Newcastle Regional Public Tenants Council Incorporated v Grant
[2005] NSWWCCPD 2
•12 January 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Newcastle Regional Public Tenants Council Incorporated v Grant [2005] NSW WCC PD 2
APPELLANT: Newcastle Regional Public Tenants Council Incorporated
RESPONDENT: Kaye Grant
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC12103-03
DATE OF ARBITRATOR’S DECISION: 5 December 2003
DATE OF APPEAL DECISION: 12 January 2005
SUBJECT MATTER OF DECISION: Section 60(1)(a); insufficient evidence; decision based on unqualified opinion; decision not based on logical and probative evidence; misdirection as to the law.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Hunt & Hunt Lawyers
Respondent: Armstrongs Solicitors
ORDERS MADE ON APPEAL: That part of the decision of the Arbitrator of 5 December 2003 that is the subject of this appeal, namely the award of “2.d. deluxe king size single bed” and “2.i. Toyota Tarago GLX Automatic Motor Vehicle including electric winch/hoist” is revoked and the following decision is made in its place:
2. The Appellant Employer is to pay as compensation under section 60 of the Workers Compensation Act 1987, the Respondent Worker’s expenses for the supply to the Respondent Worker, of the
following items:
d. deluxe king size single bed as claimed;
i. Toyota Tarago GLX Automatic Motor Vehicle, including electric winch/hoist, less the fair market or trade-in value of the Respondent Worker’s current motor vehicle, as the circumstances dictate;
2A. Should the parties be unable to agree upon the fair market or trade-in value of the Respondent Worker’s current motor vehicle, a professional valuation of that vehicle is to be obtained and the Appellant Employer is to pay the costs of any such valuation.
The costs of the appeal are to be paid by the Appellant Employer, as agreed or assessed.
BACKGROUND TO THE APPEAL
While employed by the Newcastle Regional Public Tenants Council Incorporated, the Appellant Employer, Mrs Kay Grant, the Respondent Worker, suffered injuries in falls she suffered at work on 26 October 1987 and 4 September 1989. In her statement of 18 June 2003, Mrs Grant states that she has undergone spinal fusion surgery but this was not successful. She states that she suffers constant and unremitting pain and has undergone treatment, unsuccessfully, in an effort to obtain relief. She says that her condition has gradually deteriorated over the years, and for a number of years she has been confined to her bed or to a wheelchair. She is unable to walk without assistance, and also requires assistance to carry out “the tasks of every day living”. This includes “dressing, personal hygiene, preparation of meals, shopping, washing clothes, changing bed linen, cleaning…”. Mr Grant now undertakes most of the domestic duties. She states that she eats most meals while in bed and when she leaves the house she must use the wheelchair. She is routinely assisted by her husband who himself, is not in good health. She has had assistance from the Hunter Nursing Agency. The fact that Mrs Grant has a “substantial disability and impairment”, as observed by the Arbitrator, is not disputed.
On 10 July 2003 Mrs Grant lodged an Application to Resolve a Dispute in the Commission, indicating that “The insurer has not approved all of the items that have been recommended by the Occupational Therapist as reasonable and necessary”, and seeking an award pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act). In that Application the information provided about Mrs Grant’s injury was described as:
“Injury to the back, pelvis, both legs occurring as a result of the following incidents:
1.26/10/87 slipping on a tiled floor landing on her buttocks
2.22/6/88 right foot brushed by chair
3.04/09/89 fell on a greasy floor in a washroom
4.From 26/10/87 to 04/09/89 repetitive and continuous nature of her employment requiring continuous lifting, bending.”
A schedule of aids and equipment claimed was attached to the Application.
On 5 December 2003 the Arbitrator made the following determination:
“The determination of the Commission in this matter is as follows:
1. That part of the proceedings that relates to the Applicant’s claim for compensation under section 60AA of the Workers Compensation Act for the provision of gratuitous domestic assistance be discontinued.
2. The Respondent pay as compensation under section 60 of the Workers Compensation Act the Applicant’s expenses for the supply to the Applicant of the following items:
a. Frame walker with brakes
b. Unpropelled shower chair
c. Alterations to be done to the Applicant’s place of abode by Home Modifications Lake Macquarie/Newcastle consisting of alterations to the bathroom including glass doors to shower, timber wedge for chair access to bathroom and toilet, timber ramp for wheelchair access to garage and construction of sturdier ramp at front door
d. Deluxe King single bed
e. Overtoilet aid
f. Overbed table
g. Porta Potty
h. Split system air conditioner for bedroom
i. Toyota Tarago GLX Automatic Motor Vehicle, including electric winch/hoist
j. Lambswool overlay for bed
k. Replacement manual wheelchair
3. The Respondent pay the Applicant’s costs as assessed or agreed.”
On 19 January 2004 the Appellant Employer lodged in the Commission an Application to Appeal Against Decision of [an] Arbitrator, together with an Application to Extend Time for Making the Appeal pursuant to Rule 77(8) of the Workers Compensation Commission Rules 2003 (the Rules). The appeal was registered in the Commission on 20 January 2004.
In the appeal document headed “Grounds of Appeal” the Appellant Employer states:
“The Appellant seeks to appeal the orders made by the arbitrator contained in the Certificate of Determination in relation to the Toyota Tarago dated 5 December 2003 on the following grounds:
1. That there was insufficient evidence for the Arbitrator to conclude the Toyota Tarago and the Deluxe King Single Bed is [sic] a curative apparatus.
