatus" had been considered in different legislative contexts, albeit dealing with workers' compensation relief. The Tribunal considered and made observations on the following cases: (1) Thiele v The Commonwealth of Australia (1990) 22 FCR 345 at 346, where Hill J rejected the argument that a swimming pool constructed to alleviate the applicant's back pain was a "curative apparatus" within the meaning of the 1971 Act on the basis that an in-ground structure such as a swimming pool was a fixture, not an apparatus. (2) On the other hand, his Honour had no difficulty accepting the proposition that a hydrotherapy pool could be a "curative apparatus" citing, with apparent approval, the decision of the New South Wales Court of Appeal in Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216. In that case, the Court of Appeal was considering the meaning of "curative apparatus" in the context of the Workers Compensation Act 1926 (NSW) which, like the corresponding Commonwealth statute, did not carry a definition of curative apparatus. (3) Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318 at 332 where the NSW Court of Appeal held that the provision of a modified vehicle of a suitable type may be a "curative apparatus". In the leading judgment, Priestly JA found that there was no material distinction to be made between the provision of a hydrotherapy pool (as in Ferguson Transformers), the provision of an electric wheelchair as in G C Wood and Son (Australia) Pty Ltd v Cullen [1991] 2 VR 214 and the provision of a modified vehicle where the evidence justified "the conclusion that the provision of these items was of therapeutic assistance to the particular worker". (4) An AAT decision on a similar issue was Re Townley v Comcare [2004] AATA 252. In that case, it was held that a spa bath which reduced the pain and symptoms of a degenerative spinal injury, reducing the applicant's need for pain medication and therapeutic massage, was a curative apparatus. (5) In Re Monk and Comcare (1996) 43 ALD 677, Deputy President McMahon applied Ferguson Transformers, holding that a motor vehicle modified to transport the applicant's electric wheelchair was a curative apparatus. He concluded that the modified vehicle would improve the applicant's self-confidence, increase her mobility and reduce her risk of falling. He accepted an argument that a modified motor vehicle would ameliorate the applicant's "psychological decay" and was therefore a form of therapy and thus "curative" in the wide sense of the word given to it by Hutley JA in Ferguson Transformers. (6) In Hart v Military Rehabilitation and Compensation Commission (2006) 92 ALD 678, the Tribunal decided that Comcare was not liable to pay for a chiropractic bed and an ergonomic chair for a soldier with an injured back. The applicant had brought his application for compensation for medical treatment arguing that the bed and chair were either "aids or appliances" or "curative apparatuses" falling within the scope of the definition of "medical treatment" in s 4(1). The Tribunal decided, inter alia, that for an apparatus to be "curative" for the purposes of s 4(1) it must be "remedial" or "rehabilitative" in nature, with a tendency to "promote recovery". 15 At ER [20] the Tribunal relevantly observed: Counsel contends that a modified motor vehicle will reduce the chance of Mr Heffernan's back getting worse and will also have a positive psychological effect on him. In this contention, he is supported by the psychiatric report of Dr Inglis Howe Synnott who stated that Mr Heffernan was likely to derive psychological benefit from driving such a vehicle (as opposed to a less comfortable vehicle). Further support is to be found in the opinion of Mr Heffernan's GP which is to the effect that driving such a vehicle would aid in reducing his depression (see report of Dr Malcolm Mitchell 21 July 2010). 16 The Tribunal concluded: 22. The Act is remedial legislation and therefore ought be construed beneficially. I therefore accept the analysis expounded in Ferguson Transformers that a "curative apparatus" merely has to have a therapeutic effect, in the sense of delaying physical or psychological deterioration, to fall within paragraph (h) of the definition of "medical treatment" in s 4(1). In my view, the narrow construction placed on the meaning of "curative" in Hart places too great a weight on positive rehabilitation. 23. In Bresmac, Priestly JA did not explain why he found that a modified vehicle was "of therapeutic assistance" to the worker in question. It therefore provides little assistance in resolving the question. The "apparatus" in question in Ferguson Transformers was a specially designed hydrotherapy pool. Its purpose was to facilitate beneficial treatment for the plaintiff. Similarly, in Townley, a spa bath that relieved symptoms of spinal degeneration seems obviously to have a therapeutic effect. 24. In my view, a modified motor vehicle of the type Mr Heffernan wishes Comcare to pay for is not a "curative apparatus". A hydrotherapy pool is by definition an instrument of therapy or treatment. A modified vehicle, however, is not; it appears merely to be a conveyance. If the reasoning in Monk is taken to its logical extreme, almost anything pleasurable to an injured worker, such as a wide-screen television, could be regarded as "therapeutic" in the sense of moderating or ameliorating "psychological decay". In my view, vague evidence of some form of unspecific amelioration of "psychological decay" is insufficient to establish a "therapeutic" effect for the purposes of paragraph (h) of the definition of "medical treatment" in s 4(1). The evidence of the GP and Dr Synnott of psychological benefit is, unfortunately, unspecific and nebulous. Although I do not reject it, I do not place great weight on it because of the lack of detail and foundation for the opinion. 25. For an apparatus to be regarded as "curative" it must, in my opinion, be inextricably linked to some form of treatment of the worker's disease or injury or be instrumental in the provision of some form of therapy intended to reduce the pain, discomfort or disability resulting from that disease or injury, whether or not that therapy is rehabilitative. What form of treatment or therapy is provided or facilitated by means of a modified vehicle? 17 In my view, the Tribunal did not err in the conclusion it reached on this issue. For myself, I would not regard an apparatus as a "curative apparatus" unless it served to cure, heal or provide rehabilitative or remedial relief. An apparatus which did no more than provide therapeutic assistance, whether in the form of a physical or psychological benefit, without providing rehabilitative or remedial relief is not, in my view, a "curative apparatus". Even if the Tribunal erred in law in not applying what it called "the narrow construction placed on the meaning of "curative" in Hart (at ER [22]), it nevertheless, came to the correct conclusion and the notice of contention must therefore be dismissed: see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550; Austin v Deputy Secretary, Attorney-General's Department (1986) 12 FCR 22 at 26, 27; State Rail Authority of New South Wales v Collector of Customs (1991) 33 FCR 211 at 217.

