Basedow v Komatsu Australia Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Basedow v Komatsu Australia Pty Limited [2021] NSWPIC 457
APPLICANT:	Christopher Basedow
RESPONDENT:	Komatsu Australia Pty Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	16 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for provision of new vehicle or vehicle modifications pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act); whether provision of a vehicle is a ‘curative apparatus’ in the circumstances of the applicant’s case pursuant to paragraph (e) of the definition in section 59 of the 1987 Act; Coomber v Red Funnell Fisheries Newcastle Pty Ltd and Newcastle Regional Public Tenants Council Incorporated v Grant considered; identification of the relevant therapeutic features; whether vehicles proposed are reasonably necessary treatment; Held – award for the applicant pursuant to section 60 of the 1987 Act; orders with respect to market or trade in value of worker’s existing vehicle.
DETERMINATIONS MADE:	1. The respondent to pay as compensation under s60 of the Workers Compensation Act 1987, the applicant’s expenses for the supply to the applicant of a new or late model Volkswagen Touareg 210TDI Elegance or 190TDI Premium vehicle, including: (a) a fully adjustable driver’s seat with inbuilt heat function on the seat pan and backrest; (b) airbag suspension; (c) automatic transmission, and (d) reversing camera, less the fair market or trade-in value of the applicant’s current motor vehicle, as the circumstances dictate. 2. Should the parties be unable to agree upon the fair market or trade-in value of the applicant’s current motor vehicle, a professional valuation of that vehicle is to be obtained and the respondent is to pay the costs of any such valuation.

STATEMENT OF REASONS

BACKGROUND

Mr Christopher Basedow (the applicant) was injured in the course of his employment with Komatsu Australia Pty Limited (the respondent) on 6 February 2017. Liability for the injury was accepted by the respondent’s insurer.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged on 15 July 2021. The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for a replacement motor vehicle or, alternatively, modifications to his existing vehicle.
Liability for the purchase of a new vehicle and modifications to the applicant’s existing vehicle was disputed in notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 20 May 2020 and 7 April 2021.

ISSUES FOR DETERMINATION

The parties agreed that the following issues were in dispute:

(a) whether the expenses claimed constitute “medical or related treatment” pursuant to s 59 of the 1987 Act, and
(b) whether the expenses claimed are reasonably necessary as a result of the injury on 6 February 2017 pursuant to s 60 of the 1987Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 16 September 2021. Despite a lengthy conciliation conference, the parties were unable to reach an agreed resolution of the dispute.
Determinations were made admitting into evidence a number of late documents. The applicant was granted leave to lodge a further brief written statement addressing late documents lodged by the respondent. A timetable was established for the lodgement of written submissions on the substantive issues in dispute and the parties advised of my intention to determine the matter at the conclusion of that timetable.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents;
(b) Reply and attached documents;

(c) documents attached to an Application to Admit Late Documents lodged by the applicant on 20 August 2021;

(d) documents attached to an Application to Admit Late Documents lodged by the respondent on 8 September 2021;

(e) documents attached to an Application to Admit Late Documents lodged by the respondent on 16 September 2021;

(f) document attached to an Application to Admit Late Documents lodged by the applicant on 23 September 2021;

(g) written submissions lodged by the applicant on 28 September 2021;

(h) written submissions lodged by the applicant on 13 October 2021, and

(i) written submissions in reply lodged by the applicant on 20 October 2021.

Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 11 December 2019, 30 June 2021, 18 August 2021 and 23 September 2021.
In his first statement, the applicant stated that he was employed by the respondent as a field service technician. On 6 February 2017, the applicant was directed to fix a belly guard onto a bulldozer. Whilst doing so, the belly guard fell on the applicant causing serious injury.
The applicant’s ongoing symptoms following the injury included headaches present almost all of the time; and pain, reduced strength and range of motion in the neck and spine, exacerbated by activity.
The applicant stated that he experienced significant problems when driving on account of his chronic pain. The applicant had discussed options with his treating doctors and recommendations were made for the conversion of his vehicle to suspension which would alleviate movements of the vehicle whilst driving.
The applicant underwent an assessment with an occupational therapist who made recommendations for a new vehicle to be supplied. When that claim was rejected by the insurer, the applicant obtained quotes for modifications of his current vehicle.
The applicant stated that his current vehicle was a manual Toyota Land Cruiser Work Mate, with 4 doors and a ute back tray. It was equipped with leaf sprung suspension and had been driven over 200,000 km. The applicant’s wife had a 2016 Subaru Outback 5 door automatic vehicle. The applicant lived with his wife and two young children in the outer suburbs of Canberra.
The applicant said his doctors had certified the new vehicle modifications as an appropriate means of relieving his pain and discomfort. The applicant had tried other alternatives in order to continue to drive his vehicle without pain, discomfort or issues of anxiety. The applicant feared that without this treatment, the applicant’s symptoms would continue to deteriorate to the point that he would not be fit to drive at all.
In his supplementary statement, dated 30 June 2021, the applicant said he experienced ever-growing symptoms in his back and neck from the vibrations and jolts when driving. The applicant needed to drive to attend therapy and other essential services, none of which were close by to his home. The applicant’s wife worked full-time and had limited availability to assist in this regard.
The applicant said his current vehicle was a heavy ride, especially when driving on any uneven surface, which was a common road type in the area where the applicant lived. The applicant stated:
“After two years following my workplace injury, I gradually got behind the wheel to attend therapy and other essential day to day tasks. I soon began to notice that my injuries were much worse after I had been driving. This was especially so in my lower back where I began to get really bad symptoms following the normal vibrations in the vehicle and also when jolting side whilst I went over any sort of uneven surface or bump in the road. I would also get pain in my neck from whiplash motions when the vibrations and jolting from the vehicle were at their worst.”
The applicant said the symptoms caused issues with concentration and he was becoming quite angry and frustrated on the road due to his increasing symptoms.
The applicant said he had been advised by various mechanics and other specialists that modifications to his vehicle would require amendment from time to time with wear and tear, incurring substantial costs on an ongoing basis. Vehicle modifications would not provide anywhere near the same relief of symptoms as the new vehicles proposed. The applicant primarily sought approval for a new vehicle.
The applicant said the vehicles trialled by him provided a substantial degree of relief to the aggravation of his pain and other symptoms.
In his statement dated 18 August 2021, the applicant commented upon the suitability of a number of vehicles identified by him as possessing the features identified in the insurer’s occupational therapy reports as reasonably necessary as a result of his injury.
In his final statement, the applicant responded to the vehicle recommendations made in a further occupational therapy report obtained by the respondent.
The applicant expressed reservations about the trade-in value of his current vehicle. The applicant’s own research indicated that he could trade-in his vehicle for between $30,000 and $35,000. There were not a lot of options or sellers in the Canberra region.
The applicant also indicated that there was limited availability of used vehicles in the region and the costs of transferring ownership and reregistering a used vehicle were considerable.
The applicant identified his main concerns as:

“i.      I am a large, tall man and coupled with my injuries, I require a large vehicle with large entry/easy access into and out of the vehicle,
ii.      360 deg camera and sensors - needed to ensure that I only have to move my neck and back infrequently,
iii.      a large 4WD to provide me comfort and ensure there is enough space for my family,
iv.      Automatic transmission - any manual transmission would be quite taxing.
v.      Same tow capacity as my Toyota- needed in my area.
vi.      Factory Air Suspension - provides a soft ride to ensure the vibrations through the vehicle don't jolt through my body and easy access in and out of the vehicle (to which I struggle due to my injuries)
vii.     Easy to read display - to assist with my visual system so as to ensure I can see as much as to what is happening around me with as little strain on my mind and body.”

Mr Philip Scott

The applicant relies upon an expert report prepared by automotive consulting engineer, Mr Philip Scott, dated 17 December 2020.
Mr Scott was asked to conduct an assessment of the applicant’s Toyota Land Cruiser and give an opinion as to whether modifications to the vehicle were reasonably necessary as a result of the work injury. Mr Scott gave the opinion:
“The modification of the vehicle type currently owned by Mr Basedow is not practical as the improvement in the ride quality of that vehicle will not be increased to the level of quality to relieve Mr Basedow of his discomfort and pain.
The financial outlay to attempt to improve the ride quality of his current vehicle will be well in excess of the costs associated with the purchase of a new standard production vehicle with the desired ride quality that is being sought.”
Mr Scott gave the opinion:
“The certain, and therefore most cost-effective, method to select a suitable motor vehicle that will address the needs, restrictions and limitations of Mr Basedow, is to select a standard production motor vehicle that is suitable by design and build for his needs and is available directly from an Authorised Motor Dealer for that particular chosen manufacturer. The needs of Mr Basedow, both present and into the foreseeable future, have been addressed by the relevant medical and occupational specialists in the various medical assessments and reports that have been supplied for review in this matter.
The Australian motor vehicle market provides a variety of four-wheel drive (4WD) motor vehicles that are designed and built to provide a smooth and well suspended ride for the vehicle occupants. A number of these vehicles are capable of negotiating similar road conditions as the current vehicle owned by Mr Basedow. The examples of these vehicles are the Toyota Landcruiser 200 series Sahara, the Lexus LX 450d or LX570, Nissan Patrol and Jeep Track Hawk.”