2. The Arbitrator in part based his decision on unqualified opinion.
3. The Arbitrator failed to base his decision on evidence which is logical and probative.
4. That the Arbitrator misdirected himself as to the law.”
In the appeal document headed “Application for Leave to Appeal the Decision of the Arbitrator pursuant to section 352 of the Workplace Injury Management Act 1998 [sic]”, the following statements were included:
“Agreement at teleconference was reached to pay for various items. The following items
were disputed at Conciliation/Arbitration. These include:
1.A Toyota Tarago.
2.A deluxe single bed.
3.Air conditioning unit.
4.Lambs wool overlay.
5.Over bed table.
The Appellant Employer appeals that part of the decision of the Arbitrator to pay for
1.A Toyota Tarago
2.A King Size Deluxe Single Bed
The Toyota Tarago the subject of this claim has been estimated to cost $61,162.00.
A deluxe fully adjustable king size single bed estimated to cost $6,160.00. (Please refer to
the Occupational Therapy report prepared by Ms Elvish dated 11 September 2002).”
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commision may exercise functions under this Act without holding any conference or formal hearing.
The Appellant Employer submits that a proper consideration of the matter requires that a hearing should take place; that the parties ought to be able to put their submissions in detail; that the parties should be able to engage in a dialogue with the Presidential Member appointed to determine the matter, and should be available to answer queries raised by the Presidential Member after reading the “lengthy transcript, submissions and authorities.” The Respondent Worker makes no submission in this regard. Having carefully read all of the documents before me, including the transcript of proceedings before the Arbitrator and the evidence that was before him in those proceedings, and taking into account the submissions made by the Appellant Employer, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
The amount of compensation at issue on appeal in this matter exceeds $5,000 and is at least 20% of the amount awarded in the decision appealed against. Section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is satisfied.
Section 352(4) of the 1998 Act provides that an appeal can only be made within 28 days of the decision appealed against. This appeal was lodged out of time and the Appellant Employer has made an application for an order extending the time for making the appeal, pursuant to Rule 77(8). Rule 77(8) is made under an express power conferred by section 364(1)(g) of the 1998 Act. The Respondent Worker states “The appellant seeks an order extending time for lodging an appeal in the proceedings. That is a matter for the Commission and the respondent makes no submissions.”
Rule 77(8) provides:
“(8)The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The reason for the delay in lodging the appeal related to administrative difficulties in the Commission, and was exacerbated by the temporary loss, and delay in the provision of, the sound card from which the transcript of proceedings before the Arbitrator was made, as well as the intervening Christmas/New Year holiday period. The Appellant Employer put a request to the Registrar for an extension of time to lodge the appeal and was advised to make a formal application to the Presidential member to whom the appeal would be allocated. The submissions put by the Appellant Employer are well documented and substantiated.
Although it was open to the Appellant Employer to lodge the appeal within time and follow this in due course with the detailed grounds and submissions, in order to meet the 28 day time limit, having read the transcript and other documents that are before me in this matter, I can appreciate the argument that the transcript was required in order to properly prepare the appeal in this matter. Needless to say, this will not always be the case in appeals, generally. However, in my view, the circumstances surrounding the delay are exceptional and to lose the right to seek leave to appeal in this matter would work demonstrable and substantial injustice (see also Gallo v Dawson [1990] 93 ALR 479). The difficulties that gave rise to the delay arose wholly in the Commission and were no fault of the Appellant Employer. Unfortunately, the situation was not assisted by the particular time of the year during which these events occurred.
In the prevailing exceptional circumstances of this matter, I order that the time for making this appeal be extended to 20 January 2004, the day on which the document, Appeal Against Decision of Arbitrator, was registered in the Commission.
SUBMISSIONS AND EVIDENCE
The Appellant Employer
The grounds of appeal are set out in paragraph 5 above. However, the Appellant Employer makes its submissions under four specific headings, after making the following, introductory statement:
“The Appellant Employer submits that the Arbitrator failed to consider all the evidence, and in part based his opinion on unqualified opinion, and misdirected himself to the law in finding that the Toyota Tarago and the Deluxe Single King Bed were ‘curative apparatuses’ as defined under section 59 and so finding that as such they are ‘medical or related treatment’ that are ‘reasonable and necessary’.”
First, the Appellant Employer submits that there was insufficient evidence for the Arbitrator to conclude that the Toyota Tarago was a curative apparatus.
Reference is made to page 26 of the transcript of proceedings before the Arbitrator (the transcript) where he states that any apparatus that has a mechanical control that enhances or provides therapy, enhances the quality of life of Mrs Grant or that provides therapy or alleviates or ameliorates her symptoms, is a curative apparatus. In citing Thomas v Ferguson Transformers Pty Limited [1979] 1 NSWLR 216, (Thomas) Hutley J at 219-220, the Appellant Employer submits that it was not open to award the Respondent Worker the Toyota Tarago as there was no evidence to support its curative nature.
