Daniel Heffernan and Comcare
[2012] AATA 581
[2012] AATA 581
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/4636
Re
Daniel Heffernan
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 30 August 2012 Place Sydney The decision made by Comcare on 19 October 2010 is set aside and in substitution it is decided that:
Comcare is liable under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to pay the reasonable costs of:
(a) purchasing a suitable second hand sedan that meets the essential vehicle features listed at [16.1] of Ms Wise’s report of 9 June 2011 or, if unavailable, a suitable second hand four wheel drive vehicle that meets those features; and
(b) undertaking the modifications listed at [16.3] of Ms Wise’s report of 9 June 2011 to that vehicle.
less the price received for the sale or trade-in of Mr Heffernan’s current vehicle.
..................................[sgd]......................................
Senior Member A K Britton
CATCHWORDS
WORKERS' COMPENSATION - medical treatment - modified motor vehicle "aid" for purpose of paragraph (f) of definition of medical treatment in SRC Act - reasonable to obtain modified second hand vehicle in circumstances - decision under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) - s4(1)(f)
CASES
Re Heffernan and Comcare [2012] AATA 371
Thomas v Ferguson Transformers Pty Ltd (1979) 1 NSWLR 216; [1979] WCR (NSW) 44
Re Grace and the Commonwealth [1987] AATA 130
Re Jorgensen and the Commonwealth (1990) 23 ALD 321
Comcare v Rope (2004) 135 FCR 443; [2004] FCA 540
Comcare v Holt (2007) 94 ALD 576; [2007] FCA 405REASONS FOR DECISION
Senior Member A K Britton
30 August 2012
Mr Daniel Heffernan suffers chronic back pain and associated complications as a result of an injury for which Comcare has accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). In Re Heffernan and Comcare [2012] AATA 371) (the first decision), I decided that a modified motor vehicle did not constitute a “curative apparatus” within the definition of “medical treatment” contained in the Act. In that decision, however, I raised the question whether a modified motor vehicle could be regarded as an “aid or appliance” for the purposes of paragraph (f) of the definition of “medical treatment”. This was not a point originally argued and I therefore invited the parties to provide further submissions.
These reasons address the preliminary question of whether the claimed modified vehicle constitutes “an aid or appliance” within the meaning of paragraph (f) of the definition of “medical treatment” in s 4(1) of the Act. If the answer to that question is yes, I must decide whether it is reasonable for Mr Heffernan to obtain that “treatment”, and if so, the amount appropriate for that treatment. These reasons should be read in conjunction with the first decision.
IS THE CLAIMED MODIFIED VEHICLE AN AID OR APPLIANCE?
Comcare submits that no motor vehicle, in itself, whether modified or not, is “medical treatment” within the meaning of paragraph (f) of the definition of the medical treatment in s 4(1) of the Act. In the alternative, it submits that even if a modified vehicle can, in some circumstances, satisfy the statutory definition of “medical treatment”, those circumstances cannot be found in this case.
It says that a “Toyota Landcruiser with a better seat and better suspension” as recommended by occupational therapist, Ms Jenny Wise, (see first decision paragraph [2]) cannot be characterised as “medical treatment” for the purposes of the Act. This is because to conclude that a motor vehicle, modified or not, is a “medical, surgical or other similar aid or appliance” requires a “tortuous interpretation”, even allowing for principles of construction of a beneficial statute. Picking up the Macquarie Dictionary definition of “appliance”, Comcare argues that a Toyota Landcruiser cannot be said to be “a mechanical device designed to assist a disabled person”.
It is true that a Toyota Landcruiser is not designed to assist a disabled person, but that is not the end of the argument. As Comcare concedes, the Macquarie Dictionary defines an “aid” as “something that aids or yields assistance” and an “appliance” as “an instrument, apparatus or device”. A car is, obviously, an apparatus or machine. The question is whether, in the circumstances of the case, it is an “aid”.