Occupational therapy reports

A report from driver trained occupational therapist, Ms Jasmine Price, dated 14 May 2019, noted that the applicant had been able to regain the ability to drive a motor vehicle independently. As part of his rehabilitation, the applicant had worked to increase his driving tolerances and identify any triggers that may increase his pain and limit his abilities. Ms Price stated:
“Over time it has become evident that Mr Basedow has been exposed to low frequency whole-body vibration from the moving vehicle. It has been the unavoidable exposure to more severe up- and down- vibrations experienced when driving on uneven or bumpy road surfaces that has increased Mr Basedow's pain levels and decreased his driving capacities.
A series of conservative vehicle modifications and technique have been trialed to attempt to reduce pain and exposure to whole body vibration. These have included:
• Repositioning of the steering wheel to decrease muscular tension building up through the shoulders and upper back (leading to more severe headaches).
• Ergonomic adjustments of seating including back rake, seat height, adaptive cushions.
• Correct posture and associated driving techniques to reduce musculoskeletal strain
• Regular rest breaks and stretching
Unfortunately, despite these efforts Mr Basedow's pain has persisted. It is therefore recommended that modification to the vehicles suspension be undertaken to reduce the exposure to vibration and excessive up and down motion in the vehicle when encountering variable road surfaces.”
The respondent relies on a series of reports prepared by occupational therapist, Ms Lyndall Cook.
In her first report, dated 11 August 2019, Ms Cook was asked to make an assessment of the applicant’s current functional capacity for driving and review his current vehicle. A trial of alternative vehicles was completed on 11 July 2019 at the applicant’s home.
As at the date of her first report, Ms Cook noted that the current valuation of the applicant’s existing Toyota Land Cruiser was $34,400.
Ms Cook noted a number of issues with the applicant’s current vehicle including, poor suspension, manual transmission, rear axle location and ride quality. Ms Cook concluded:
“As a result of his injuries, Mr Basedow experiences significant pain when driving due to vibrations and body movements from road irregularities spread through his vehicle. This pain impacts upon his driving capacity and also his ability to undertake other daily living tasks post-drive.
Mr Basedow's pre-injury vehicle, a 2012 Toyota Landcruiser Workmate utility vehicle does not provide ride comfort due to the type of suspension spring system, manual transmission and shortened wheelbase; and Mr Basedow demonstrated pain behaviours after 3 minutes of actively driving the vehicle.
To facilitate management of pain when driving Mr Basedow requires a vehicle with a suspension system that provides maximum absorbency of road irregularities and bumps. This can be achieved via a vehicle with coil springs at both the front and rear axle. He requires a vehicle with automatic transmission to reduce forces on the body due to acceleration and deacceleration when changing gears, and a vehicle with a long wheel base to allow even weight distribution of the vehicle and vibrations to be dispersed over a longer area.”
Ms Cook compared a number of vehicles comparable to the applicant’s existing Toyota Land Cruiser which were fitted with the injury related features necessary for the applicant as standard. Ms Cook concluded that a Dodge RAM2500 was the most comparable vehicle. An on-road review of the applicant driving the RAM2500 was completed on 11 July 2019. The trial was reported to be successful with the applicant reporting no triggering of pain.
In a supplementary report, dated 2 September 2019, Ms Cook was asked to address alleged inconsistencies between the applicant’s presentation to Ms Cook in July 2019 and his presentation to Ms Price in February 2019 when his capacity to drive was assessed. Ms Cook noted that Ms Price’s assessment was conducted in a Hyundai i30 with automatic transmission, whereas her own assessment was completed in the applicant’s Toyota Land Cruiser.
With regard to the comparison drive in the Dodge RAM, Ms Cook stated:
“The purpose of this comparison drive in the Dodge RAM was to provide an informed clinical opinion on the suitability of the recommended modification in addressing Mr Basedow's pain and increasing his driving tolerance. At no point did Driver Rehab Solutions imply to Mr Basedow that they were supporting purchase of this exact vehicle.”
It was further noted that an assumption had been made that a return to driving the applicant’s current vehicle was the goal. The applicant had identified that he would like to return to his pre-injury leisure pursuits of off-road driving and camping with his family.
In a further report, dated 7 September 2021, Ms Cook was asked to provide an opinion on the make and cost of vehicles presently available for purchase on the open market which would be suitable for the applicant’s present transport needs and therefore “reasonably necessary” as a consequence of his injury. Opinion was requested on whether late-model, second-hand vehicles nominated as suitable would suffice. A current estimate of the trade-in market value of the applicant’s Toyota Land Cruiser was also requested.
The report was asked to take into account the following assumptions:

·        “The worker is a married man with two children aged 6 and 3. He is 186cm tall and presently weighs 130kg;
·        The worker’s medical condition and symptoms are outlined in his statements of evidence;
·        He resides in a residential area (Gordon ACT) and all roads within his vicinity are sealed bitumen. This is not a rural (or indeed semi-rural) area;
·        In so far as the worker drives to attend medical appointments, to take his children to school and to perform shopping and the like, that driving is performed on bitumen sealed roads;
·        Since the injuries the subject of the claim, the worker has not returned to his pre-injury role and the medical evidence presently available suggests he will be unable to do so in the future;
·        A prominent (and indeed desirable) feature of the Toyota Landcruiser was its ability to transport heavy equipment over difficult terrain in order to service industrial plant, for the purposes of work;
·        A heavy industrial vehicle such as the Landcruiser or similar is no longer required for employment purposes;
·        Due to the worker’s persisting disabilities and regardless of the type of vehicle being driven, he will be incapable of undertaking recreational 4 wheel driving either for the purposes of camping or for any other purpose without experiencing an increase in symptoms;
·        Similarly, regardless of the vehicle being driven, the worker will probably experience an increase in his symptoms should he drive on any surface other than sealed bitumen roads;
·        The proportion of time the worker may be required to drive on unsealed roads (or off road) is/will be minimal due to his physical symptoms and anxiety (see para 49 of this statement dated 11/12/2019 in which he admits ‘I am now incredibly anxious and do not like to go outdoors’);
·        The worker has driven a variety of other cars since his injury including his wife’s Subaru and indeed a Hyundai i30 and found those did not subject him to the type of vibrations experienced in the Landcruiser, and therefore were not productive of the same increase in his symptoms;

·        Where necessary, the worker has utilised the services of uber or taxi transport in the past and these vehicles were not luxury 4 wheel drives fitted with air suspensions;
·        The main indicator for the new vehicle is to facilitate the worker’s more comfortable attendance at medical appointments and the like (including transporting his children to school and undertaking ordinary family activities such as supermarket shopping);
·        The worker will never be able to undertake heavy strenuous/physical activity in the future for which a ute may have been ideal (for example, obtaining gardening supplies from Bunnings or the like).”