The Appellant Employer further submits that neither the Orthopaedic Surgeons Drs Smith and Isaacs nor the General Practitioner Dr Pawsey made any comment as to whether a Toyota Tarago would enhance the quality of life of Mrs Grant, alleviate or ameliorate her symptoms or provide therapy. It further submits that the Occupational Therapists Ms Trudie Warner and Ms Alison Elvish are unqualified to comment on the curative nature of a Toyota Tarago as they are not treating specialists or qualified to comment on how the provision of such a vehicle would assist Mrs Grant physically or psychologically. There is nothing contained in the opinions which explains the curative benefit to be derived by Mrs Grant from the provision of a Toyota Tarago. The Appellant Employer cites Harbison v Harbison (2000) 19 NSWCCR 548 (Harbison) in which Armitage J considered whether an item was a curative apparatus, and submits that there is no evidence to support the proposition that the Toyota Tarago is a curative apparatus, in the instant case. Reference is also made to Woollahra Council v Beck (1996) 14 NSWCCR 179 (Beck) in which similar evidence was considered.
It is further submitted that while Ms Warner considered that the vehicle and other items would increase Mrs Grant’s independence “there is no physical or psychological reason explaining why this independence would allow this item to be considered ‘curative’.” The Appellant Employer submits that the benefit would not accrue to Mrs Grant, “but because it has a significant physical benefit for Mrs Grant’s husband, a person not entitled to be compensated.” Moreover, it was submitted that there is no physical or psychological reason provided in Ms Elvish’s report to demonstrate why the need for Mrs Grant to be as independent as possible, is “desirable”, in terms of the assistance she requires to transfer in and out of a motor vehicle.
The Appellant Employer submits that the Arbitrator did not have sufficient evidence from a suitably qualified person that would allow him to conclude greater independence brought about by a new Toyota Tarago is curative. A medical provider involved in the treatment or a person medically qualified to comment on the effect of the provision of a new motor vehicle on Mrs Grant’s physical or psychological state is essential to determine whether in fact that apparatus can be considered to be curative. It is submitted in the circumstances that the Arbitrator failed to consider all of the evidence; that he partly based his decision on unqualified opinion, and he failed to base his decision on evidence that is logical and probative.
The second specific matter put by the Appellant Employer is that the Arbitrator misinterpreted the phrase “reasonably necessary” in ordering that the Toyota Tarago was a reasonably necessary medical expense.
Bartolo v Western Sydney Area Health Service (1997) 14 NSWCCR 233 (Bartolo); Pelama Pty Ltd v Blake (1988) 4 NSWCCR 264 (Blake), and Rose v Health Commission (NSW) (1986) 2 NSWCCR 32 (Rose) are cited in support of its submissions that prudent consideration of medical opinion as to the appropriateness of the item, alternative treatment, cost, degree of effectiveness actual or potential and usage in similar cases should be taken into account. It is submitted that the Arbitrator failed to afford due weight to the alternative suggested to the provision of the Toyota Tarago and its cost-effectiveness, including modifications to Mrs Grant’s current motor vehicle that included an electric winch and hoist. The Appellant Employer says that there was no evidence suggesting that a trial of the alternative had been considered by Mrs Grant. Furthermore, the basis upon which the alternative was dismissed was flawed, and that the Toyota Tarago cannot be considered a reasonably necessary medical expense.
It is submitted that Mrs Grant’s reason for obtaining the Toyota Tarago was that it would assist her entering and alighting from the vehicle. However, on her own admission the alleviation of pain was minimal and again on her own admission, she could not comment as to whether the travelling caused any lessening of pain, having had only two test drives. In conclusion, it is submitted that due weight was not given to the decision in Rose.
The third specific matter in the Appellant Employer’s submissions is that there was insufficient evidence for the Arbitrator to conclude that the deluxe single king size bed was a curative apparatus.
It is submitted that there was no evidence before the Arbitrator that allowed him to conclude that a more comfortable bed was therapeutic and therefore, curative, on the basis of the criteria set out in Thomas that any apparatus that may involve a “continual war with disease, atrophy of the muscles by lack of use, and even psychological decay by reason of lack of something to do…is a curative apparatus.”
The Appellant Employer further submits that neither Ms Warner nor Ms Elvish are sufficiently qualified to comment on any physical or psychological benefits the Respondent Worker may experience by having the new bed and neither Dr Isaacs, Dr Smith or Dr Pawsey made any comment as to how the provision of such a bed would psychologically or physically assist Mrs Grant. Finally, the Arbitrator himself is not qualified to reach his conclusion that if the bed resulted in greater independence and sleeping comfort for Mrs Grant, it would result in a physical or psychological benefit to her.
The fourth specific matter put by the Appellant Employer was that the Arbitrator misinterpreted the phrase “reasonably necessary” in ordering that the single deluxe king size bed was a reasonably necessary medical expense. Moreover, his decision is partly based on unqualified opinion. The Arbitrator awarded the bed to Mrs Grant because “she spends 75% of her time in the bed to the extent that she, [sic] there is a bed available that would make her more comfortable, is clearly, in my view therapeutic and on that basis I again find the deluxe king single bed that she seeks is a curative apparatus and again I think that the provision of that is reasonably necessary treatment.”
As previously submitted, Rose is cited as authority that whether an item is reasonably necessary, would include prudent consideration of medical opinion as to appropriateness, alternative treatment, cost and degree of effectiveness, actual or potential. In this matter it is submitted, the new bed is required simply because her current bed is uncomfortable and that it is not reasonable for a new bed to be a deluxe single king size bed at a cost of around $6,000. There is no evidence to support the view that this is the only bed that she could have and Mrs Grant put forward no alternatives. Finally, it is submitted that there was insufficient evidence before the Arbitrator allowing him to conclude on a cost benefit basis, that the single deluxe king size bed is a reasonably necessary expense.
