Mansfield v Secretary, Department of Education
[2024] NSWPIC 670
•5 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Mansfield v Secretary, Department of Education [2024] NSWPIC 670 |
| APPLICANT: | Elaine Mansfield |
| RESPONDENT: | Secretary, Department of Education |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 5 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for cost of and incidental to provision of modified motor vehicle; whether vehicle as sought is a curative apparatus pursuant to section 59; whether vehicle as sought is reasonably necessary as a result of the applicant’s injury; Held – while there is no issue a motor vehicle can be a curative apparatus, each case must be decided on its own facts; Bresmac Pty Ltd v Starr and Coomba v Red Funnel Fisheries Newcastle Pty Ltd discussed; the nature of the applicant’s injury together with the modifications sought to be carried out to the proposed vehicle render it a curative apparatus pursuant to section 59; the overwhelming evidence in the matter, including two occupational therapist reports commissioned by the respondent, make it clear the proposed vehicle is reasonably necessary as a result of the applicant’s injury; respondent to pay the costs of and incidental to the purchase of the modified vehicle, less the trade in value of the applicant’s current vehicle. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered injury to her cervical spine and left and right shoulders in the course of her employment with the respondent on 9 September 2019. 2. As a result of her injury, the modified vehicle sought by the applicant is a curative apparatus pursuant to s 59 of the Workers’ Compensation Act 1987. 3. The modified Kia Carnival as sought by the applicant is reasonably necessary as a result of her injury. 4. The respondent is to pay the costs of an incidental to the purchase of the Kia Carnival van and the proposed modifications thereto, less the trade-in value of the applicant’s current vehicle. |
STATEMENT OF REASONS
BACKGROUND
On 9 September 2019, Elaine Mansfield (the applicant) was working in the course of her employment with the Department of Education (the respondent) when she tripped and fell on school premises, causing an injury to her spine and left and right shoulders.
As a result of her injury, the applicant underwent a thoracic spine laminectomy on 1 July 2020, during the course of which it was discovered she was suffering a cerebrospinal fluid (CSF) leak in her T5/6 nerve root sleeve.
The laminectomy regrettably caused nerve damage to the applicant’s upper back, and she began to experience pain in her chest, numbness in her ribs and numbness in both of her arms and fingers. As a result of these symptoms, the applicant underwent a posterior fossa decompression on 21 November 2021.
The applicant had some relief from that surgery; however, she continues to suffer serious symptoms as a result of her injury and is currently undertaking pain management at the hands of specialist Dr Boesel.
The applicant currently drives a Volkswagen Golf hatchback, which she claims is unsuitable for her needs. She seeks payment by the respondent for the purchase of a Kia Carnival van together with modifications. The purchase price of the van is approximately $78,000, and the cost of the modifications is approximately $49,000.
The respondent denies liability for the proposed vehicle on two bases, namely, that it is not a curative apparatus, as that term is defined in s 59 of the Workers’ Compensation Act 1987 (the 1987 Act), and the vehicle, as modified, is not reasonably necessary as a result of the applicant’s injury.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the vehicle sought is a curative apparatus pursuant to s 59, and
(b) whether the vehicle, as modified, is reasonably necessary as a result of the applicant’s injury.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing before me on 3 December 2024. Mr Brown instructed by Mr Morson appeared for the applicant. Ms Grotte instructed by Ms Costello appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (Application) and attachments, and
(b) Reply and attachments.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the vehicle is a curative apparatus
The applicant claims the cost of the vehicle as medical or related treatment as that term is defined in s 59(e) of the 1987 Act and seeks the cost of modifications to that vehicle pursuant to s 59(g) of the same Act.
The parties each referred to the Court of Appeal decision in Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216. In that matter, the leading judgment was delivered by Hutley JA, who noted a curative apparatus is anything which alleviates the effects of a compensable injury [at pp 219-220].
