Birch and Military Rehabilitation and Compensation Commission

[2005] AATA 894

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 894

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/256

GENERAL ADMINISTRATIVE   DIVISION		)
Re		MELISSA BIRCH

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member L. Hastwell

Date13 September 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review. 

…...........................................

L.Hastwell

(Senior Member)

CATCHWORDS

COMPENSATION – aids and appliances –reasonableness of request for appliance – consideration of other services and aids already supplied -decision affirmed

Safety Rehabilitation and Compensation Act 1988 s39

REASONS FOR DECISION

13 September 2005 Senior Member L. Hastwell

1.      In November 2003 Comcare (the respondent) determined that it would not accept liability for the purchase of a hand held leaf blower for the use of Ms Birch on the basis that this item was not reasonably required by her given the nature of her impairment and because she was already provided with gardening services to assist with the outdoor management of her home.

2.      That decision was subsequently amended on the 15 January 2004 by varying the description of the appliance from a “hand held leaf blower” to a “Vac-sac power blower” but otherwise the decision to deny liability for the purchase of this appliance was confirmed.  Upon reconsideration the decision was affirmed on 3 May 2004.  Ms Birch (the applicant) has applied to the Tribunal for a review of that decision.

BACKGROUND

3.      The applicant is 54 years of age.  She was injured in the course of her duties some years ago while a member of the Australian Army Reserves. The Respondent has previously accepted liability for injuries to her left and right shoulder, back, right knee and for an adjustment disorder with mixed anxiety and depressed mood condition. Payments for compensation and for permanent impairment have been made.

4.      The respondent has previously provided the applicant with some household services and aids and appliances, including the supply of a Kirby vacuum cleaner, gardening assistance, payment for kitchen alterations and the provision of various long handled cleaning aids.

5.      The applicant has now asked that the respondent pay for a Vac-sac power blower which she would like to purchase. She contends that this appliance is necessary to assist her in maintaining outdoor paved areas of her home that otherwise she has difficulty maintaining because of her accepted disabilities.

ISSUES

6.      The Tribunal must determine whether her compensable injuries entitle her to compensation for the purchase of a Vac-sac leaf blower. In determining that issue the Tribunal must determine:

(1)     Whether the purchase of a Vac-sac is required as a direct result of her impairments (rather than an item which would be required or desired by most people, regardless of their impairment status).

(2) Whether this appliance is reasonably required by the applicant given the nature of her impairment.

LEGISLATION

7.      The relevant legislation is contained in s39 of the Safety Rehabilitation and Compensation Act 1988 (the Act).The relevant provision provides as follows:  

“Compensation payable in respect of certain alterations

etc.

(1) Where:

(a) an employee suffers an injury resulting in an impairment; and

(b) the employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program;

the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee, of:

………

(e)any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances;

being …….. 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.

(2) The matters to which the relevant authority shall have regard in determining the amount of compensation payable in a particular case under subsection (1) include such of the following matters as are relevant in that case:

(a) the likely period during which the alteration, modification, aid or appliance will be required;

(b) any difficulties faced by the employee in gaining access to, or enjoying reasonable freedom of movement in, his or her place of residence or work;

(c) any difficulties faced by the employee in gaining access to, driving or enjoying freedom and safety of movement in, a vehicle used by the employee;

(d) any alternative means of transport available to the employee;                    

(e) whether arrangements can be made for hiring the relevant aid or appliance;

(f) when the employee has previously received compensation under this section in respect of an alteration of his or her place of residence or a modification of a vehicle and has later disposed of that place of residence or vehicle—whether the value of that place of residence or vehicle was increased as a result of the alteration or modification.”

8.      The applicant represented herself at the hearing. The respondent called Kathy Trankalis, an occupational therapist, to give evidence. The State Manager of Kirby Vacuums provided a demonstration of Kirby vacuum cleaners for the Tribunal. The Tribunal had regard to the T documents and other exhibits tendered in the course of the hearing.

