Cooper v VWA

[2016] VMC 24

IN THE MAGISTRATES COURT OF VICTORIA

AT LATROBE VALLEY

WORKCOVER DIVISION

Case No. F13994674

TERRY COOPER	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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MAGISTRATE:	S GARNETT
WHERE HELD:	LATROBE VALLEY
DATE OF HEARING:	7 DECEMBER 2016
DATE OF DECISION:	12 DECEMBER 2016
CASE MAY BE CITED AS:	COOPER v VWA
MEDIUM NEUTRAL CITATION:	[2016] VMC024

REASONS FOR DECISION

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Catchwords: Rejection of an application for the provision and payment of a trailer for a motorised scooter – aid/appliance: whether provision of a trailer is ‘reasonable and necessary’ in all the circumstances.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Horner	John McCristal Injury Lawyers
For the Defendant	Mr Richards	Minter Ellison

HIS HONOUR:

1       Mr Cooper is 60 years of age and sustained significant back injuries as a result of a fall from a ladder on 4 May 1991 whilst working in his own business, Cooper Drums Pty Ltd, which was a drum recycling business he established in 1983.

2       The evidence revealed that he sustained earlier back injuries in 1986 for which he underwent laminectomies in 1987 and 1990. As a consequence of the injury on 4 May 1991 he underwent a lumbar fusion operation at the L4/5 and L5/S1 levels performed by Mr Pease on 7 June 1996. He has remained off work since 4 May 1991 and remains in receipt of weekly payments of compensation. Mr Cooper told the court that in 1998 he moved from Pascoe Vale and commenced residing on Raymond Island because he was suicidal and had a support network on the Island.

3       On 6 July 2011, Xchanging agreed to pay for the cost of a motorised scooter and other aids and appliances including; a Queens size bed, toilet frame, a hand rail in his shower, shower stool, hand held shower, computer chair, mid back chair and an extra 1.5 hours of household help per fortnight. The Agent refused to approve the costs associated with the purchase of a trailer for his scooter at that time on the basis that it wanted him to ‘trial the scooter for a period of not less than 3 months and are confidently manoeuvring the scooter in your home environment’.

4       Mr Cooper made a further request for payment of a scooter trailer costing either $7,600 or $7,800. On 25 November 2014, Xchanging refused his request on the grounds that; the cost of the scooter trailer was not reasonable in the circumstances; the scooter trailer was of no clear benefit to him and it would be unlikely to assist in increasing his functional or work capacity.

5       Mr Cooper seeks an order that the costs associated with the purchase of the trailer is a reasonable medical and like expense. The defendant contends that the claimed expense is not reasonable and/or appropriate, that the trailer will provide no clear benefit to him and is unlikely to assist in increasing his functional or work capacity.

6       Mr Cooper gave evidence that since the operation in 1996 he has suffered from chronic pain in his back and neck and has been under the care of Dr Vallipuram, Pain Specialist, who administers radio frequency denervation procedures and facet joint blocks on his back and neck twice a year. He told the court that he is prescribed diazepam and analgesics and suffers from depression and agoraphobia all of which severely restrict his activities of daily living and his social activities. He also told the court that he suffers from diastasis of the recti due to past codeine use and is prescribed Zantac and Celebrex for that condition.

7       Mr Cooper told the court that he was provided with the motorised scooter because of his back pain, lack of mobility and depression which resulted in him being housebound. He said he needed it to “get off the Island”.  He said that he uses the scooter everyday although it is difficult to manoeuvre over uneven ground and that he rarely drives his car except for short distances. He said that he travels by taxi when he has to go to Melbourne to see Dr Vallipuram or to attend medical appointments for WorkCover.

8       Mr Cooper said that he requires a trailer for his scooter so that he can “visit friends off the Island” as he is “going mad” by being confined on it as his support network is no longer there. In cross examination, he told the court that he uses the scooter every day but only drives it for a maximum distance of approximately 20 houses or for approximately 10-20 minutes. He said that he can walk without using the scooter but it is painful. Mr Cooper said that the distance from his house to the ferry to get off Raymond Island would be about 20 houses but he does not go on the ferry as he is scared and will not go out in daylight hours. He agreed that the reasons he was initially provided with the scooter was to increase his mobility in his neighbourhood and to allow him to shop independently. However, he said he does not use it to go shopping and arranges for another person to do it for him because of his back pain and his agoraphobia. He also said that he uses a walking stick when he is not at home as he “does not feel safe without it”. He said that he does not like driving during the day because “the light affects him”.

