Monk and Comcare (Compensation) - [2018] AATA 224

Monk and Comcare (Compensation) [2018] AATA 224 (16 February 2018)
Division:GENERAL DIVISION
File Number: 2015/5425
Re:Carmel Monk
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member N A Manetta
Date:16 February 2018
Place:Adelaide

The Tribunal sets aside the decision under review and substitutes a decision as follows:
(a)Comcare is not obliged to purchase a new van for Ms Monk;
(b)Comcare is obliged to repair Ms Monk’s existing van or it may instead purchase a good-quality second-hand van which it must then modify to meet Ms Monk’s needs.

.....................[Sgd].........................
Senior Member N A Manetta
CATCHWORDS
COMPENSATION - purchase of new modified van - whether an aid or appliance - whether purchase reasonable - held - van was an aid or appliance but purchase of new van not reasonable in the circumstances - decision under review is varied.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, s 39(1), (2)
CASES
Re Monk and Comcare (1996) 43 ALD 677
Heffernan v Comcare [2014] FCAFC 2; 218 FCR1
Thiele v Commonwealth (1990) 22 FCR 342
Re Grace and Commonwealth (1987) 6 AAR 372
Re Heffernan and Comcare [2015] AATA 655
Re Allis and Commonwealth (1985) 4 AAR 23
REASONS FOR DECISION
Senior Member N A Manetta
16 February 2018

This is an application by Ms Carmel Monk seeking a review of a decision of the respondent Comcare. Comcare has refused to pay for the purchase and modification of a new van to assist Ms Monk in her transport needs. The claim was advanced under s 39(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Due to her disability, Ms Monk is unable to drive a vehicle that is not modified. I would note at the outset that she is not able to drive a modified sedan, but requires a van. I note further that Comcare has also determined that it is not liable to pay for repairs to Ms Monk’s existing van. At the hearing before me, Ms Monk was represented by Ms Clark; Comcare, by Ms Walker.
SUMMARY OF CONCLUSION
So far as Comcare’s decision to refuse to purchase a new van is concerned, I would affirm the decision under review. In so far as Comcare has refused to pay for the repair of Ms Monk’s van, I would set aside Comcare’s decision and substitute a decision that Comcare must at its option repair the van or buy Ms Monk a second-hand vehicle and modify it. I would expect Comcare to make a sensible choice in that regard in conjunction with Ms Monk. I set out below the relevant facts and my reasons for my decision.
FACTS
For the most part, the facts were not contested and were agreed between the parties. Ms Monk, who was 69 at the time of the hearing before me, was injured in 1988. There is no dispute over Comcare’s ongoing liability in respect of her injury, which was sustained in the workplace. The injury has affected Ms Monk’s life substantially. She has had…

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 Monk and Comcare (Compensation)

Details

AGLC: Monk and Comcare (Compensation) [2018] AATA 224
Case: [2018] AATA 224
Decision Date: 16 February 2018

CaseChat Overview and Summary

This matter concerned an application by Ms Carmel Monk for a review of a decision by Comcare. Comcare had refused to purchase a new modified van for Ms Monk and had also refused to pay for repairs to her existing van. Ms Monk, who was injured in 1988 and confined to a wheelchair, required a modified van to enable her to enter, drive, and exit a vehicle unaided. The hearing was before N A Manetta SM.

The primary legal issues before the court were whether a new modified van constituted an "aid" or "appliance" under section 39(1)(e) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) that it was reasonable for Ms Monk to have, and whether Comcare was liable to pay for repairs to her existing 21-year-old modified van. The court also considered whether the purchase of a vehicle could, in certain circumstances, amount to "medical treatment" under section 4(1) of the Act, although the parties submitted that a previous decision on this point was incorrect.

The court affirmed Comcare's decision to refuse the purchase of a new van, finding that while the van was an aid or appliance, the purchase of a *new* van was not reasonable in the circumstances. However, the court set aside Comcare's decision to refuse payment for repairs to Ms Monk's existing van. The court reasoned that Comcare should be given the option to either repair the current van or purchase a second-hand vehicle and modify it to meet Ms Monk's needs, with the expectation that Comcare would make a sensible choice in consultation with Ms Monk.

