Daniel Heffernan and Comcare - [2012] AATA 371

[2012] AATA 371

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2010/4636

Re

Daniel Heffernan

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member A K Britton

Date 20 June 2012

Place Sydney
The parties are invited to provide brief written submissions on whether a modified vehicle constitutes “medical treatment” within the meaning of paragraph (f) of the definition of “medical treatment” in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Submissions must be served and filed within 21 days of the date of these Reasons. The parties are granted leave to apply for a variation to these directions.
............[sgd]............................................................
Senior Member A K Britton
CATCHWORDS
WORKERS' COMPENSATION - back injury - liability accepted - modification of vehicle - "medical treatment" - "curative apparatus" - further submissions invited
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) - ss 4(1), 16(1), 39
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Workers Compensation Act 1926 (NSW)
Administrative Appeals Tribunal Act 1975 (Cth) - s 2A
CASES
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; [2002] HCA 14
Thiele v Commonwealth of Australia (1990) 22 FCR 342
Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216; [1979] WCR (NSW) 44
Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318
Re Townley v Comcare [2004] AATA 252
Re Monk and Comcare (1996) 43 ALD 677
Re Hart v Military Rehabilitation and Compensation Commission (2006) 92 ALD 678; [2006] AATA 628
REASONS FOR DECISION
Senior Member A K Britton
20 June 2012

Mr Daniel Heffernan suffers chronic back pain and associated complications following an injury to his back for which Comcare has accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). As a result of that injury he has undergone necessary disc replacement surgery.
Mr Heffernan owns a 2004 Nissan Patrol four-wheel-drive vehicle which he purchased in 2009. The vehicle was assessed by occupational therapists, Ms Jenny Wise and Ms Beth Cheal as unsuitable for his use because of, among other things, his back condition. They believe that because of a combination of factors, including limited head clearance (Mr Heffernan is very tall and there is inadequate clearance between his head and the ceiling of the vehicle), the nature of his back condition and the design of the vehicle, it is not possible to modify the vehicle so as to materially reduce the discomfort Mr Heffernan experiences when driving. Ms Wise has identified two alternative vehicles which in her opinion would be suitable for Mr Heffernan’s use providing a number of modifications are undertaken. She has detailed those recommended modifications in reports prepared for these proceedings. For convenience, I will refer to the recommended vehicles as the “modified vehicle”.
Section 39 of the Act makes Comcare liable to pay the reasonable costs of any modifications to a vehicle used by Mr Heffernan that is reasonably required by him having regard to, among other things, the…

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 371
Case: [2012] AATA 371
Decision Date: 20 June 2012

CaseChat Overview and Summary

The case of Daniel Heffernan and Comcare involved a dispute regarding the modification of a motor vehicle as part of workers' compensation treatment. The primary issue was whether the modified vehicle could be considered as a "curative apparatus" under the Workers' Compensation Act, which would entitle the applicant to reimbursement from Comcare. The Federal Circuit Court was tasked with determining the interpretation of the term "curative apparatus" and whether the modification of Mr Heffernan's vehicle qualified as such.

The court had to decide if the modified vehicle met the criteria for a "curative apparatus" as defined in section 4(1)(h) of the Workers' Compensation Act, which includes any instrument used in the treatment of the worker's disease or injury. The applicant argued that the vehicle modification was necessary for his continued mobility and therapeutic benefit, while Comcare contended that the modification did not qualify as a curative apparatus. The court examined previous case law, including Ferguson Transformers, Hart, Bresmac, and Townley, to interpret the term "curative apparatus" and its application to the case at hand.

In reaching its decision, the court considered the remedial nature of the Workers' Compensation Act and interpreted the term "curative apparatus" broadly to include any instrument that has a therapeutic effect, such as delaying physical or psychological deterioration. The court found that the narrow interpretation of "curative" in Hart was too restrictive and that the evidence provided by Mr Heffernan and the medical professionals regarding the psychological benefits of the vehicle modification was insufficiently detailed to establish a therapeutic effect. The court concluded that a modified motor vehicle, while potentially beneficial, does not inherently qualify as a "curative apparatus" under the Act. However, the court suggested that a modified vehicle might be considered a form of "medical, surgical or other similar aid or appliance" under section 4(1)(f) of the Act, as it could provide a means of mobility otherwise denied to a disabled person.

The court invited further submissions from the parties on the issue of whether the modified vehicle could be considered a form of aid or appliance under section 4(1)(f) of the Workers' Compensation Act. This decision leaves the question of reimbursement for the vehicle modification open for further consideration based on the specific circumstances and the nature of the treatment provided by the modified 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

Mr Heffernan agrees that one of the reasons his present car cannot be modified is because of his height, but cites that well-known principle in workers compensation law that an employer must take an injured worker as they find them.CONCLUSION The Act is remedial legislation and therefore ought be construed beneficially. I therefore accept the analysis expounded in Ferguson Transformers that a “curative apparatus” merely has to have a therapeutic effect, in the sense of delaying physical or psychological deterioration, to fall within paragraph (h) of the definition of “medical treatment” in s 4(1). In my view, the narrow construction placed on the meaning of “curative” in Hart places too great a weight on positive rehabilitation. In Bresmac, Priestly JA did not explain why he found that a modified vehicle was “of therapeutic assistance” to the worker in question. It therefore provides little assistance in resolving the question. The “apparatus” in question in Ferguson Transformers was a specially designed hydrotherapy pool. Its purpose was to facilitate beneficial treatment for the plaintiff. Similarly, in Townley, a spa bath that relieved symptoms of spinal degeneration seems obviously to have a therapeutic effect. In my view, a modified motor vehicle of the type Mr Heffernan wishes Comcare to pay for is not a “curative apparatus”. A hydrotherapy pool is by definition an instrument of therapy or treatment. A modified vehicle, however, is not; it appears merely to be a conveyance. If the reasoning in Monk is taken to its logical extreme, almost anything pleasurable to an injured worker, such as a wide-screen television, could be regarded as “therapeutic” in the sense of moderating or ameliorating “psychological decay”. In my view, vague evidence of some form of unspecific amelioration of “psychological decay” is insufficient to establish a “therapeutic” effect for the purposes of paragraph (h) of the definition of “medical treatment” in s 4(1). The evidence of the GP and Dr Synott of psychological benefit is, unfortunately, unspecific and nebulous. Although I do not reject it, I do not place great weight on it because of the lack of detail and foundation for the opinion. For an apparatus to be regarded as “curative” it must, in my opinion, be inextricably linked to some form of treatment of the worker’s disease or injury or be instrumental in the provision of some form of therapy intended to reduce the pain, discomfort or disability resulting from that disease or injury, whether or not that therapy is rehabilitative. What form of treatment or therapy is provided or facilitated by means of a modified vehicle? It is possible, however, that a modified motor vehicle may, depending on circumstances, more accurately be considered to be a form of “medical, surgical or other similar aid or appliance” under paragraph (f) of the definition of “medical treatment” in s 4(1) 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. Indeed, Deputy President McMahon in Monk (at 682) referred to the fact that the supply of aids and appliances can constitute “medical treatment” for the purposes of the Act. 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.

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	20 June 2012
Place	Sydney