Para (f) of the definition of "medical treatment" 18 The Tribunal approached the construction of para (f) of the definition of "medical treatment" on a step-by-step basis; by looking first at the dictionary meanings of the words "aid" and "appliance" (at R [5]). It expressed the conclusion that: "A car is, obviously, an apparatus or machine", and was, therefore, within the dictionary definition of "appliance". It then said: "The question is whether, in the circumstances of the case, it is an 'aid'" (at R [5]). This is somewhat curious as it suggests that to fit within para (f) the item must be both an "aid" and an "appliance" when clearly the paragraph is expressed in the alternative; certainly, it is not cumulative. But again at R [6] the Tribunal says: "A motor vehicle of suitable configuration would certainly be an apparatus that 'aids or yields assistance' to [Mr Heffernan]". Again, it seems to be suggested that to fit within para (f), the item has to be an "appliance" that "aids". 19 The balance of the Tribunal's reasoning is taken up with determining whether something is an "aid". At R [7] the Tribunal says: What determines whether something is an "aid" for the purposes of the Act is not whether it is specifically designed for disabled or injured persons but whether it is used for the purpose of providing aid and assistance to such a person, and in fact does so. That depends as much on the characteristics of the user as on the design of the device or apparatus. Human ingenuity and experience demonstrate that many things designed for one purpose may be adapted for use for another. The category of "aids" is not closed. 20 The reasoning then stops and, at R [13], the following conclusion is reached: In summary, depending on the circumstances, a modified motor vehicle may be considered to be a form of "medical, surgical or other similar aid or appliance" because it could provide a means of mobility otherwise denied to a disabled person just as a walking stick, crutches, prosthesis, wheelchairs or a motorised buggy might do. The essence of such devices is that they are substitutes for something a disabled person physically lacks (such as the use of a limb) or are an adjunct to forms of treatment that are intended to provide direct and positive therapy. I conclude that, in this case, a modified motor vehicle of the type recommended by Ms Wise constitutes "medical treatment". 21 In my view, this step-by-step basis is not the proper way to approach the task of statutory construction. As was said in the joint judgment (Hayne, Heydon, Crennan and Kiefel JJ) in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 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. (Footnotes omitted.) 22 The text of para (f) makes clear that the task of construction is not to determine what is an "aid", or an "appliance" for that matter, but whether something qualifies as an "other similar aid or appliance" in the context of the text: "… artificial limb or other artificial substitute or a medical, surgical or other similar aid or appliance". So approached, I would not have thought that a modified motor vehicle could ever qualify as an "other similar aid or appliance". 23 That the Tribunal was able to come to a contrary conclusion is attributable to two main reasons. 24 First, it rejected a test based on the inherent nature, character or attributes of an item and embraced, instead, one based on use and result - whether the item is used for the purpose of providing aid and assistance for disabled and injured persons, and in fact does so (see R [13] of the Tribunal's reasons extracted in [19] above). Such a test would logically lead to the conclusion that any item, irrespective of its nature, character or attributes could qualify if it is used, or modified and used, to aid or assist a disabled or injured person and in fact does so. For example, a modified ironing board which assists a disabled or injured person to press clothes. That cannot be correct; albeit in a totally different statutory context, see the rejection of the "use" test in favour of the "character" test in W Smith v Federal Commissioner of Taxation (1982) 41 ALR 315. The words "or other similar aid or appliance" are not referring to items which, when put to a particular use, achieve a result which can be described as similar to the result which a medical or surgical aid or appliance achieves, but to items which have a similar inherent nature, character or attributes to medical or surgical aids or appliances. A motor vehicle, whether modified or not, does not have a similar inherent nature, character or attributes to a medical or surgical aid or appliance of the kind identified by the Tribunal at [13] of its reasons: walking stick, crutches, prosthesis, wheelchairs or motorised buggy (assuming in the latter case it is not something which would be described as a motor vehicle for use on a public road). 25 Second, it undertook the task without reference to the relevant statutory context. Here, the relevant statutory context as referred to in Alcan (NT) is wider than the terms of the definition of "medical treatment", and extends to use of that term in other provisions of the SRC Act, in particular s 16. In subs 16(3) reference is made to medical treatment that involves the supply, replacement or repair of property used by the employee and deems the cost of such supply, etc., to include fees or charges payable by the employee to a legally qualified medical practitioner or dentist or other qualified person, e.g., optometrist, for a consultation, examination, prescription or other service reasonably required in connection with that supply, etc. The cost of supplying a motor vehicle, or replacing components as part of a modification process, would clearly not qualify. 26 The statutory context also extends to other provisions of the SRC Act, such as s 39 which in subs (1), specifically deals with vehicle modification. Section 39(1) 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. 27 In my view, this statutory context strongly points against the "use and result" test applied by the Tribunal in determining that the provision of a modified motor vehicle for Mr Heffernan constituted "medical treatment" by reason of the terms of para (f) of the definition of that term in s 4 of the SRC Act. 28 For these reasons, I am of the view that the Tribunal's decision is infected with legal error and that Comcare's appeal should be allowed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.