As a result of his injury, Mr Heffernan almost certainly has greater difficulty than an uninjured person of his physique and age in transporting himself from point to point. He needs a car to get to work because he cannot use, or has great difficulty using, public transport which, in any event, is limited in his area. A motor vehicle of suitable configuration would certainly be an apparatus that “aids or yields assistance” to him. It is notable that although s 39 does not apply directly to this case, the Act contemplates modification of an injured worker’s car as compensable in some circumstances. That must be because Parliament recognised the value and, indeed, necessity of motor vehicles for many injured people living in our society.
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.
In Thomas v Ferguson Transformers Pty Ltd (1979) 1 NSWLR 216, the NSW Court of Appeal, construing NSW legislation, did not decide the question whether a car could be considered an “artificial aid”, but expressed a view that there must be something special about the design of the aid that adapted it to the specific needs of the injured person. Hutley JA said (at 220), “An artificial aid in my opinion, is anything which has been specially constructed to enable the effects of the disability (the result of injury) to be overcome.”
In contrast, paragraph (f) of the definition does not require that the aid be “artificial”. As the Tribunal said when construing the meaning of “aid” for an injured sailor in Re Grace and the Commonwealth [1987] AATA 130 (at [44]-[45]):
It does not include aids or appliances amounting to items of luxury or for use in leisure or recreation, however altruistically therapeutic the leisure or recreation may be.
Providing that the article is needed in order that the employee maintain personal self-sufficiency as largely as possible in the pursuit of his personal domestic life, then subject to the upper limit of quantum ordinarily applicable, the cost of obtaining the aid or appliance or, having obtained it, repairing or replacing it when it is no longer useable, is a cost for which the Commonwealth is liable to pay compensation.
The concept of “artificiality” may imply that some form of special design or customisation of a device is required before it may be considered an “aid” for the purposes of the definition of medical treatment. But the Act does not require that in my view. In Grace, the Tribunal was satisfied that an unmodified self-propelled motor mower was an aid. I agree with the propositions expressed above and consider that, by analogy, a motor vehicle can fall within the definition of paragraph (f) of the definition if it enables the injured employee to offset the physical restrictions caused by his or her injury to pursue employment or ordinary domestic activities.
Comcare’s second argument is that Mr Heffernan “does not need a new vehicle because he is injured, he needs a new vehicle because he is too tall”. As neat as that formulation is, it does not capture the several factors that need to be taken into account. As noted at paragraph [2] of the first decision, Mr Heffernan is very tall. His 2004 Nissan Patrol could not be modified (otherwise he may have been eligible for compensation under s 39). The expert evidence given in these proceedings and discussed in greater detail below, was that a combination of factors, including Mr Heffernan’s height, back condition and the design of the vehicle, means that it is not possible to modify the vehicle so as to materially reduce the discomfort he experiences when driving.
If Mr Heffernan’s problem was merely that he was too tall to fit into an ordinary motor vehicle, I might accept Comcare’s argument. But it is the combination of his height with his back condition that make driving his Nissan Patrol very uncomfortable. But for his back condition, he might have been able to find a comfortable position in the car notwithstanding his height. His injury has precluded that option.
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”.
REASONABLE TO OBTAIN IN THE CIRCUMSTANCES?
At Comcare’s request, Ms Wise prepared a number of reports setting out her recommendations of an appropriate vehicle for Mr Heffernan to accommodate his compensable conditions “particularly his lumbar spine injury and ‘neuropathy to left buttock and foot’”. She concluded that the only vehicle on the Australian market suitable for his use was a Toyota Landcruiser (two models). She recommended, among other things, that the vehicle be fitted with a Stratos car seat which she believed offered superior suspension to the standard seat found in most 4WD vehicles including the Toyota Landcruiser. She estimated that a Toyota Landcruiser modified as recommended in her report of 9 June 2011, would cost about $80,000 (new) and between $44,000 to $90,000 (second-hand).
Mr Heffernan contends that a new Toyota Landcruiser, modified as recommended by Ms Wise, is reasonable to obtain in the circumstances. He says that Comcare should pay for the cost of that vehicle less the price obtained for his current vehicle. He submits that obtaining the modified vehicle is reasonable because his back condition will be aggravated and possibly deteriorate further if he continues to drive his current vehicle. Furthermore, he claims that he cannot afford to purchase any of the vehicles recommended by Ms Wise.