Ms Cook gave the opinion:
“Mr Basedow has the following present vehicle needs with regards to his disabilities:
1.      A vehicle that provides a seat to ground height, such that he is able to readily enter and exit the vehicle by pivoting on the seat without having to bend, twist or duck his head.
2.      The vehicle driver’s seat needs to be fully adjustable to allow independent adjustment of the seat for height, fore/aft; backrest incline and seat pan tilt, for achieving optimal seated position for driving. This will ensure Mr Basedow can adjust the seat for transfers and driving position.
3.      A driver’s seat with in-built heat function on seat pan and backrest. Mr Basedow reported driving a vehicle with heated seats assisted with reducing pain intensity in his upper back.
4.      A vehicle fitted with a suspension system that reduces vibration and ride harshness.
5.      Vehicle to have automatic transmission.
6.      Vehicle to be fitted with a reversing camera
Given the above requirements, the body-style of an SUV is considered the most suitable for Mr Basedow. An SUV is a sports utility vehicle typically with a higher ride height, taller doors, and shorter sills to aid access in and out of the vehicle. SUVs range in size from small to mid-size to large. To achieve a seat height for optimal transfers given pain, Mr Basedow requires a mid to large sized SUV. A smaller sized SUV would not provide the seat height or leg room for Mr Basedow to safely transfer or sit in the driver’s seat for driving.”
Ms Cook identified the top six vehicles meeting the applicant’s injury related vehicle needs including:
(a)    Audi Q5 (Q5 Sport) - ACT driveaway price $87,251.90 plus cost of Adaptive air suspension option;
(b)    Audi Q7 (Q7 45TDI Quattro) – ACT driveaway price $116, 811.90;
(c)    VW Touareg (210 TDI Elegance) - ACT Driveaway Price $108,023;
(d)    Mercedes GLC 300e 4MATIC - ACT Driveaway Price $97,959.40;
(e)    Lexus NX (F Sport) - ACT Driveaway Price $72,187, and
(f)    Lexus RX (300 F Sport) - ACT Driveaway Price $98,250.

With regard to the suitability of the applicant’s wife’s 2016 Subaru Outback, Ms Cook noted that this had reportedly been driven for periods of up to 30 minutes with a more comfortable ride quality in comparison to the applicant’s Toyota Land Cruiser. Ms Cook gave the opinion that the long-term suitability of this vehicle must defer to ride quality comparisons with the other identified vehicles. The Subaru Outback had a lower rating for ride quality than the six identified vehicles.
With regard to the Hyundai i30, driven during Ms Price’s driving assessment, Ms Cook gave the opinion that it was reasonable to assume that the applicant minimised his pain reporting and pain behaviours to avoid jeopardising his ability to return to driving in that assessment. Multiple medical and therapy reports documented that the applicant experienced constant pain and required educational techniques for accessing his vehicle. The Hyundai was driven for a period of 50 minutes, which was not indicative of the suitability of the vehicle for everyday long-term use.
Ms Cook estimated that the applicant’s current vehicle, in an average condition, had a trade-in value of $43,980.
In a supplementary report, dated 10 September 2021, Ms Cook was asked to set out the second-hand costs of the large SUVs up to five years old nominated in her previous report dated 7 September 2021. Those vehicles included $73,890 for a 2019 Lexus RX with 47,527 km on the odometer; $84,990 for a 2019 Volkswagen Touareg with 59,322 km on the odometer; and $105,888 for 2017 Audi SQ7 with 62,194 km on the odometer. Ms Cook commented:
“These vehicles have not been trialled with Mr Basedow for access in and out of the driver’s seat or ride quality/comfort. Many earlier models of these vehicles do not provide all the features to meet Mr Basedow’s needs. It is outside my area of expertise to provide opinion on the roadworthiness of any second-hand vehicle.”

Dr Andrew Porteous

The applicant relies on medicolegal reports prepared by occupational physician, Dr Andrew Porteous, dated 6 May 2020 and 2 May 2021.
Dr Porteous took a history of the injury and noted that the applicant sustained a closed head injury, severe facial injuries, dental injuries and sprain injuries of the cervical spine and thoracic spine.
Since the accident, the applicant had ongoing symptoms including chronic cervical and thoracic pain and chronic frontal headaches.
The applicant’s driver’s licence was approved in February 2019 after an Occupational Therapy assessment.
Asked to provide an opinion as to whether vehicle modifications were reasonably necessary, Dr Porteous stated:
“There is a known association between the whole-body vibration and spinal pain. Measuring the frequency of whole-body vibration is very difficult in a vehicle and is very technical. The vibration is in multiple planes.
…
It is unlikely the whole-body vibration can be completely reduced; however, it is likely that it can be dampened significantly to the point to increase Mr Basedow's capacity for driving beyond the one hour, that he said today he can drive now, before he gets his marked increase in symptoms.”
In his supplementary report, Dr Porteous was asked to comment on the report provided by Mr Philip Scott and noted that modifications to the applicant’s existing vehicle were impracticable.