The Respondent Worker
The Respondent Worker points out that she resides with her husband who is her primary carer. Because of the state of his health, his ability to assist her has been reduced. Her claim was brought seeking a range of aids and curative apparatuses as recommended by Ms Warner, Occupational Therapist, who prepared a report dated 13 September, 2001. An opinion was also obtained from Ms Emma Kemmis, Occupational Therapist who prepared a report dated 5 February 2003. An assessment of Mrs Grant’s domestic and personal care was conducted by Dollina Renton, and a report dated 11 March 2001, was prepared. Mrs Grant also relies upon the medical opinion of Drs Smith and Isaacs. The Appellant Employer obtained an expert opinion from Ms Elvish, who prepared reports dated 11 September 2002 and 16 September 2002.
It is submitted that the deluxe king size single bed is required by Mrs Grant to lessen her pain, to make it easier for her to get into and out of bed and to move around to ease the impact on pressure points. She remains in bed for most of the time. Ms Warner recommended the provision of such a bed, and Ms Elvish recommended that such a bed ought to be used for a trial period, and if a significant change occurred in Mrs Grant’s independence and comfort, that it should be purchased. As Mrs Grant has had the opportunity of using an electrically adjusted bed during periods of hospitilization, a trial period is not necessary. It is submitted that the evidence overwhelmingly supports the finding that a deluxe king single bed is a curative apparatus in line with the reasoning in Thomas.
The Respondent Worker submits that both Ms Warner and Ms Elvish considered that the provision of the Toyota Tarago with appropriate modifications should be provided. No alternative has been proposed by the Appellant Employer. Mrs Grant has very limited mobility and requires pain injections administered by a community nursing agency three times each day, to control her pain. It is submitted that Mrs Grant’s pain management problem places her in a different category to a paraplegic with no pain concerns, and creates an added impediment to her ability to travel. She has had an opportunity of a trial period of a Toyota Tarago. Mrs Grant has a problem with the pain she experiences when transferring from a wheelchair into a conventional vehicle such as her current vehicle, which is lower than her wheelchair. “Also, given the respondent’s [Mrs Grant’s] husband’s health concerns, the effect of the respondent being deprived of a means of transport which she can use without increased pain would be to render her effectively unable to travel.” It is further submitted that provision of such a vehicle would improve Mrs Grant’s social and general functioning, which were considerations regarded as significant by Armitage J in Harbison.
The Respondent Worker submits that the Arbitrator’s decision is soundly based on evidence that is logical and probative.
It is submitted that an occupational therapist is a person who is specially trained in assessing the needs of disabled people. It is pointed out that one of the occupational therapists in this matter, Ms Elvish, was qualified on behalf of the Appellant Employer. The Respondent Worker submits that there is nothing in the medical opinion in the case that is inconsistent with the opinions of the occupational therapists. The Arbitrator was entitled to accept the opinions of Ms Warner, Ms Kemmis and Ms Elvish “and such evidence is generally admissible under Section 79 of the Evidence Act there clearly being a field of expertise in occupational therapy.”
The Respondent Worker submits that the Appellant Employer has adopted a very narrow view of the meaning of “curative”, and that the Arbitrator has applied the correct test as set out in Thomas. The provision of an appropriate motor vehicle to Mrs Grant will assist her physically by reducing the amount of pain she experiences when travelling, and psychologically by giving her some independence. This is especially significant in circumstances where her husband is in very poor health and she cannot rely upon him in the way that she has done so in the past. Moreover, there is a possibility that she may be able to drive herself, “subject to medical clearance in the future.”
It is argued that the real complaint by the Appellant Employer is that the Arbitrator erred in law in failing to reject the Respondent Worker’s claims on the basis of a cost/benefit analysis. The factors to be considered in assessing whether provision of any particular curative apparatus or medical treatment was reasonably necessary are set out in Blake. The only alternative suggested by the Appellant Employer was an ineffective upgrading of Mrs Grant’s current motor vehicle, achieving no meaningful result. On the other hand, the benefits in the purchase of the Toyota Tarago would be beneficial in terms of getting in and out of the vehicle and as a means of transport. Her ability to socialise and engage in some of the tasks of ordinary living would be enhanced and she would achieve some degree of independence, which is highly desirable, given the ill health of her husband.
The Respondent Worker submits that to dismiss the request for the vehicle on the basis that her reported level of pain when using a conventional vehicle is an increase only from 8 out of 10 [in the Tarago] to 9 out of 10 is dismissive of the severe pain which Mrs Grant experiences and ignores the fact that travelling in her present motor vehicle is causing pain, not alleviating it. It is submitted that the provision of the motor vehicle would be effective in reducing her pain and providing social benefits to her. It is further submitted that the criticisms with regard to the Arbitrator’s findings on the evidence and the findings in Harbison are not borne out by the evidence. Mrs Grant gave direct evidence of the ways in which her medical condition can be improved by provision of the curative apparatus awarded to her and there is no demonstrated error of law that would warrant any interference with the Arbitrator’s findings. In terms of the deluxe king size single bed, it is submitted that this is so clearly a reasonably necessary aid or curative apparatus that the award in that regard should not be disturbed. The items are reasonably necessary and meet the test in Blake. The only alternative that was suggested by the Appellant Employer was an upgrading of Mrs Grant’s current vehicle. This “would not achieve any meaningful result in this case as the respondent would face the same difficulty with getting in and out of the vehicle as she experiences at present.”