9       During cross examination, Mr Cooper agreed that he told Dr Gill, Psychiatrist, who assessed him on 20 June 2016 that; “he stays at home and keeps himself in the dark and rarely goes out except when he has someone with him for support”. He also agreed that he told Associate Professor Myers who assessed him on 29 August 2016, that; “through the day he stays inside in his house…. and he has not driven a car for several years”. Mr Cooper clarified this statement by telling the court that he did not include driving to the letterbox around the corner from his house as driving. He agreed with the suggestion that his anxiety and agoraphobia greatly impacts him and that his back and neck pain restricts the length of time he can sit and his ability to use the scooter. He said that when he has to go to Melbourne he stays with friends. He said that he cannot leave Raymond Island on his own and cannot drive himself from the Island. However, he said that he needs the trailer for his scooter so that he can leave the Island to see his friends as the Island is like a “prison”. He said that it has been a number of years since any of his friends have been able to pick him up from the Island and he has not requested them to do so.

10      During cross examination, surveillance material was shown to the court depicting Mr Cooper’s movements on 15 June 2016. The surveillance footage depicted him driving his car to the jetty car park on Raymond Island at 11:05 a.m. and then proceeding to walk to the jetty area without the aid of a walking stick and standing and leaning against a post whilst talking to people situated in a boat for approximately 5 minutes. The surveillance material then depicted him walking back to his car without the aid of a walking stick. When questioned as to why he had given evidence to the court that he only drives his car at night and only for the purpose of posting letters in order to avoid people he said that he had to attend the jetty that day in order to return a camera that had been lent to him by one of the men he was talking to. When questioned as to why he was able to walk to and from his car without the aid of his walking stick he told the court that he was able to do so because when he was talking to them he was able to lean against a post on the pier for support. He also said that prior to going to the jetty he had taken Valium to relieve his pain.

11      Mr Cooper agreed that although the original purposes for him obtaining the scooter in 2011 was to allow him to become independent and do his own shopping, he had never used it for these purposes. He disputed the suggestion that obtaining a trailer for his scooter would be of no benefit to him and said that he needs it “to get off the Island”.

Occupational Therapy Reports

12      A report prepared by Wendy East from CRS Australia, dated 24 June 2011, noted that the author of a prior report recommended the provision of a scooter trailer once Mr Cooper had used the scooter consistently for a period of 3 months. Ms East, when reviewing that recommendation, reported that Mr Cooper accepted that one of the factors that would influence his ability to use the scooter would be his ability to overcome his social phobia. She noted that he suffers from panic attacks in public which limits his ability to spend time away from his home. She also reported that Mr Cooper would need to gradually increase the time he spends away from home on his scooter while he builds confidence and given the cost of the trailer ($4,460), she believed that it was reasonable to delay its purchase until he was able to mobilise locally on his scooter. She also noted that Mr Cooper did not drive and was reliant on other people using the trailer to take him away to other areas in Victoria to stay with them. She did not believe that delaying his ability to do this would have a detrimental effect on his ability to overcome his anxiety and to use his scooter independently in his local environment on Raymond Island or to go to Paynesville on the ferry to shop or access other services.

13      A report prepared by Ms Pringle from nabenet dated 29 September 2014, recommended that Mr Cooper continue to receive household cleaning services, gardening services, attendant care and gutter clearing but not window cleaning as this task does not fall within the VWA guidelines. Ms Pringle reported that Mr Cooper presented with an extremely limited mobility where he ambulated with a walking stick and told her that his pain restricts him to his bedroom and he was fearful of leaving his house as he had sustained falls in the community. She noted that he was receiving household services including; dusting, cleaning of his bathroom and toilet, vacuuming, mopping, the picking up and delivery of his medications, food shopping, the collection of mail and lawn mowing and gardening services. She reported that he told her that he was unable to access the community due to his reduced mobility. Ms Pringle noted that Mr Cooper had been provided with; a shower stool, raised toilet seat, motorised scooter, adjustable bed, a high backed chair and pick up stick.

14      A report prepared by Mr Pumpa from workable, dated 6 November 2014, was prepared following an Activities of Daily Living Assessment conducted on 23 October 2014. Mr Pumpa reported that Mr Cooper told him that he has limited mobility as a result of his back and neck injury and was unable to walk further than 20 metres at a time. Mr Cooper told him that he had developed anxiety and depression and that his treating doctor believed his condition would be assisted by him visiting friends and family who reside in the Melbourne area. Mr Cooper told him that when visiting family and friends he would require his scooter to remain independent and that he finds it difficult to access his local community due to his anxiety when he is out in public and finds it is difficult to go further than his letterbox during daylight hours. Mr Cooper also reportedly said that he did not currently drive although expected that his friends would be able to drive and pick him up and the scooter when he does go to visit them which may occur no more than 3 to 4 times per year.

15      Ultimately, after referring to the VWA guidelines which indicate that the provision of equipment to aid mobility, function and community involvement is appropriate, Mr Pumpa concluded that although the provision of a trailer would provide Mr Cooper with greater independence outside of his local community, it is not an item that would be required on a regular basis and therefore was not reasonable.