Dr James Bodel

A historical medicolegal report prepared by orthopaedic surgeon, Dr James Bodel, dated 16 January 2019, recorded the applicant’s ongoing symptoms as including:
·        “He has headache;
·        This is occipital and retro-orbital and in the front of the forehead. He describes the frontal headache as a very sharp stabbing pain;
·        He has dull aching pain and also sharp pain at the back of the head and he has pain down the right side of the neck over the top of the right shoulder to about the level of the acromion and then down over the periscapular region of the upper part of the shoulder blade on the right hand side down to the thoracolumbar junction on the right; and
·        Head down posture or use of the arms overhead can aggravate the pain.”

Applicant’s submissions

The applicant submitted that the medical evidence supported the provision of a replacement vehicle as the appropriate course.
The applicant referred to the report of Mr Phillip Scott and his analysis of the applicant’s particular physical requirements with reference to the vehicles available in the market. Mr Scott’s cost/benefit analysis of modification of the applicant’s existing vehicle compared with the provision of a new or near new vehicle was also noted.
The applicant submitted that it was well-settled that the provision of a motor vehicle could constitute a ‘curative apparatus’ for the purposes of s 59. The applicant referred to the decisions in Coomber v Red Funnell Fisheries Newcastle Pty Ltd[1] and Newcastle Regional Public Tenants Council Incorporated v Grant[2] and noted that each case depended on its own particular facts.
[1] [1998] NSWCC 27; (1998) 16 NSWCCR 558.
[2] [2005] NSWWCCPD 2.
The applicant described issues associated with pain in and about the right side of his neck and lower back aggravated and exacerbated by activity as well as the psychological issues associated with his injury. The applicant found it impossible to drive his manual motor vehicle and described difficulties associated with relying on his wife, taxis and Ubers to attend appointments.
The applicant noted that his training and experience as a plant and diesel mechanic was relevant with respect to his input as to the provision of a suitable vehicle and the difficulties with his own vehicle.
The applicant referred to the medical evidence and the occupational therapy reports.
The applicant submitted that there was no challenge to the applicant’s evidence as to the benefits in driving a suitable vehicle compared to the difficulties associated with his present vehicle in the medical evidence. The applicant had undertaken extensive enquiries with respect to identifying the vehicles that would provide him with the most benefit.
The medical evidence, the evidence of the applicant and the evidence from the occupational therapist commissioned by the respondent established unequivocally the need for the provision of a suitable motor vehicle to allow the applicant to care for his young family and have some semblance of a normal life.
The applicant submitted that he should not be left out of pocket in relation to the provision of an appropriate vehicle to ameliorate his symptoms.

The applicant submitted that the opinion of Ms Cook, as expressed in her report of 11 August 2019, on the background of an assessment involving a test drive was the most compelling. Any second-hand options had not been test driven or the subject of an occupational therapy assessment.
The applicant submitted that an order for the provision of a replacement vehicle, new or old up, to a maximum value of $115,000 would be appropriate with the employer to have the benefit of the trade-in value of the applicant’s present vehicle. The figure of $115,000 was said to represent the median value of the vehicles identified as suitable.

Respondent’s submissions

The respondent in its written submissions did not press the dispute with regard to whether the provision of a new vehicle could constitute a ‘curative apparatus’.
The respondent also agreed that any modifications to the applicant’s current vehicle would not be cost/benefit efficient.
The respondent noted the extensive negotiations between the parties at the conciliation conference on 16 September 2021. The key point of contention was the apparent trade-in value of the applicant’s current vehicle. The respondent noted that no trade-in evaluations of the current vehicle had been provided by the applicant. At best, the applicant had made an assertion as to the current trade-in value of his vehicle without providing any detail or contact references to validate his assertion. No written evidence of trade-in valuations had been provided in the proceedings.
The respondent noted that Ms Cook set out six criteria for establishing the applicant’s present vehicle needs having regard to his disabilities. These included a mid to large SUV body type given the applicant’s physical height and build.
The respondent noted that the Volkswagen Touareg and Lexus RX were identified in Ms Cook’s report as suitable having to the applicant’s vehicle needs. The driveway price of a new Lexus was $98,250 and a second-hand cost estimate for a 2021 model was $95,990. The second-hand cost estimate for a suitable Touareg was $94,900.
The respondent noted that the applicant sought an order for the replacement cost of the applicant’s motor vehicle up to $115,000 with credit for the trade-in value of the applicant’s vehicle on completion of purchase.
The respondent submitted that the Commission should make findings regarding suitable vehicles within the total value range of $90,000 to $100,000, identified by Ms Cook, namely the Volkswagen Touareg, the Mercedes GLC and the Lexus RX 300 sport.
The respondent further submitted that in the absence of any trade-in evaluation quotations from the applicant, the Commission ought to adopt the trade-in valuation of $43,990 from Ms Cook in her report dated 7 September 2021.
In the alternative, the Commission should follow the decision of Byron DP in Newcastle Regional Public Tenants Council Incorporated v Grant[3], where an order was made in the following terms:
“Should the parties be unable to agree upon the fair market or trade-in value of the Respondent Worker’s current motor vehicle, a professional valuation of that vehicle is to be obtained and the Appellant Employer is to pay the costs of any such valuation.”
[3] [2005] NSWWCCPD 2.