CONSIDERATION AND FINDINGS

9.      In giving her evidence the applicant made it quite clear that her heart is set on owning a Vac-sac and she showed no willingness to accommodate any other suggestions as to how she could deal with management of the outdoor paved areas of her garden. She has seen a Vac-sac demonstrated at a garden centre and she is now intent on owning this particular brand of garden vacuum despite evidence that such an appliance is not suitable for her use in any event given the nature of her disability. She wants the respondent to pay for this item even though she already has gardening services provided and she also owns an indoor outdoor vacuum.

10.     The Tribunal makes the following findings based on all the material before the Tribunal:

·     The applicant resides in a 4 bedroom home and around the home there is a concrete paved area.

·     The applicant owns 2 large dogs and has a problem with dog litter in her back yard which needs to be cleared up regularly. Leaves and sand also blow into her yard from time to time as she lives  close to the beach

·     The applicant was assessed by an occupational therapist at her home in1998 at which time there was no established garden at her property.  As a result of that assessment various aids were recommended including the provision of long handled cleaning aids and a Kirby vacuum cleaner. 

·     The Kirby vacuum cleaner has an indoor/outdoor capacity and can be used to clean hard surfaces including outdoor paving.  In that regard the Tribunal refers to the evidence of Ms Trankalis and the demonstration given by the state manager of Kirby vacuum cleaners. The applicant could use her Kirby Vacuum more effectively by utilizing its outdoor cleaning function but she elects not to do so.

·     The applicant has been assessed for and currently receives gardening assistance of 3 hours per fortnight.  Her home is situated on a standard size suburban block with lawn, some trees and also paved areas.

·     She elects to use her gardener to assist with landscaping.  Her gardener could assist her with clearing paved areas and she could also rearrange the gardener so that he came on a weekly basis. She chooses not to do so.

·     The applicant does not wish to dirty her Kirby vacuum cleaner by using it outdoors and using it to pick up dog litter.

·     A Vac-sac is not appropriate for the applicant’s use because of the strain it would place on her lower back, shoulder and knee injuries. In that regard the Tribunal accepts the evidence of Ms Trankalis. The Tribunal finds as a fact that to use the Vac-sac a person must adopt a slightly stooped position with arms extended forward. This stooping position with arms extended would be likely to increase the strain to the applicant’s lower back, shoulders and knees. Some force is also required to propel the machine using extended arms.  This motion would add further strain to the applicant’s shoulders and back.

·     A Kirby vacuum cleaner can be adapted for use on hard surfaces as it has an electric broom component.

·     A long handled cleaning implement could be used by the applicant to collect dog litter.

THE APPLICATION OF THE LAW

11.     Section 39 of the Act provides that aids can be provided to a person who has suffered impairment where such aids are reasonably required having regard to the nature of that person’s impairments.  The Tribunal must also consider the matters set out in s39 (2) of the Act.  None of those matters are relevant to this case.

12.     The Tribunal is satisfied that it is not reasonable for the applicant to be provided with the Vac-sac as requested.  Her impairments are of such a nature that a Vac-sac is not a suitable garden implement for her to physically use in any event. The Tribunal relies on the evidence of the occupational therapist in that regard.

13.     Nevertheless even if the Vac Sac was a suitable appliance for the applicant’s use, the Tribunal is satisfied that the test of reasonableness as set out in the Act is not satisfied.

14.     The applicant has been provided with a Kirby vacuum cleaner which is capable of clearing outdoor areas.  The applicant does not wish to use her existing vacuum cleaner to collect dog litter and leaves from outdoor paved areas of her home. That is her choice but it is not reasonable that the respondent be asked to provide an additional appliance to accommodate her decision.

15.     The applicant elects to use her gardener for other purposes. Once more, that is her choice but one that the respondent should not be asked to accommodate by providing the additional aid requested.

16.      A long handled implement can be used for the collection of dog litter.  The Kirby vacuum which has already been provided by the respondent is also capable of clearing any leaf litter. The gardening assistance could also be used in a more efficient way.

17.     In the circumstances, the Tribunal is satisfied that a Vac-sac is not reasonably required by the applicant given the nature of her impairments and given the other aids and assistance that have already been provided to her by the respondent.

18.     The Tribunal affirms the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of L HASTWELL

Signed:         .....................................................................................
  Associate

Date/s of Hearing  18 July 2005
Date of Decision  13 September 2005
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms S. Maharaj
Solicitor for the Respondent     Phillips Fox