Date: 12 February 2004
Place: Melbourne
Decision:The Tribunal sets aside the decision under review. In substitution, the Tribunal varies the determination made on 16 December 2002 to provide:
Comcare is liable under s 39(1) of the Safety, Rehabilitation and Compensation Act 1988 to pay compensation of $780.00 to Mr Pollanen, being the cost of modification of his motor vehicle, by supply and installation of cruise control.

[sgd] Mrs Joan Dwyer
Senior Member

COMPENSATION – compensable injury to right knee – pain driving long distances – claim for cruise control to be fitted to vehicle under s 39(1) of the Safety, Rehabilitation and Compensation Act 1988 – meaning of “rehabilitation program” – definition includes physiotherapy – no requirement in definition that program be the subject of a determination under s 37(1) of the Safety, Rehabilitation and Compensation Act 1988 – statutory interpretation – preference for ordinary meaning of language – beneficial legislation – compensation for modification to vehicle “reasonably required” by employee – meaning of “reasonably required” – difficulties faced by employee in driving – cruise control reasonably required – decision set aside.
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss4(1), 16(1), 36(1), 37, 39, 109(1)(b), Division 3 Part III.
Comcare v Neil (1993) 114 ALR 461.
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297.
Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCA 1575.
Re Todd and Department of Defence [1993] 18 AAR 329.
Johnston v Commonwealth (1982) 43 ALR 559 at pp 567-8.
Brennan v Comcare (1994) 122 ALR 615 at 621
Comcare v Levitt (1995) ALR 645 at 649.
Whittaker v Comcare (1998) 28 AAR 55 at 67.
Esam v ASP Ship Management (1998) 28 AAR 78 at 81.
Australian Postal Corporation v Forgie and Another (2003) 202 ALR 63.
Re Van Haltren and Telstra Corporation Limited [2001] AATA 743.
Monk v Comcare (1996) 43 ALD 677.
Thomas v Ferguson Transformers Proprietary Limited (1979) 1 NSW LR 216.
Words and Phrases
“rehabilitation program”
“reasonably required”

REASONS FOR DECISION

12 February 2004 Senior Member J.R. Dwyer
G.D. Friedman, Member

1. This is an application by Mr Pollanen for review of a decision of Comcare made under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) on 16 June 2003. The decision affirmed a determination, made on 16 December 2002, denying liability for the cost of providing and installing cruise control in Mr Pollanen’s motor vehicle.
2. The primary issues that arise concern the interpretation of s 39 of the Act, which provides for the payment of compensation in respect of modification of motor vehicles. Mr Pollanen claims that he “reasonably requires” cruise control to be fitted to…

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 Pollanen and Comcare

Details

AGLC: Pollanen and Comcare [2004] AATA 134
Case: [2004] AATA 134
Decision Date: 12 February 2004

CaseChat Overview and Summary

The Tribunal reviewed a decision by Comcare, affirming its denial of liability for the cost of providing and installing cruise control in Mr Pollanen's motor vehicle. The primary issues involved the interpretation of section 39 of the Safety, Rehabilitation and Compensation Act 1988, which allows for compensation for vehicle modifications reasonably required by an employee with a compensable injury. Mr Pollanen argued that he reasonably required cruise control due to pain in his right knee from driving long distances, a condition resulting from his military service. Comcare contended that Mr Pollanen did not satisfy the requirement of having undertaken or completed a rehabilitation program or being assessed as not capable of doing so, and that cruise control was not reasonably required. The Tribunal found that the term "rehabilitation program" should be given its ordinary meaning, which includes physiotherapy, and that Mr Pollanen had completed such a program. Furthermore, the Tribunal determined that cruise control was reasonably required to alleviate Mr Pollanen's pain from his compensable injury, making it a necessary modification to his vehicle. The Tribunal set aside the decision under review and substituted it with a determination that Comcare is liable to pay $780.00 for the supply and installation of cruise control in Mr Pollanen's vehicle.

Orders