DISCUSSIONS AND FINDINGS
A Presidential member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.
Is there sufficient evidence to conclude that the Toyota Tarago and the deluxe king size
single bed are each a curative apparatus?
Section 60(1) of the 1987 Act provides:
“60Compensation for cost of medical or hospital treatment and rehabilitation etc
(1)If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any occupational rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
Note.Compensation for domestic assistance is provided for by section 60AA.”
Section 59 of the 1987 Act provides that medical or related treatment includes any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment.
In Harbison, Armitage CCJ, citing Thomas, referred to the following comments of Hutley JA in that case, at 219-220:
“This [the supply and use of a special hydrotherapy pool] treatment maintains her state of health and slows, or perhaps prevents, its deterioration. Two attacks were made on this reasoning – first it was said that this was not curative, and second, it was not apparatus. As to the first, the argument was that to keep an incapacitated person in the same state was not to cure him, and an apparatus which did not cure was not curative. This is a pettifogging argument – the process of dealing with an incapacitated person may involve a continual war with disease, atrophy of the muscles by lack of use, and even psychological decay by reason of lack of something to do. Any apparatus which helps in this way is a curative apparatus.”
His Honour Judge Armitage stated:
“What I glean from this case [Thomas] is that apparatus may be ‘curative’ even if it does not ‘cure’ the condition suffered by an injured worker, in the sense of alleviating it totally, and that it may still be so if it assists in the ‘continual war with disease, atrophy of the muscles by lack of use, and even psychological decay by reason of lack of something to do’. Those last remarks seem to me to have particular application to the equipment sought in this case, and indeed to fit it perfectly. Thomas also seems to indicate that if something is a ‘mechanical contrivance’, it may be ‘apparatus’.
The provision of a heated swimming pool to the injured worker was held in Thomas to fall within the definition of “medical treatment”, as the particular treatment in this case, was amongst other things, of therapeutic assistance to the worker.
His Honour Judge Armitage also referred to Beck where Neilson J held that provision of taxi travel for social purposes for a worker who was legless as a result of work injury in order that he may attend, amongst other places, a local hotel to enjoy an active social life, and thus ameliorate his psychological, if not his physical condition, was provision of “curative apparatus”. He also noted that Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318, appears to be clear authority for the proposition that a modified or alternative vehicle may be “curative apparatus”. Finally, His Honour noted that Truss J in Sinanian v WorkCover Authority (NSW) (1999) 19 NSWCCR 83 held that a computer could be a “curative apparatus” on the authority of Thomas, and said that the evidence suggested that the computer was undoubtedly contributing positively to the injured worker’s “cognitive linguistic rehabilitation program and … the use of the keyboard and mouse have benefited his co-ordination and control of movement.” On the evidence before her, Her Honour was satisfied that the use of a computer “has and will alleviate or mitigate the effects of his injury.”
In Beck it was held that providing a worker with social activities was, in the special circumstances of that case, therapeutic or curative and conveying him to such activities could be seen as part and parcel of the same process. The Court said that the use of the words “treatment given” indicate that the worker is essentially the passive recipient of some other person’s ministrations, which would extend to treatment by a psychologist, counsellor, acupuncturist “and so on”. While the provision of conveyance by taxi could not be regarded as therapeutic treatment as such under paragraph (b) of the definition in section 59 of the 1987 Act, taxi travel to and from necessary social activities, in the special circumstances of that case, was “curative apparatus” within paragraph (e) of the definition of “medical and related treatment”. It was also pointed out in that case that a specially purchased Mitsubishi Star Wagon, modified for use by the injured worker was held in Thomas to be a “curative apparatus”.
In Coomber v Red Funnell Fisheries Newcastle Pty Ltd (1998) 16 NSWCCR 558 the provision of a new motor vehicle with power steering and automatic transmission was held, on the facts in that case, not to be a curative apparatus. The injured worker had suffered permanent impairment of the back and a loss of the efficient use of his left leg. His old car was low to the ground and had manual transmission. The injured worker said that he had difficulty in operating his old car because of its small size and the manual transmission. In rejecting the claim for the new car, the Court awarded what it would have cost to install automatic transmission in the workers current motor vehicle.
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 section 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 Harbison, Armitage J said that the fact that someone other than the injured worker may benefit from the provision of a curative apparatus is irrelevant to the determination as to whether the provision of the items are reasonably necessary within the meaning of section 60(1) of the 1987 Act. Nevertheless, if the benefit accrues only to some other person and there is no benefit to the injured worker, the item cannot be said to offer therapeutic assistance to the injured worker. In these circumstances, it can be neither a curative apparatus nor reasonably necessary. In the instant case, there is evidence of Mr Grant’s diminishing ability, by reason of his declining health, to assist Mrs Grant generally, including getting her from her wheelchair to the car and back again.
The Arbitrator accepts Mrs Grant as a witness of truth, an assessment that he is entitled to make. He says that both occupational therapists Ms Warner and Ms Elvish consider that the provision of the Tarago would provide Mrs Grant with greater independence in that it would enable her to “transfer to the car without the assistance of her husband.” The Arbitrator accepts that Mrs Grant had limited experience in trialling a Tarago on two occasions only. On each occasion she experienced different pain levels. On her evidence, the pain experienced while transferring to her wheelchair to the Tarago is slightly less than she experiences when she transfers to her current vehicle, which is lower to the ground.