Applicant’s submissions in reply

The applicant submitted that it was critical that he not be left out of pocket when being compensated under s 60 of 1987 Act.
The need for a vehicle was undisputed.
It was noted that the respondent submitted that a monetary limit ought to be imposed upon the value of the vehicle to be supplied and an estimated trade-in value. The applicant submitted that he and his family should not be left out of pocket for the accepted need for the provision of an appropriate vehicle in order to ameliorate the symptoms suffered by the applicant as a consequence of the workplace injury.
The applicant submitted that the preferable course was for the Commission to make findings as to what was appropriate in the circumstances of the case rather than ascribing dollar values to the claim. Trade-in values may be higher or lower than those estimated in the materials. The insurer would benefit from any higher trade-in value. On the other hand, the worker should not be penalised for the failure, given market forces, to obtain an equivalent trade-in value.
It was submitted that this approach would achieve fairness in the circumstances, particularly by reference to the beneficial nature of the legislation and the requirement that the worker be compensated with respect to the injury and loss.

FINDINGS AND REASONS

79.Section 60 of the 1987 Act relevantly provides:

“60 Compensation for cost of medical or hospital treatment and rehabilitation etc

(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,

the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”

80.The expression “medical or related treatment” is defined in s 59 of the 1987 Act to include,

“(a)    treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b)     therapeutic treatment given by direction of a medical practitioner,
(c)     (Repealed)
(d)     the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e)     any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f)      care (other than nursing care) of a worker in the worker’s home directed by a medical practitioner having regard to the nature of the worker’s incapacity,
(f)      domestic assistance services,
(g)     the modification of a worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity, and
(h)     treatment or other thing prescribed by the regulations as medical or related treatment,
but does not include ambulance service, hospital treatment or workplace rehabilitation service.”

81.As noted by the parties, the provision of a motor vehicle has been held to be a ‘curative apparatus’ for the purposes of the definition in paragraph (e) in a number of cases. In Bresmac Pty Ltd v Starr[4], the trial judge had awarded the worker, a quadriplegic, the cost of purchasing a new vehicle on the basis that it was a curative apparatus within paragraph (e) of the definition of ‘medical or related treatment’. The Court of Appeal held that the decision at first instance was correct.
[4] (1992) 8 NSWCCR 601.

82.However, in Coomber v Red Funnell Fisheries Newcastle Pty Ltd[5] the provision of a new motor vehicle with power steering and automatic transmission was held, on the facts in that case, not to be a curative apparatus. The injured worker had suffered permanent impairment of the back and a loss of the efficient use of his left leg. His old car was low to the ground and had manual transmission. The injured worker said that he had difficulty in operating his old car because of its small size and the manual transmission. In rejecting the claim for the new car, the Court awarded what it would have cost to install automatic transmission in the worker’s current motor vehicle.
[5] [1998] NSWCC 27; (1998) 16 NSWCCR 558.
83.After reviewing the authorities in Newcastle Regional Public Tenants Council Incorporated v Grant[6][ (Grant), Byron DP stated:
[6] [2005] NSWWCCPD 2.
“In each of these cases, the question as to whether the items could be regarded as ‘curative apparatus’ was decided on its own particular facts and circumstances. An item itself is not necessarily, an inherently ‘curative apparatus’. The authorities indicate that in order for an item to fall within the definition of ‘medical or related treatment’ in section 59 of the 1987 Act, there must be a ‘curative’ or therapeutic element offered by the item to an injured worker, in his or her particular circumstances, that deals with and assists in some therapeutic way, the management of his or her physical or psychological condition. Notwithstanding that an item may be personally preferable to another item, or is considered to be convenient or desirable, will not qualify, unless it can have some therapeutic impact.”

84.Although the applicant has claimed the provision of a motor vehicle or, in the alternative, modifications of his existing vehicle in these proceedings, the evidence before me, particularly that contained in the report of Mr Scott, clearly indicates that vehicle modifications would not be cost-effective or practical in the applicant’s circumstances.
85.The respondent has agreed with this conclusion and conceded that the provision of a motor vehicle could constitute a curative apparatus in the circumstances of the applicant’s case. The authorities referred to above, however, indicate that for a vehicle to be a ‘curative apparatus’ it must offer a therapeutic element that deals with and assists in a therapeutic way with the management of the applicant’s injury. Matters of personal preference, convenience or desirability will not be relevant unless they have some therapeutic impact.
86.The reports of the occupational therapist qualified by the respondent identify a number of therapeutic features considered to be reasonably necessary in alleviating the symptoms experienced by the applicant when driving as a result of his injury. These include:

(a)    a body type such as a sports utility vehicle with a seat to ground height sufficient to enable the applicant to enter and exit the vehicle by pivoting on the seat without having to bend, twist or duck his head;
(b)    a fully adjustable driver’s seat to achieve optimal seated position for driving;
(c)    a driver’s seat with an inbuilt heat function on the seat pan and backrest to assist with reducing pain intensity in the applicant’s upper back
(d)    a suspension system that reduces vibration and ride harshness;
(e)    automatic transmission, and
(f)    a reversing camera.

