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 405

REASONS 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daniel Heffernan and Comcare

Details

AGLC: Daniel Heffernan and Comcare [2012] AATA 581
Case: [2012] AATA 581
Decision Date

CaseChat Overview and Summary

Daniel Heffernan sought a review of a decision made by Comcare, the Commonwealth's workers' compensation insurer, regarding compensation for the purchase of a suitable vehicle following an injury sustained during his employment. The dispute centred on whether Comcare was obligated to reimburse Mr Heffernan for the reasonable costs of purchasing a suitable second-hand vehicle and necessary modifications, given his injury and the features required for accessibility. The case was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether Comcare's decision to refuse compensation for the purchase of a suitable vehicle and the required modifications was justified. Specifically, the court had to determine the appropriate benchmark for assessing the reasonable costs of a suitable vehicle and whether Comcare's refusal to compensate Mr Heffernan for these costs was reasonable and lawful. Additionally, the court needed to consider whether the vehicle features listed in Ms Wise's report adequately reflected the necessary modifications required by Mr Heffernan's injury.

The court held that Comcare's decision was not supported by the evidence and was unreasonable. It found that the brief given to Ms Wise to assess the cost of a suitable vehicle was fair and reasonable. The court emphasised the variability in the second-hand vehicle market and noted that while it was not possible to prescribe the exact age and condition of the vehicle, Comcare's benchmark was appropriate. The court concluded that Comcare was liable under the Safety, Rehabilitation and Compensation Act 1988 to compensate Mr Heffernan for the reasonable costs of purchasing a suitable vehicle and undertaking the necessary modifications, less the price received for the sale or trade-in of his current vehicle.

Consequently, the court set aside Comcare's decision and substituted its own, determining that Comcare must pay for the reasonable costs of purchasing a suitable second-hand sedan or four-wheel-drive vehicle that meets the essential vehicle features listed in Ms Wise's report, along with the necessary modifications, minus the trade-in value of Mr Heffernan's current vehicle.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/4636
Re	Daniel Heffernan
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member A K Britton
Date	30 August 2012
Place	Sydney