The Arbitrator also accepted Mrs Grant’s evidence that during the course of a drive, and following a drive, she experiences less pain with the Tarago than her current vehicle. However, her evidence in terms of the comparative difference in travelling in each vehicle is not as persuasive as her evidence about experiencing pain when getting in and out of the vehicle. However, in clarification to the Arbitrator, Mrs Grant agreed that her pain did not persist as long once in the Tarago, as opposed to her current vehicle. She said “I think being able to relax more helps, helps the pain. I think the psychologist can tell you that.” The Arbitrator also accepted her evidence that she could go out to social activities more often if she could travel in a Tarago, rather than in her current vehicle. The Appellant Employer points to part only of the statement made by the Arbitrator set out at page 26 of the transcript, as to “curative apparatus”, in relation to the Toyota Tarago. However, The relevant part of the Arbitrator’s statement reads in full:
“Now there have been numerous decisions of the Court considering what is a curative apparatus. The similar [sic] one I suppose, or the most important one is in Thomas’s case which in my view is authority for the proposition that a curative apparatus does not have to be something that cures. The other decisions of the Court, the Compensation Court principally have [sic] formulated that principle based upon the circumstances that confronted the Court, that formed that principle in a variety of ways. I think it’s fair to say that anything that, any apparatus that has a mechanical control that enhances or provides therapy, I should say that enhances the quality of life of Mrs Grant, or that provides therapy or alleviates or ameliorates her symptoms is a curative apparatus.”
The Arbitrator then went on to say:
“Now on that basis I am satisfied that the Tarago motor vehicle is a curative apparatus. I think that it enables Mrs Grant to get about with less pain and as a consequence of that she would get about more often, get about to social activities more often and then I think she said go to do things such as shopping with her husband more often which would enhance the quality of life, so on that basis I am satisfied it is a curative apparatus.”
The Arbitrator made similar observations with regard to the deluxe king size single bed. He said at page 27 of the transcript:
“Now it was Mrs Grant’s evidence today that she has in fact trialled on numerous occasions an electric bed in hospital. She is saying that the bed would enable her to raise at the push of a button her head, shoulders, back, legs, and also it would assist her in getting in and out of bed. Again, it seems to me that, that [sic]it would be enhancing the quality of Mrs Grant’s life. She spends 75% of her time in her bed to the extent that she [sic], there is a bed available that will make her more comfortable, is clearly, in my view, therapeutic, and on that basis I again find that the deluxe king size single bed that she seeks is a curative apparatus and I again think that the provision of that is reasonably necessary treatment.”
However, the Arbitrator also pointed out that Ms Elvish did not support the provision of the bed at this point because “she cannot find that it’s reasonably necessary treatment because it has not been trialled.” It seems that Mrs Grant had never trialled the actual bed sought, but only other beds with similar features.
It is clear and uncontested that Mrs Grant has suffered a serious injury and is in a state of constant pain and discomfort. In terms of the provision of the Toyota Tarago the Appellant Employer argued before the Arbitrator that Mrs Grant’s evidence did not “equate to any great therapeutic assistance”. It was not argued that there was none. On Mrs Grant’s evidence alone, which stands largely uncontradicted, both items provide a degree of assistance to her in dealing with and alleviating her symptoms. On the authorities cited, and having regard to Mrs Grant’s circumstances, the items provide the necessary therapeutic impact, in order to qualify as a curative apparatus. The Toyota Tarago provides some alleviation of pain and allows Mrs Grant to participate more actively in the routine and normal pursuits of life, as well as pursuing as far as she is able, a reasonable social life outside of her home. Mrs Grant spends some 75% of her time in bed and the therapeutic impact of the bed sought, having regard to her injury and symptoms, is clear.
On the evidence and having regard to the cases cited, the Toyota Tarago and the deluxe single king size bed, each qualify as a “curative apparatus”, in the circumstances of this particular case, particularly when viewed in the context of the “continual war” as described in Thomas. In my view, the Arbitrator was entitled to arrive at this conclusion and I find no error in this regard. Whether these items were reasonably necessary is another matter.
Did the Arbitrator in part, base his decision on unqualified opinion?
The Appellant Employer submits that evidence from a “suitably qualified person” is required in order to establish the curative impact of the items in dispute, and this was not before the Arbitrator, sufficiently at least. It submits that the evidence of a medical provider involved in Mrs Grant’s treatment, medically qualified to comment on the effect of the provision of a new motor vehicle, is essential to determine whether it can be considered to be curative. It further submits that Ms Warner and Ms Elvish, occupational therapists, are not sufficiently qualified to comment on the benefits that Mrs Grant might derive from the provision of the deluxe king size single bed, and Drs Isaacs, Smith and Pawsey made no comment in this regard. Finally, it submits that the Arbitrator himself, is not qualified to reach the conclusion that the items are curative.
Mrs Grant describes in her evidence, the therapeutic impact of the disputed items. Her evidence is essentially that there is less pain and distress in getting in and out of a Tarago, particularly as her husband’s capacity to assist her physically is diminishing. Moreover, she states that her social life would improve if she had access to a Tarago. In terms of the bed, Mrs Grant’s evidence was that the use of a deluxe king size single bed as claimed, would enable her to move around with much less pain and discomfort. This is significant, given that she spends about 75% of her time in bed. Mrs Grant, being the injured worker, is well qualified to give an account of the symptoms of her injury, how these are managed from her point of view, including her actual experience in terms of what alleviates and ameliorates her pain and discomfort, and enhances the quality of her life. None of her evidence is contradicted by, or inconsistent with, the medical evidence that was before the Arbitrator. Her evidence goes to the heart of what provides a therapeutic benefit and what does not, in her particular circumstances.
