Keane and Telstra Corporation Limited (Compensation)

Keane and Telstra Corporation Limited (Compensation) [2016] AATA 76 (16 February 2016)

Division	GENERAL DIVISION
File Number	2014/6741
Re	James Keane
APPLICANT
And	Telstra Corporation Limited
RESPONDENT

DECISION

Tribunal	Dr Damien Cremean, Senior Member
Date	16 February 2016
Place	Melbourne

The Tribunal affirms the reviewable decision.

[sgd].....................................................................

Dr Damien Cremean
Senior Member

COMPENSATION- Rehabilitation program—“aids or appliances”—vehicle hoist and quad bike—rejection of application—decision affirmed

Legislation

Safety Rehabilitation and Compensation Act 1988 (Cth), section 39

REASONS FOR DECISION

Dr Damien Cremean

16 February 2016

1. The Applicant seeks review of a decision of the Respondent dated 29 October 2014. The Respondent’s decision affirmed a determination dated 11 July 2014 of the Respondent that the Applicant is not entitled to compensation under section 39 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) for a vehicle hoist and four-wheeled motor bike (called a quad bike) in relation to a fracture of the tibia and fibula right leg for which the Respondent has accepted liability.

2. Despite some dissent from the Applicant, I am quite clear that this correctly sets out the scope of the decision under review. The Applicant himself was specific in his written submissions (15 January 2016) that it was this decision of 29 October 2014 which he wanted reviewed.

3. This raises a difficulty, however, because section 39(1)(b) of the Act applies only where an injured employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program.

4. The Applicant is not undertaking and has not completed a rehabilitation program. Nor has he been assessed as not capable of undertaking one. He has raised the question of a rehabilitation program with the Respondent on many previous occasions but has not pursued it further.

5. A jurisdictional difficulty thus arises for the Applicant and the Tribunal.

6. Even so, there is still a decision on foot which is reviewable.

7. In the circumstances, I shall address the application for review as if section 39 does apply.

8. The first question is whether a vehicle hoist and quad bike fall within section 39(1)(e) of the Act as aids or appliances. If they do, the second question is whether they are reasonably required by the [Applicant], having regard to the nature of [his] impairment.

9. In my view a vehicle hoist and a quad bike do not fall within section 39(1)(e) as aids or appliances. These words should be read in their natural and ordinary sense in the context of section 39 as a whole.

10. Vehicle hoists and quad bikes (unlike, say, wheelchairs, motorised scooters or similar) were not developed as products with injured or disabled persons in mind. They may happen, on occasion, to be of assistance to injured or disabled persons but they were not produced for that purpose. In my view, they do not qualify as the aids or appliances which Parliament had in mind when enacting section 39(1)(e) of the Act.

11. If a vehicle hoist and a quad bike…