87.In addition to the above features, the applicant has identified a number of other features regarded by him as important including:
(a)    a large 4WD vehicle with enough space for his family;
(b)    a tow capacity equivalent to his existing Toyota Land Cruiser;
(c)    ventilated heated and cooled seats;

(d) an easy to read display to assist with the applicant’s visual system.

It is not clear that each of the additional features identified by the applicant is of therapeutic benefit having regard to the nature of the applicant’s injuries. Whilst an SUV body type has been identified as most therapeutic having regard to the seat to ground height, there is no evidence from an occupational therapist or other expert to indicate that a four-wheel-drive is necessary in order to provide therapeutic benefit to the applicant. Nor is there any evidence to suggest that a tow capacity equivalent to the applicant’s existing vehicle would assist in some therapeutic way to the management of the applicant’s symptoms. Although the applicant has suggested that such features are necessary given the area in which he lives, the evidence indicates that the applicant in fact resides in a residential suburb of Canberra and would ordinarily be driving on bitumen sealed roads. It is not apparent what towing or off road driving the applicant is reasonably likely to be performing in the foreseeable future.
Nor am I satisfied that the provision of a vehicle with other equivalent or comparable features to the applicant’s existing vehicle is necessarily of therapeutic or “curative” benefit to the applicant. The applicant’s current vehicle is described in the evidence as a utility vehicle equipped with features that would have assisted the applicant in the performance of his pre-injury work. The applicant is, however, certified as having no current work capacity, and there is no suggestion that the applicant is likely to have capacity to return to similar work in the reasonably foreseeable future.
For this reason, I am not satisfied that the approach taken in Ms Cook’s 11 August 2019 report of identifying the vehicle with the reasonably necessary therapeutic features that was most comparable to the applicant’s existing vehicle, is appropriate in applying the test in s 60 of the 1987 Act. It is of note that the Dodge RAM assessed in that report did not feature in the list of the most suitable vehicles identified in Ms Cook’s subsequent report of 7 September 2021. Similarly, I am not satisfied that Mr Scott was asking the correct question when he identified the vehicles capable of negotiating similar road conditions as the applicant’s current vehicle (including the Toyota Landcruiser 200 series Sahara).
I do accept that the applicant will need to use a vehicle to attend to his normal activities of day to day living including attending his own medical appointments and, for example, transporting his children to school and their other activities. I accept that the vehicle should be capable of accommodating the applicant’s wife and two children.
I am also prepared to accept that an easy to read display would be of therapeutic benefit having regard to the nature of the applicant’s injuries. It is not, however, suggested that any of the vehicles identified in the occupational therapy reports lacks this feature.
Whilst the therapeutic benefit of heated seats has been identified in Ms Cook’s reports, I am not satisfied on the evidence before me that there is a particular therapeutic benefit to having “ventilated” and “cooled” seats.
Ms Cook has, in her report of 7 September 2021, identified the top six vehicles which possess the therapeutic features identified by her as reasonably necessary in the applicant’s circumstances. That evidence was not challenged by the respondent’s submissions or other evidence.
The applicant has, however, given his own views as to the suitability of each of those vehicles. The applicant has expressed the view that the Audi Q5 Sport lacks many of the therapeutic features identified as reasonably necessary including air suspension, heated seats and an entry and exit height that is too low. The applicant claims that the Audi Q7, Mercedes GLC 300d 4 MATIC and both Lexus vehicles also lack air suspension or heated seats.
I note that the applicant’s claims in this regard are not consistent with Ms Cook’s expert evidence. Ms Cook has identified that air suspension or other suitable suspension systems and heated seats are available as standard or optional extras in each of these vehicles. The applicant’s own claims are not supported by any other evidence from the vehicle manufacturers. The applicant’s assertion that his family would not fit comfortably in some of these medium to large SUVs is also unsubstantiated. As indicated above, I am also not satisfied that towing capacity is a relevant consideration.
Whilst I would not be prepared to accept the applicant’s evidence over that of Ms Cook on such matters, it is relevant that the applicant does not appear to seek compensation in the form of the provision of those vehicles.
The applicant does accept that the Volkswagen Touareg (210TDI Elegance) possesses all of the necessary features to alleviate his symptoms whilst driving. Ms Cook described the features of this vehicle as including:
“The Touareg is a large SUV which provides heated, fully adjustable driver seat and reversing camera with multi-angle views. It would provide appropriate transfer height for Mr Basedow. The vehicle comes fitted with 4 corner airbag suspension and adaptive dampening control to adjust the suspension to the road and when cornering.”
The applicant’s response was as follows:
i.     “Good: entry & exit,
ii.     Very good seating position,
iii.    Very comfortable heated & ventilated seats,
iv.    Air suspension,
v.     360 degree camera,
vi.    3500kg tow capacity,
vii.    Vehicle available locally as of 18.09.2021”.
The applicant has, in his most recent statement, identified a number of other vehicle options which would, in his opinion, meet his therapeutic needs. Whilst I accept that the applicant has some expertise in this field, it is noted that that no independent expert opinion has been provided as to the suitability of these vehicles and no sources have been supplied to support the applicant’s contentions as to the vehicles’ relevant features.
It is also relevant to note that each of these other vehicles, as well as the Dodge RAM2500 and Mercedes GLS400D previously sought, is considerably more expensive that the Touareg, ranging in price from $117,980 to in excess of $222,000.
The ACT driveaway price of a new Touareg (210TDI Elegance) was identified by Ms Cook as $108,023. In addition, in her most recent report, Ms Cook identified a number of used Touareg models possessing the same features, ranging in price from $84,990 to $99,990.
In applying the test in s 60, the Commission must be satisfied that the treatment proposed is “reasonably necessary” as a result of the injury. What constitutes reasonably necessary treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[7] where Burke CCJ stated:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[7] (1986) 2 NSWCCR 32 (Rose).