There is nothing before me to indicate that the Arbitrator purported to arrive at his decision on the basis of any particular medical or similar expertise or training on his part. On my reading of the transcript, he arrived at his conclusions and decision, based on the evidence before him. The submission that he is “not qualified” in the sense suggested, to reach the conclusion that the items are curative, is not relevant. He is entitled to reach such a conclusion based on a consideration of the evidence and the application of the law. I can find nothing to suggest that he did not do so, in terms of the procedure that he followed.
The Appellant Employer’s submissions as to “unqualified opinion” relate to the question as to whether the disputed items are each a “curative apparatus” having the therapeutic benefit that is required, in the sense of assisting Mrs Grant physically or psychologically.
The definition of “medical or related treatment” in section 59(e) of the 1987 Act is not confined to what is medical treatment in the strict sense, alone. Relevantly in this case, it refers to “related treatment”, also. Medical treatment strictly speaking may be regarded as the treatment that is assessed and prescribed (although not necessarily personally administered) by medically qualified persons authorised to do so. The provision of a Toyota Tarago and a deluxe king size single bed is not “medical treatment” in this same strict sense, but for the purposes of sections 59 and 60 of the 1987 Act, is “related treatment” within the phrase that is comprised of “medical or related treatment”, defined in section 59(e) of the 1987 Act. In any event, it was recognized in Blake and Rose that the Legislature did not, and did not intend to, limit medical treatment to forms of treatment usually or ordinarily adopted by the medical profession generally for treatment of a particular injury. However, in each of these cases, the treatment being considered, and upon which the Court made its decision, was essentially “medical”, and not “related” treatment as in the instant case.
I do not agree with the Appellant Employer that the opinion of a medical practitioner is necessarily required in order to assess whether each of the disputed items were, in the circumstances of the instant case, curative apparatus. As stated by the Respondent Worker, an occupational therapist is a person who is trained to assess the needs of disabled persons. While there is some difference of opinion between Ms Warner, who provided a report for the Respondent Worker, and Ms Elvish, who provided her report for the Appellant Employer, both agree that the deluxe king size single bed should be provided to Mrs Grant for its therapeutic benefits. Ms Warner supported the provision of the bed forthwith, while Ms Elvish agreed that this could be done following a suitable trial of the actual bed. Both support the provision of the Tarago for therapeutic purposes.
In R v Peisley (1990) 54 A Crim R 42 (Peisley), His Honour Justice Wood, at 17, commented upon the value of evidence from psychologists compared with that of psychiatrists. In that case, His Honour did not suggest that the opinion of a person of particular qualifications ought to be preferred over another, by reason only of those qualifications, where each could legitimately express an opinion. His proposition was that a person being qualified in a particular field should not exceed the bounds of his or her field of expertise. Due weight will be given to each opinion, subject to that limitation. In my view, the Arbitrator was entitled to take the opinions of the occupational therapists into account in assessing the therapeutic value of the disputed items as curative apparatus, this being within the bounds of their specific field of professional expertise.
There is no evidence in this case, medical or otherwise, that is in conflict or is inconsistent with this opinion, and there is nothing before me to indicate that the Arbitrator in part, based his opinion on unqualified opinion. I find that the Arbitrator is not in error.
Did the Arbitrator fail to base his decision on evidence that is logical and probative?
Having regard to the above [paragraphs 38-62], I do not agree that the Arbitrator is in breach of Rule 70. There is nothing before me to demonstrate that the Arbitrator failed to consider the evidence before him or that he based his decision on evidence that is not logical and probative. I find no error on the part of the Arbitrator, in this regard.
Did the Arbitrator misdirect himself as to the law?
In Bartolo, Burke J said that the gravamen of the phrase [reasonably necessary] connoted necessity judged in accordance with reason, prudence, common sense and sound judgment. His Honour went on to say:
“’Necessary’ is the problem concept. It usually has connotations of something indispensable or imperative, something that cannot be done without. Yet that would seem a far too stringent test. In most illnesses or afflictions even simple analgesia could be done without. The patient could be more uncomfortable but would probably recover in much the same time span.
It seems to me that the basic approach is really the reverse. The question is, should the patient have this treatment or not. If it better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
Later in his judgment, His Honour said that some of the factors influencing a determination of the question of necessity or not, were suggested in Rose. They included appropriateness, available alternatives, relative costs, potential effectiveness and usualness.
In the instant case, it is submitted by the Appellant Employer that the Arbitrator did not consider these factors in arriving at his decision.
Specifically, the Arbitrator gave consideration to costs and alternatives in his decision to award the Toyota Tarago. A reading of the transcript, which includes the Arbitrator’s decision, makes it clear that he considered the award to be appropriate for the reasons that he gave, and he outlined the potential effectiveness of the items as the substantial basis of his decision. No specific reference is made to “usualness”, however, it is difficult to see how the provision of a motor vehicle and a bed, of the nature claimed, could be regarded as unusual in the particular circumstances of this matter. They are not novel, but even if they were, this would not necessarily exclude them (Rose).