Orders

Orders of the court

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Background

Background to the litigation

So far as Comcare’s decision to refuse to purchase a new van is concerned, I would affirm the decision under review. In so far as Comcare has refused to pay for the repair of Ms Monk’s van, I would set aside Comcare’s decision and substitute a decision that Comcare must at its option repair the van or buy Ms Monk a second-hand vehicle and modify it. I would expect Comcare to make a sensible choice in that regard in conjunction with Ms Monk. I set out below the relevant facts and my reasons for my decision.FACTS For the most part, the facts were not contested and were agreed between the parties. Ms Monk, who was 69 at the time of the hearing before me, was injured in 1988. There is no dispute over Comcare’s ongoing liability in respect of her injury, which was sustained in the workplace. The injury has affected Ms Monk’s life substantially. She has had some 13 spinal operations and she is confined to a wheelchair. Ms Monk‘s physical limitations prevent her from entering a standard vehicle unaided. In 1996, she requested Comcare to provide her with a modified van. That claim was initially denied by Comcare, but this Tribunal allowed Ms Monk’s application for review.[1] The van in question was found by the Tribunal to be a form of medical treatment for which Comcare was liable to pay compensation.[1] See Re Monk and Comcare (1996) 43 ALD 677 Both parties’ representatives submitted to me that this earlier decision was incorrect, given the full Federal Court’s decision in Heffernan v Comcare[2] dealing with the scope of the phrase “medical treatment” in s 4(1). I am prepared to act on this view in deciding Ms Monk’s application, but I would note that, as I read the case, the Court did not decide that in no circumstances can the purchase of a vehicle amount to “medical treatment”. [2] [2014] FCAFC 2; 218 FCR 1. Ms Monk’s claim proceeded before me on the basis that a new, modified van is an “aid” or “appliance” under section 39(1)(e) of the Act that it is reasonable for her to have. This question was not decided by the full Federal Court in Heffernan v Comcare. I shall come to that argument in due course; but to return to her history, I note Ms Monk took possession of her new VW transporter van in 1996. It is fitted with a special ramp that allows her to enter the vehicle whilst in her wheelchair and without assistance from another person. The driver’s side of the cabin has been modified to allow her to move herself from the wheelchair to the driver’s seat with a degree of ease. Ms Monk is able to enter, drive, and exit the van unaided. The van is now some 21 years old. It is accepted by Comcare that in its present condition, the van is unreliable and unsafe. On the evidence before me, it is not beyond repair, however. Ms Monk took the van to a Toyota dealer and obtained a repair quotation. I understand from the evidence that the van would cost some $9,000 to repair. I note here that a quotation from a repair shop specialising in VWs would have been more helpful. Moreover, more than one quotation would have enabled a better-informed decision to be reached. No issue arose between the parties concerning the repair cost, however, and I shall assume that the figure of $9,000 is broadly reliable.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This is an application by Ms Carmel Monk seeking a review of a decision of the respondent Comcare. Comcare has refused to pay for the purchase and modification of a new van to assist Ms Monk in her transport needs. The claim was advanced under s 39(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Due to her disability, Ms Monk is unable to drive a vehicle that is not modified. I would note at the outset that she is not able to drive a modified sedan, but requires a van. I note further that Comcare has also determined that it is not liable to pay for repairs to Ms Monk’s existing van. At the hearing before me, Ms Monk was represented by Ms Clark; Comcare, by Ms Walker.SUMMARY OF CONCLUSION So far as Comcare’s decision to refuse to purchase a new van is concerned, I would affirm the decision under review. In so far as Comcare has refused to pay for the repair of Ms Monk’s van, I would set aside Comcare’s decision and substitute a decision that Comcare must at its option repair the van or buy Ms Monk a second-hand vehicle and modify it. I would expect Comcare to make a sensible choice in that regard in conjunction with Ms Monk. I set out below the relevant facts and my reasons for my decision.FACTS For the most part, the facts were not contested and were agreed between the parties. Ms Monk, who was 69 at the time of the hearing before me, was injured in 1988. There is no dispute over Comcare’s ongoing liability in respect of her injury, which was sustained in the workplace. The injury has affected Ms Monk’s life substantially. She has had some 13 spinal operations and she is confined to a wheelchair. Ms Monk‘s physical limitations prevent her from entering a standard vehicle unaided. In 1996, she requested Comcare to provide her with a modified van. That claim was initially denied by Comcare, but this Tribunal allowed Ms Monk’s application for review.[1] The van in question was found by the Tribunal to be a form of medical treatment for which Comcare was liable to pay compensation.[1] See Re Monk and Comcare (1996) 43 ALD 677 Both parties’ representatives submitted to me that this earlier decision was incorrect, given the full Federal Court’s decision in Heffernan v Comcare[2] dealing with the scope of the phrase “medical treatment” in s 4(1). I am prepared to act on this view in deciding Ms Monk’s application, but I would note that, as I read the case, the Court did not decide that in no circumstances can the purchase of a vehicle amount to “medical treatment”. [2] [2014] FCAFC 2; 218 FCR 1. Ms Monk’s claim proceeded before me on the basis that a new, modified van is an “aid” or “appliance” under section 39(1)(e) of the Act that it is reasonable for her to have. This question was not decided by the full Federal Court in Heffernan v Comcare. I shall come to that argument in due course; but to return to her history, I note Ms Monk took possession of her new VW transporter van in 1996. It is fitted with a special ramp that allows her to enter the vehicle whilst in her wheelchair and without assistance from another person. The driver’s side of the cabin has been modified to allow her to move herself from the wheelchair to the driver’s seat with a degree of ease. Ms Monk is able to enter, drive, and exit the van unaided.

Ratio Decidendi

Legal Principle Established

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