Further, His Honour added:

“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”

In Diab v NRMA Ltd[8], Roche DP provided a summary of the relevant principles as follows:
[8] [2014] NSWWCCPD 72.

“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)     the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)     the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[9]
[9] At [88] to [90].

Applying these authorities in the present case, I am satisfied on the evidence before me that the Touareg 210TDI Elegance and 190TDI Premium models identified by Ms Cook constitute appropriate ‘curative apparatuses’ insofar as they possess the relevant features identified as capable of alleviating the symptoms experienced by the applicant whilst driving as a result of the work injury.
There are undoubtedly other vehicles which possess the same features available on the market. Ms Cook’s reports identify five other vehicles that may be categorised in this way although the applicant’s statement evidence raises questions around the appropriateness of those vehicles. The applicant has also suggested a number of other vehicles with the same therapeutic features. The applicant has not, however, provided evidence from a qualified expert, the manufacturers or other appropriate source confirming the presence of the relevant therapeutic features of some of those models. The relatively more expensive cost of those vehicles in comparison to the Touareg models proposed by Ms Cook weighs against an acceptance of those vehicles as reasonably necessary. The availability of a vehicle with the same therapeutic features at substantially lower cost than, for example, the Dodge RAM2500, Mercedes GLS400D or Toyota Sahara, suggests they are not “reasonably necessary”. The fact that those vehicles possess features that may be personally preferable or more desirable to the applicant is not sufficient to render them reasonably necessary curative apparatuses.
The evidence of the occupational therapists, medical practitioners and the applicant’s own evidence suggests that the therapeutic features of the Touareg models are accepted as likely to be effective in alleviating the applicant’s symptoms.
I have given consideration to the applicant’s submissions with regard to the appropriate orders in this case. I am not satisfied that a general order for a replacement vehicle, new or old up, to a maximum value of $115,000 is consistent with the requirements of ss 60 and 59. It is the particular features of the Touareg models identified in the evidence which render them both curative apparatuses and reasonably necessary treatment having regard to the applicant’s work injury. I am not satisfied on the evidence currently before me that the other vehicles suggested by the applicant satisfy those same requirements.
I do accept that a degree of flexibility is required in the Commission’s orders. Whilst a used vehicle may provide the same therapeutic benefits of a new vehicle but at a lower price, the availability of that particular model at a time and location proximate to the applicant is not guaranteed. The cost of transporting such a vehicle to the applicant’s location may in fact exceed the cost of a new vehicle. It is noted that none of the used vehicles identified in Ms Cook’s most recent report were in the ACT, but were rather in Dubbo, Sydney, Victoria and Queensland.
I do accept that the respondent should have the benefit of the fair trade in value of the applicant’s current vehicle. That is also a matter giving rise to some uncertainty on the current evidence. Ms Cook has recently placed the trade in value of the vehicle at $43,980. The same vehicle was, however, estimated to have a trade in value of $34,400 in Ms Cook’s August 2019 report. The applicant’s own estimate of the trade in value was $30,000 - $35,000.
The market or trade in value of the applicant’s vehicle is clearly subject to market fluctuations and is capable of change. In the absence of a recent quote or written valuation, I am not confident that either Ms Cook’s or the applicant’s estimates provide a sound basis for making an order. I accept that the applicant should not be left out of pocket by the terms of the Commission’s orders.
In all the circumstances, I am satisfied that the alternative approach proposed by the respondent, and that taken in Newcastle Regional Public Tenants Council Incorporated v Grant[10], constitutes the appropriate course.

SUMMARY

[10] [2005] NSWWCCPD 2.

The Commission orders:
(a) The respondent to pay as compensation under s 60 of the 1987 Act, the applicant’s expenses for the supply to the applicant of a new or late model Volkswagen Touareg 210TDI Elegance or 190TDI Premium vehicle, including:
(i)a fully adjustable driver’s seat with inbuilt heat function on the seat pan and backrest;
(ii)airbag suspension;
(iii)automatic transmission, and
(iv)reversing camera,
less the fair market or trade-in value of the applicant’s current motor vehicle, as the circumstances dictate.
(b) Should the parties be unable to agree upon the fair market or trade-in value of the applicant’s current motor vehicle, a professional valuation of that vehicle is to be obtained and the respondent is to pay the costs of any such valuation.

[2021] NSWPIC 457

16 November 2021