Comcare argues that it is not reasonable for Mr Heffernan to obtain (at its expense) the proposed modified vehicle because of its significant cost, and his decision, having already had a vehicle modified at its expense (the 1996 Toyota Landcruiser), to proceed to purchase a vehicle unsuitable for his use (the 2004 Nissan Patrol).
To put these submissions in context, it is necessary to sketch in some background facts.
In 2006, Comcare accepted liability for the cost of modifying Mr Heffernan’s motor vehicle — a 1996 Toyota Landcruiser. Those modifications cost about $1800 and included the installation of a Stratos car seat.
Three years later, Mr Heffernan purchased a 2004 Nissan Patrol for $18,000. He gave as the reason for that decision the prohibitive cost of maintaining the Landcruiser which was constantly in need of repairs having travelled close to 400,000 kilometres.
Ms Wise and Ms Cleal (an occupational therapist asked to provide a vehicle assessment by Mr Heffernan) agree that the Nissan Patrol is unsuitable and cannot be modified for Mr Heffernan’s use primarily because it offers inadequate “head clearance” — the distance between the top of a person’s head and the ceiling of the vehicle. For that reason they recommended against installing a Stratos or any equivalent seat. Neither were able to propose any other options to modify the Nissan Patrol so as to reduce the discomfort and pain Mr Heffernan experiences while driving.
Ms Wise and Ms Cleal also agree that, because of its superior suspension, a sedan is generally recommended for a person with an injured back, but in Mr Heffernan’s case a 4WD was the better option because it met the minimum head clearance and transfer height requirement stipulated by Ms Wise (and endorsed by Ms Cleal). Neither were aware of any sedan on the Australian market that met those requirements.
Section 16(1) of the Act requires an assessment to be made of whether the claimed medical treatment (in this case, the modified vehicle), is reasonable in the circumstances. In Re Jorgensen and the Commonwealth (1990) 23 ALD 321, Gray J said:
In my view, the question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical treatment at all, would have been better for a person suffering from particular injury. A reference to the circumstances raise subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation.
In Comcare v Rope (2004) 135 FCR 443, Stone J said that these comments must be understood in their context — namely a claim for in vitro fertilisation treatment following damage to the applicant’s reproductive organs resulting from a compensable injury. Her Honour noted that at 448:
It was contended [in Rope] that, in determining if that treatment was reasonable, factors such as the applicant’s age, economic circumstances, marital stability and so on, had to be taken into account. While his Honour limited the subjective factors that might be taken into account, the subjectivity of the circumstances that must be considered means that previous cases will, necessarily, be of limited relevance.
Her Honour went on to say (at 448):
I accept, however, that the reference in s 16(1) to treatment being “reasonable to obtain in the circumstances” is a clear indication that, in this case, the tribunal was required to engage in a costs/benefit analysis in relation to PNI treatment. The tribunal needed, among other things, to weigh the benefit of PNI treatment against the cost of obtaining it (given that the treatment was available only in Townsville), taking into account any other treatment available to [the employee]. I am not, however, convinced that the tribunal neglected to do this.
That analysis was endorsed by Mansfield J in Comcare v Holt (2007) 94 ALD 576 at 582-3:
There may be circumstances where treatment is unreasonable because its anticipated therapeutic benefit does not justify the expense involved in the circumstances. Section 16(1) of the SRC Act does not indicate that a proposed treatment is reasonable unless alternative treatment of more or less equivalent therapeutic benefit and at a lesser cost is shown by Comcare to be available. That is consistent with the approach of Stone J in Rope. Of course, it will be common for the reasonableness of proposed medical treatment to be assessed in the light of alternative treatment options, but that is not necessarily so. There might be cases where the cost of the proposed treatment, even if no other treatment options were available, would lead to the view that the proposed treatment is unreasonable having regard to its anticipated benefit. Such a circumstance is, of course, likely to be uncommon if only because treating medical practitioners generally act responsibly and with sound medical judgment.
