Keane and Telstra Corporation Limited
[2008] AATA 424
•17 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 424
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2853
GENERAL ADMINISTRATIVE DIVISION ) Re JAMES KEANE Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Miss E.A. Shanahan, Member Date17 March 2008
PlaceMelbourne
Decision For reasons given orally, the Tribunal affirms the decision under review.
(sgd) E.A. Shanahan
Member
COMPENSATION ‑ claim for aids or appliances or modification of a vehicle or article – failure to satisfy pre-conditions of s 39(1) of the Act – decision affirmed.
Safety Rehabilitation and Compensation Act 1988
Military Rehabilitation and Compensation Commission v Pollanen [2005] FMCA 95
REASONS FOR DECISION
17 March 2008 Miss E.A. Shanahan, Member 1. Mr Keane sustained a compound fracture of his right tibia and fibula when he fell from his push-bike while riding to work on 20 June 1984. His employer, Telstra, accepted liability for the injury. Mr Keane was made redundant in 1994. He continued to work, initially as a builder and farmer and then solely as a farmer. On 10 March 1999 Telstra accepted his claim for permanent impairment assessed at 31 per cent under Table 9.2 of the Guide to the Assessment and Evaluation of Permanent Impairment.
2. On 29 July 2006 Mr Keane lodged a claim for provision of a four-wheeled farm motor-bike to enable him to continue working his farm. Telstra denied liability on 5 February 2007 on the basis that such a motor-bike did not constitute a reasonable expense under s 39 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).
3. On 24 February 2007 Mr Keane submitted a claim for funding of a vehicular hoist to allow him to maintain his farm equipment and at the same time sought review of the determination regarding the four-wheeled motorcycle.
4. By a determination dated 15 March 2007 Telstra denied liability for the provision of the vehicular hoist.
5. Telstra affirmed both decisions by way of a reviewable decision dated 7 May 2007 for the following reasons:
a.That sub-section 39(1)(d) limits liability to modifications of vehicles rather than a purchase of a vehicle per se. Liability cannot therefore extend to the purchase of a vehicle under s 39 of the SRC Act.
b.The requested vehicular hoist is not reasonably required having regard to the nature of the Applicant’s impairment and the fact that there are means of attending to the maintenance of equipment which are not affected by the Applicant’s alleged impairment other than via a vehicle hoist.
c.The definition of ‘medical treatment’ in s 4(1) of the SRC Act applies to the ‘supply, replacement, or repair of an artificial limb or other artificial substitute or a medical, surgical or other similar aid or appliances’. A vehicle hoist cannot be considered to fall into these categories.
6. Mr Keane lodged an application for a review of the decision dated 7 May 2007 at the Administrative Appeals Tribunal on 31 June 2007.
7. Mr Keane was self represented and Mr J. Lenczner of counsel, instructed by Sparke Helmore Solicitors, represented Telstra. The Tribunal had before it the documents lodge pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents).
BACKGROUND TO THE APPLICATION
8. Mr Keane sustained a compound fracture of the right tibia and fibula in 1984. The fracture failed to heal and required bone grafting to effect union. Over a period of twelve years Mr Keane underwent numerous surgical procedures for direct and indirect complications of the original injury. These operations involved the right leg, left knee and right hip and groin. He has a three centimetre shortening of the right leg with restricted right ankle movement and pain in the ankle, right thigh and hip and lumbar spine. As a result, he experiences difficulty walking, standing for any lengthy period of time and performing heavy manual work. Following each surgical procedure he underwent intensive and prolonged physiotherapy treatment. He has used a walking stick when necessary and wears an orthotic shoe with an elevated right heel. He continues to farm but is limited in his activities by his diminished mobility. Mr Kean is 54 years old. His application for provision of a four-wheeled farm bike and a vehicular hoist were to enable him to continue farming.
FAILURE TO SATISFY THE REQUIREMENTS OF S39(1)(b) OF THE SRC ACT
9. At the commencement of the hearing Mr Lenczner raised the preliminary question of the requirement to satisfy s 39(1)(b) of the SRC Act. Section 39(1)(b) states that 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: …
10. Section 36 and s 37 of the SRC Act are also relevant to this application. Section 36 states:
(1)Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program.
(2) An assessment shall be made by:
(a)a legally qualified medical practitioner nominated by the rehabilitation authority;
(b)a suitably qualified person (other than a medical practitioner) nominated by the rehabilitation authority; or
(c)a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority.
and s 37 states that:
(1)A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.
11. Mr Keane has not requested formal rehabilitation nor has Telstra offered such rehabilitation.
12. The Tribunal had been aware from the respondent’s Statement of Facts and Contentions that this preliminary question would be raised. The Tribunal was also aware from the T-Documents and the compensation file that Mr Keane had undertaken physiotherapy treatment for more than 12 years. His medical advisors had not recommended any other form of rehabilitation.
13. Mr Lenczner submitted that Mr Keane had not met the pre-condition of s 39(1)(b), as he had not undergone a rehabilitation program as described in s 36(1) and s 37(1), wherein the term program is used in all references to rehabilitation. This submission was based on the authority of Military Rehabilitation and Compensation Commission v Pollanen [2005] FMCA 95 wherein Phipps FM decided that a course of physiotherapy did not equate to a rehabilitation program and that the Tribunal’s decision of 12 February 2004 that a prescribed course of physiotherapy equated to a rehabilitation program was a misinterpretation of the statute and therefore an error of law.
14. Based on the respondent’s submission that the Tribunal was bound by the Federal Magistrates decision, the Tribunal affirmed the decision under review.
15. Mr Keane will request that the respondent arrange for his assessment for a rehabilitation program in accordance with s 36 of the SRC Act. Depending on the result of such assessment, he will consider whether to lodge a further application for the provision by the Respondent of a four-wheeled farm motor cycle and a vehicular hoist.
16. For these reasons, the Tribunal affirms the decision under review.
I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
Signed: Olympia Sarrinikolaou
ClerkDate of Hearing 17 March 2008
Date of Decision 17 March 2008
Solicitor for Applicant Nil ‑ Self-represented
Counsel for Respondent Mr J. Lenczner
Solicitor for Respondent Helen St Jack, Sparke Helmore Solicitors
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