The authorities have made clear a motor vehicle may be a curative apparatus, a proposition which the respondent appropriately conceded. The respondent submitted, however, that whether a vehicle falls within such category will be a matter to be determined individually in each case. As Byron DP noted in Newcastle Regional Public Tenants Council Incorporated v Grant [2005] NSWWCCPD 2:
“In each of these cases, the question as to whether the items could be regarded as ‘curative apparatus’ was decided on its own particular facts and circumstances. An item itself is not necessarily, an inherently ‘curative apparatus’. The authorities indicate that in order for an item to fall within the definition of ‘medical or related treatment’ in s 59 of the 1987 Act, there must be a ‘curative’ or therapeutic element offered by the item to an injured worker, in his or her particular circumstances, that deals with and assists in some therapeutic way, the management of his or her physical or psychological condition. Notwithstanding that an item may be personally preferable to another item, or is considered to be convenient or desirable, will not qualify, unless it can have some therapeutic impact.”
In decisions such as Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318, the provision of a motor vehicle was held to be a curative apparatus to a claimant who was a quadriplegic. However, in Coomba v Red Funnel Fisheries Newcastle Pty Ltd [1998] NSWCC 27, the provision of a new motor vehicle with power steering and automatic transmission was held not to be a curative apparatus. In that matter, the injured worker suffered injury to his back and left leg. His old vehicle was low to the ground with manual transmission, and the worker stated he had difficulty operating that car for those reasons. In rejecting the claim for the new vehicle, the Court instead awarded the equivalent cost of installing automatic transmission to the worker’s then current motor vehicle.
In this matter, the respondent submitted there was insufficient evidence to discharge the applicant’s onus of proving the vehicle as sought and modified would qualify as a curative apparatus.
The applicant gave evidence she struggles to transfer between seated positions and standing positions, and that she is now required to use an electric wheelchair to move around so she can maintain a low respiratory rate to minimise pain she experiences when she breathes and to alleviate the pain of spinal stacking. She stated she experiences back and chest pain if she uses her arms for prolonged periods and now leads a sedentary lifestyle which has caused her to gain approximately 30 kilograms of weight.
The applicant’s evidence is that she currently drives an automatic Volkswagen Golf R hatchback. She listed in detail the difficulties she faces operating her current vehicle. They included the low height of the vehicle making it difficult for her to get in and out of it, consistent with the difficulties she has transferring between seated and standing positions. The applicant stated her back and neck pain are exacerbated when she attempts to drive her vehicle, as the driver’s seat is in a confined space due to the wheel being small, preventing the applicant from adjusting herself into a comfortable driving position.
The applicant stated the pain she experiences when she drives means she can only do so for short periods at any one time, noting that she is also unable to pack and store her electric wheelchair in her vehicle because the boot of her current car is small, and the electric wheelchair is too heavy for anyone to lift. The applicant stated she needs to be able to pack and store her electric wheelchair in her vehicle as she needs it to move around in public spaces.
The applicant’s evidence was the ongoing difficulties she is experiencing with her vehicles were exacerbating her physical and psychological symptoms, leading to feelings of helplessness and social isolation. She said she rarely leaves her home as a result of the difficulties operating her current vehicle.
The applicant also set out in detail difficulties which she has had using taxis and community transport. She stated there are a paucity of disabled taxis, and when she is tried to use community transport to commute to and from hydrotherapy, they have proved unreliable.
The medical evidence in this matter surrounding the benefits of the vehicle sought to be provided is almost unanimously one-sided. The applicant’s general practitioner (GP) Dr Kako, provided a report dated 14 July 2024, in which he noted the provision of the proposed vehicle would significantly improve the applicant’s ability to access her medical services and enable better medical care than relying on phone and video consultations, together with significantly improving her access to physical therapy and reduce the significant symptoms and reduce the time she has to take recovering from exacerbation of pain which she experiences driving her current vehicle.
Mr Brian Pham, occupational therapist (OT) provided a report to the applicant’s solicitors dated 31 August 2024. He set out an accurate history and recorded the functional ability of the applicant as follows:
“Ms Mansfield was observed to move slowly and cautiously throughout her home when discussing her symptoms. She was observed to rely on her surroundings for additional support when moving about her home. She was able to independently transfer from sit to stand from her recliner with observed difficulty.