The circumstances of this case are that Mr Heffernan has a compensable condition which is aggravated by driving. The unchallenged expert evidence is that his current vehicle is unsuitable and cannot be modified so as to materially reduce his discomfort and the risk of further aggravating the original injury.
As the authorities make clear, the cost of any proposed treatment, while not the sole or primary consideration, is nonetheless relevant to the assessment of reasonability. In this case, the option of modifying an existing vehicle is not available because of Mr Heffernan’s decision to purchase a vehicle that cannot be modified to accommodate his disability. As Comcare points out, Mr Heffernan was on notice, prior to making that purchase, of the head clearance issue (see report of Ms Ruby Bartnicke, 26 June 2006). While that decision appears to be the result of foolishness or carelessness rather a calculated decision to obtain a personal gain, it nonetheless effectively excludes the less costly option of modifying an existing vehicle. In my opinion that decision is relevant to the assessment of reasonableness.
Mr Heffernan’s strong preference is to obtain a new vehicle which he contends is both safer and offers better suspension than earlier models. Ms Wise’s research reveals that a new Landcruiser is close to double the cost of most of the second hand vehicles she surveyed. While a new vehicle has the advantage of, among other things, minimal maintenance costs, the cost difference between it and a second-hand vehicle, in my opinion, renders this option unreasonable.
The significant differential between the cost of modifying an existing vehicle and purchasing and modifying a replacement vehicle, together with Mr Heffernan’s own actions in purchasing a vehicle unsuitable for modification, are powerful factors weighing against a finding of reasonability in this case. While the considerations are finely balanced, I have decided, subject to the qualification discussed below, that given Mr Heffernan’s need for a suitably modified vehicle, that it is reasonable that he obtain a modified second hand vehicle of the type recommended by Ms Wise.
Twelve months have passed since Ms Wise gave Comcare advice about suitable vehicles for Mr Heffernan’s use. Her research revealed that at that time, there were no sedans and only two 4WDs on the Australian market that met the head clearance and transfer requirements she considered essential features for any vehicle driven by Mr Heffernan. Given the passage of time, in my opinion it would be worthwhile to review whether that remains the case. In making that recommendation, I note Mr Heffernan’s strong preference for a 4WD. Given the superior suspension provided by a sedan together with the fact that it can generally be obtained for a lower price than a 4WD, it would not be reasonable for Mr Heffernan to obtain a 4WD if a suitable sedan was available. Likewise if a suitable 4WD is now available at a lesser price than a Toyota Landcruiser, that option should be explored.
APPROPRIATE AMOUNT
The final issue to decide is the amount appropriate for Comcare to pay for the modified vehicle.
That question cannot be determined with any degree of specificity because it turns largely on the age and condition of the vehicle purchased and supply and demand factors at the time of purchase. As Ms Wise’s research reveals, there is a significant variation in price within the second hand 4WD market. While not possible to prescribe the age and condition of the proposed vehicle, I believe the brief given by Comcare to Ms Wise — a vehicle of similar age and condition to Mr Heffernan’s 2004 Nissan Patrol — to be fair and reasonable in the circumstances.
CONCLUSION
For the reasons as given, I have decided to set aside the decision made by Comcare on 19 October 2010 and in substitution decide:
Comcare is liable under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to pay the reasonable costs of:
(a)purchasing a suitable second hand sedan that meets the essential vehicle features listed at [16.1] of Ms Wise’s report of 9 June 2011 or, if unavailable, a suitable second hand four wheel drive vehicle that meets those features; and
(b)undertaking the modifications listed at [16.3] of Ms Wise’s report of 9 June 2011 to that vehicle.
less the price received for the sale or trade-in of Mr Heffernan’s current vehicle.
I certify that the preceding 33 (thirty three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.
.............................[sgd]...........................................
Associate to Senior Member A K Britton
Dated 30 August 2012
Date(s) of hearing
Date of final submissions
23 and 24 April 2012
11 July 2012
Counsel for the Applicant Mr B McManamey Solicitors for the Applicant Ms F Seaton, Turner Freeman Lawyers Counsel for the Respondent Mr B Dube Solicitors for the Respondent Ms B Audsley, Australian Government Solicitor
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