The Appellant Employer offered to modify Mrs Grant’s existing vehicle in order to make it more usable having regard to her injury and disabilities. However, as the Arbitrator pointed out, this would not achieve the therapeutic benefit sought, that is, relief from pain when entering and leave the vehicle, the pain being incurred due to its limited height (and taking into account the diminishing ability of Mrs Grant’s husband to assist her in this regard). Whether travelling in a Tarago would offer a similar benefit is not so clear, although Mrs Grant said that the pain incurred by reason of entering the vehicle subsided more quickly in the Tarago than in her current vehicle. On the evidence, the Arbitrator is not in error in this regard.
The Arbitrator was required to make his decision on the evidence that was before him. No alternatives were put to him in relation to the bed claimed by Mrs Grant, and other than the modifications to her current vehicle that were adjudged to be ineffective, no other alternatives were put to the Arbitrator by the Appellant Employer with regard to the Tarago. It was open to the Appellant Employer to propose viable alternatives, but it did not do so. In my view, the evidence of and on behalf of Mrs Grant is sufficient in the circumstances, to enable the Arbitrator to arrive at his decision, in the absence of any such viable alternative.
In Blake, Burke J said, in citing Rose:
“If various alternatives existed for treatment the relative costs were a factor to be evaluated. There must be some cost/benefit analysis. If a high cost, minimally effective regime had been instituted where a low cost, maximally effective alternative existed the form may well be adjudged not reasonably necessary. Even where but one avenue of possible treatment existed it may be that its effectiveness was so minimal and its cost so great that it could not be considered reasonably necessary.”
The cost/benefit analysis referred to relates principally to alternatives that exist and that are before the Arbitrator. It is not the role of the Arbitrator to promote alternatives, this being the responsibility of the parties. However, the question remains as to whether the “possible treatment” that is proposed attracts a cost so great that it could not be considered reasonably necessary. There is no doubt that the cost of each item is more than would be the case to meet the requirements of a person without disabilities. Each could in given circumstances, be regarded as a luxury. However, Mrs Grant’s circumstances are far removed from this, and the nature of the items and the therapeutic benefits that they confer upon her must be considered. There is nothing before the Arbitrator that would necessarily lead him to the conclusion that the cost of each of the Toyota Tarago and the deluxe king size single bed, modified to meet the requirements of assisting to manage and alleviate the impact of Mrs Grant’s disabilities, are excessive, based on the facts and circumstances of this matter.
The only error or omission that the Arbitrator made was in not deducting the value of Mrs Grant’s existing motor vehicle and bed, from the award. While Mrs Grant is entitled to due compensation, she is not entitled to be enriched by the award. For practical purposes, her existing bed may be of little or no real monetary value, but that does not apply to her current motor vehicle. The “cost/benefit analysis” must include a deduction of the value of Mrs Grant’s current motor vehicle, from the cost of the Toyota Tarago, as claimed and awarded. How that is to be done is a matter for agreement between the parties, but it seems to me that if the circumstances permit, trading-in her vehicle on the Toyota Tarago would offer a transparent and fair valuation. If this is not acceptable to the Appellant Employer, and an agreement as to the value of the vehicle cannot be reached between the parties, the costs of any formal valuation obtained should be borne by the Appellant Employer.
The “treatment” referred to in section 60(1)(a) of the 1987 Act is treatment for which there is a reasonable necessity (Rose). Treatment is necessarily purposive and in a medical or therapeutic context, it relates to the management of disease, illness or injury by the provision of medication, surgery or other medical [or related] service designed to arrest or abate the progress of the condition, or to alleviate, cure or remedy that condition (Rose).
Having regard to the foregoing, I find that the Arbitrator did not misdirect himself as to the law and notwithstanding his omission which must be remedied, he did not err in finding that the disputed items were reasonably necessary, as “medical or related treatment” pursuant to section 60(1)(a) of the 1987 Act.
CONCLUSION
The appeal is largely unsuccessful and the Arbitrator has made no error of law, fact or discretion, aside from an incomplete “cost/benefit analysis”. The error is not fatal or such that the decision should be revoked and a new order made in favour of the Appellant Employer. Consequently, for the reasons given, that part of the Arbitrator’s decision that is appealed against, that is, the award of the Toyota Tarago and the deluxe king size single bed, is to be revoked and a new decision is to be made in its place, so that the deduction of the value of Mrs Grant’s existing motor vehicle, from the cost of the Toyota Tarago as awarded, is included.
DECISION
That part of the decision of the Arbitrator of 5 December 2003 that is the subject of this appeal, namely the award of “2.d. deluxe king size single bed” and “2.i. Toyota Tarago GLX Automatic Motor Vehicle including electric winch/hoist” is revoked and the following decision is made in its place:
2. The Appellant Employer is to pay as compensation under section 60 of the Workers Compensation Act 1987, the Respondent Worker’s expenses for the supply to the Respondent Worker, of the following items:
d. deluxe king size single bed as claimed;
i.Toyota Tarago GLX Automatic Motor Vehicle, including electric winch/hoist, less the fair market or trade-in value of the Respondent Worker’s current motor vehicle, as the circumstances dictate;
2A.Should the parties be unable to agree upon the fair market or trade-in value of the Respondent Worker’s current motor vehicle, a professional valuation of that vehicle is to be obtained and the Appellant Employer is to pay the costs of any such valuation.
COSTS
The costs of the appeal are to be paid by the Appellant Employer, as agreed or assessed.
Gary Byron
Deputy President
12 January 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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