Ms Mansfield was observed to demonstrate difficulty with entering and exiting her current motor vehicle, a hatchback Volkswagen Golf R, which sits close to the ground. She also reported difficulties with her current vehicle accommodating her electric wheelchair, which she needs to use when accessing the community on her own. She advised at present she needs to rely on her family for most of her trips in public.”
When asked about the provision of equipment and modification needs, Mr Pham referred to an activities of daily living assessment provided by Ms Bertoni, OT for the respondent dated 23 February 2024. The functional restrictions observed by Ms Bertoni are consistent with those recorded by Mr Pham. Additionally, Ms Bertoni noted the functional restrictions causing the impact on independent transport having an adverse effect on the applicant’s psychological state. Mr Pham stated:
“Ms Bertoni recommended modifications and supply of a Kia Carnival, which will eliminate the need for Ms Mansfield to manually pack her electric wheelchair for travel and improve her independence with travel.
I am in agreement that this recommendation is considered reasonably necessary for Ms Mansfield to improve her independence with community access.”
When asked to provide a rationale for the modified vehicle, Mr Pham stated:
“I believe the request for a modified vehicle is reasonable and necessary. It is appropriate and effective to modify a vehicle to accommodate independent transport of an electric wheelchair that Ms Mansfield relies on to access the community and a commonly accepted modification for wheelchair users.
Further, there are no other options currently available to Ms Mansfield to improve her independence with this task. The cost of the vehicle and modifications is reasonable.
Ms Mansfield’s ability to access the community independently has been significantly impacted by her work-related injuries, as accepted and outlined in this report and accompanying medical reports. She has been assessed and agreed to a Whole Person Impairment (WPI) of 31%, which places her in the severe injuries category and therefore unlikely she will achieve improvement in her symptoms and functional capacity…
A modified vehicle would significantly alleviate the consequences of Ms Mansfield’s injury while accessing the community.”
The respondent challenged Mr Pham’s finding that the provision of the vehicle was the only means available to the applicant to alleviate her issues. The applicant noted a number of vehicles are present at the applicant’s premises, including those owned by her children and husband. Among those vehicles are some sizeable four-wheel drives, however, as Mr Brown noted, the applicant does not own those vehicles and reliance upon them would mean she is at the behest of her family and friends to move her about. Additionally, Mr Brown also noted, and I accept, that the applicant is not in the position to modify other people’s vehicles.
Ms Bertoni, OT, retained by the respondent, provided a report dated 23 February 2024. Ms Bertoni set out a detailed history of injury, including the applicant having difficulty doing anything without stretched hands, for example, driving because she complains of persistent numbness and pins and needles in both hands, especially the ring and little fingers.
Ms Grotte relied on this history to indicate that to submit there are questions as to whether the applicant is indeed able to drive at all. She queried whether the Commission would be satisfied that the applicant is able to drive at all, let alone the modified vehicle as sought.
With respect, I cannot accept that submission. The applicant is licensed to drive in the state of New South Wales. It is not for the Commission to second-guess the requirements of the Roads and Maritime Services of New South Wales. Additionally, no fewer than three OTs have assessed the applicant, and none of them state that she is incapable of driving or should not do so. Rather, these practitioners have assessed the applicant as suffering from difficulties whilst driving. As Mr Brown noted, if the applicant is experiencing these symptoms, she simply will not drive just as any other member of the community does not drive if they are feeling indisposed at any given time.
Ms Bertoni took a history from the applicant in relation to her transportation difficulties consistent with that found by Mr Pham. That is, the applicant reported she had started to drive again after a very long time, however, was having difficulties with driving due to her car being too low and not having space to have her wheelchair.
In terms of recommendations, Ms Bertoni, who it must be remembered was retained by the respondent, found the applicant’s vehicle was too low and difficult to access without significant pain and does not enable her to transfer her current wheelchair. Ms Bertoni therefore recommended the purchase of a modified car which would enable her to access her vehicle at an appropriate height, reducing pain as well as enabling her to transport her wheelchair independently without the need to assemble and disassemble it.
Ms Bertoni then set out the required modifications for the applicant, which are in accordance with the quote of Automobility dated 25 March 2024.