Medical Evidence

16      Dr Ng provided a report dated 8 September 2015 and noted that Mr Cooper self manages his chronic pain and psychological condition and relies heavily on his neighbours and friends to function at a very low level living in an isolated area of East Gippsland. He noted that Mr Cooper suffers from chronic neck and lower back pain with a severe major depressive and panic disorder, including agoraphobia. He reported that Mr Cooper has very poor mobility and his psychological condition severely impairs his social activities. Dr Ng had previously reported that Mr Cooper required an escort and a wheelchair for his transport including at all medical appointments in Melbourne. In a supplementary report to Xchanging dated 30 September 2015, he supported the provision of a trailer for his scooter as it would help him access more terrain (including homes of his friends) which in turn would benefit the management of his severe agoraphobia and panic disorder.

17      Dr Mutton, Occupational Physician, assessed Mr Cooper for Xchanging on 25 June 2015 and provided a report dated 6 July 2015. Mr Cooper told Dr Mutton that he is independent in terms of personal care but does have assistance with homecare, cleaning, weekly shopping, gardening, lawn mowing and general house maintenance. Mr Cooper told him that he does have a motor vehicle but rarely drives it and when he does so, he may drive to the letterbox which is only metres away. He also told him that he has been provided with a mobility scooter which he also uses to access the letterbox but it aggravates his back condition. Mr Cooper told Dr Mutton that he was provided with the mobility scooter principally for his social isolation and to improve his mental state. Dr Mutton opined that Mr Cooper has no current work capacity, suffers from chronic pain affecting his neck, lower back and legs, is barely independent in terms of activities of daily living, should not drive and should not use public transport.

18      Associate Professor Myers assessed Mr Cooper on behalf of his lawyers on 29 August 2016. Mr Cooper told him that has not driven a car for several years and receives assistance in the form of home help. Associate Professor Myers noted that Mr Cooper uses a walking stick and expects a gradual deterioration in his condition which will continue to progressively interfere with his leisure activities.

19      Dr Stern, Psychiatrist, assessed Mr Cooper on 26 June 2015 for Xchanging. Mr Cooper told him that he suffers panic every day with palpitations and shortness of breath and spends his time at home with the curtains closed. Mr Cooper told him that he drives occasionally for very short distances and receives assistance in the form of home help and gardening. Dr Stern diagnosed that Mr Cooper suffers from chronic major depression and a panic disorder and is psychiatrically incapacitated for all employment.

20      Dr Gill, Psychiatrist, assessed Mr Cooper on behalf of his lawyers on 20 June 2016. Mr Cooper told him that he stays at home and keeps himself in the dark and rarely goes out except when he has someone with him for support. Dr Gill diagnosed that Mr Cooper suffers from a panic disorder with agoraphobia and associated depression and that he is highly restricted by his severe anxiety and agoraphobia and heavily reliant upon his neighbours. He considers that the provision of a trailer for a mobility scooter is appropriate as Mr Cooper had indicated to him that if he had such a trailer he would have the potential to move his scooter to places where he could spend time with family or friends and this would assist him in reducing his isolation and his struggle with agoraphobia. Dr Gill noted that Mr Cooper would require support persons to accompany him on any travel but from a psychiatric perspective it would be appropriate for him to be given support and encouragement to pursue this approach which might mitigate his overall level of social impairment and anxiety.

Conclusion

21      The question of whether the defendant is liable for the cost of the scooter trailer is to be determined by considering whether it is a ‘reasonable and necessary’ aid after taking into account all of the relevant circumstances of the case. The test of ‘reasonableness’ is to be given an objective interpretation. Ultimately, the question to pose is; whether the scooter trailer is an aid that is ‘reasonably and necessarily’ required having regard to the nature and extent of the injuries sustained by Mr Cooper and their impact on his activities of daily living?

22      There is no dispute that Mr Cooper has sustained severe and disabling injuries. He has been in receipt of weekly payments of compensation for over 26 years and is likely to remain in receipt of payments until 65 years of age. He lives in an isolated location and because of his physical impairment and consequential psychiatric condition he has developed agoraphobia and suffers from panic attacks. Whilst I find that he has attempted to embellish the extent of his agoraphobia, there is no doubt that his social impairment is a consequence of his psychiatric condition which is likely to progress without appropriate assistance.

23      I find that the provision of a scooter trailer is an appropriate, reasonable and necessary aid in the circumstances. It would benefit him in terms of his mobility, independence and his ability to socially interact. It may assist in lessening the impact of his psychiatric condition. The provision of a trailer is supported on medical grounds by his treating general practitioner, Dr Ng and Consultant Psychiatrist, Dr Gill.

24      I find that the defendant is liable for the costs associated with the provision of a scooter trailer in accordance with the provisions of the Act.