Ms Bertoni continued:
“Being able to independently access the community will increase Ms Mansfield’s independence and improve her current mental health as she is heavily reliant on family for this task and feels increasingly isolated at home. This vehicle has been tried and tested with Ms Mansfield via Automobility, which is a registered vehicle modification company that specialise in car modifications for people with disabilities with wheelchair needs.”
The findings of Mr Pham and Ms Bertoni accord with those of Ms Emily Parker, OT, who provided the report to the respondent dated 21 October 2023. That report, in a similar format to that of Ms Bertoni recorded the applicant’s history, her summary of treatment and her ongoing difficulties. Ms Parker’s report was provided before the notion of a modified vehicle was first touted in this matter, so she does not comment upon the specific suitability or otherwise of the proposed vehicle. Nevertheless, Ms Parker did comment on the applicant being unable to independently complete small shopping tasks until she was able to drive more consistently without an aggravation of her pain. Ms Parker did note that a potential change of vehicle “could allow for increased ability to drive comfortably due to reduced aggravation when transferring in and out of the vehicle.”
Mr Brown submitted the provision of the vehicle constituted a curative apparatus because it would normalise the applicant’s experience in the community, enable increased provision to healthcare, lower the exacerbations of her pain experience getting into and out of the vehicle and allow her to transport her motorised wheelchair. He also submitted those reasons made the provision of the vehicle reasonably necessary pursuant to s 60 of the 1987 Act.
For the respondent, Ms Grotte raised the issue of the cost of the vehicle – in the vicinity of $120,000 with its modifications – and its potential effectiveness. She impressed upon the Commission the test in Diab v NRMA Insurance, referring as it did to a test originally set out by Burke J (as he then was) in Rose.
Ms Grotte noted the applicant’s submission that there were no alternatives to the provision of the vehicle, however, she submitted one cannot just assume there are no alternatives because there is no evidence of them. She noted the eight vehicles located at the applicant’s residence.
I accept that the cost of the vehicle is a matter which must be taken into account, however, it is not determinative of whether something is reasonably necessary.
The respondent submitted the applicant fell short of supportive evidence sufficient to receive an award pursuant to s 60 for the provision of the vehicle. She noted the cost was very high and the applicant has not satisfied an obligation to explore any alternatives.
With respect, I do not accept that submission. There are three OTs who have provided reports in this matter, two of whom were retained by the respondent itself. Each of them notes the provision of an alternative vehicle as being appropriate and necessary for the applicant. Indeed, it is Ms Bertoni who initially provides the notion of the vehicle sort being provided to the applicant.
Ms Grant also submitted there was no evidence certifying that the applicant is capable of driving a vehicle safely, and that the evidence of her pain and difficulties, in fact, goes to the contrary.
As noted, I do not accept that submission, noting that if the applicant is licensed to drive by roads and maritime, it is not for the Commission to determine that she cannot, particularly in the absence of any medical evidence stating so.
The respondent also submitted that the fact the applicant takes tetrahydrocannabinol (THC) to manage her pain renders her unsuitable for driving. With respect, I do not accept that submission. As Mr Brown noted in reply, if the applicant has been using THC, she simply will not drive, just as a driver who is under the influence of alcohol would reasonably choose not to drive.
Indeed, given there are three OT reports in this matter which do not indicate the applicant cannot drive, I am not persuaded she is incapable of doing so.
In terms of other options for the provision of treatment, even accepting there are a number of other vehicles at the applicant’s premises, there is no evidence they are hers or that they are available for her to modify.
Whilst Ms Grotte submitted, correctly in my view, that Automobility were only asked to quote the car at issue and no alternatives to it, the source of that quote came from an OT retained by the respondent itself.
There is no medical evidence to counter the overwhelming opinion of appropriately qualified experts that the proposed vehicle and its modifications both constitute a curative apparatus and are reasonably necessary as a result of the applicant’s injury.
In my view, the evidence in this matter is overwhelming. The applicant will benefit from the provision of the vehicle together with its modifications, and in my view, it should be provided to her rather than it be forborne, as it is reasonably necessary as a result of her injury.
SUMMARY
For the above reasons, the Commission will make orders that the respondent pay the costs of an incidental to the provision of the proposed vehicle together with its modifications.
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