Sukkarieh v Queensland Property Investments Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sukkarieh v Queensland Property Investments Pty Ltd [2025] NSWPIC 8
APPLICANT:	William Sukkarieh
RESPONDENT:	Queensland Property Investments Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	9 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for the respondent to pay for the cost of new or alternative motor vehicle with modifications recommended by general practitioner; whether an order pursuant to section 60(5) is appropriate having regard to the evidence; whether findings can be made regarding a motor vehicle and modifications being a curative apparatus; Thomas v Ferguson Transformers Pty Ltd and Newcastle regional Public Tenants Council Incorporated v Grant considered; Held – section 60(5) order not appropriate in the circumstances of this dispute; findings made in favour of worker for certain modifications to a motor vehicle to be a curative apparatus that is reasonably necessary medical or related treatment as a result of the injury sustained by the worker.
DETERMINATIONS MADE:	The Commission determines: 1. The following are curative apparatuses which are reasonably necessary medical or related treatment as a result of the injury sustained by the applicant on 23 December 2017: (a) reversing cameras and rear parking sensors in a motor vehicle; (b) a motor vehicle that allows the applicant to enter and exit that vehicle with a minimum of difficulty; (c) appropriate seating support in a motor vehicle for the applicant’s cervical spine and left shoulder, and (d) a motor vehicle with automatic transmission. 2. The Commission declines to make any order pursuant to s 60 (5) of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, William Sukkarieh, sustained an injury to his neck and left shoulder on 23 December 2017 while employed as a store person with the respondent, Queensland Property Investments Pty Ltd.
The applicant was operating a pallet loading machine when he was struck from behind by another pallet loading machine. The respondent has admitted liability for this injury.
The applicant underwent a C6/7 anterior cervical discectomy and fusion in October 2019, which was performed by Dr Gray.
The applicant underwent a left shoulder arthroscopy, acromioplasty and rotator cuff tendon repair on 21 August 2020, which was performed by Dr Huang.
The parties to this dispute have previously agreed that the applicant has 30% whole person impairment (WPI) as a result of the injury sustained on 23 December 2017.
The applicant has filed an Application to Resolve a Dispute (ARD) wherein a claim is made for future treatment for an “alternative motor vehicle as per quotation in attached documents”. The amount of $44,947.08 is sought for this future treatment.
The respondent issued a dispute notice dated 17 July 2024 wherein liability for this claim was declined on the basis that a new or alternative motor vehicle is not a curative apparatus in the applicant’s circumstances or, in the alternative, a new or alternative motor vehicle is not reasonably necessary as a result of the injury sustained by the applicant.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether an alternative motor vehicle is reasonably necessary medical or related treatment as a result of the injury sustained by the applicant on
23 December 2017 (s 60 of the Workers Compensation Act 1987 (the 1987 Act)).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was listed for conciliation and arbitration on 11 December 2024 and
17 December 2024. Mr Morgan appeared for the applicant, instructed by Mr Thomas.
Ms Compton appeared for the respondent, instructed by Mr Hughes.
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 hearing was conducted by video link and was recorded.
There were objections to the admissibility of certain documents by both parties. I gave my reasons in regard to those objections and those reasons have been recorded.
I allowed the applicant to have two reports from Dr New, both dated 4 September 2024, admitted into evidence, despite objection by the respondent. Those reports were not included in the ARD which was filed on 1 October 2024. Nonetheless, the omission of those reports was raised by the representative of the applicant at the preliminary conference conducted on 29 October 2024 and those reports were served three days later in accordance with a Direction made at that conference. The respondent then had almost six weeks to respond to those reports before the conciliation and arbitration.
Ms Compton on behalf of the respondent submitted that it was not apparent from the letter serving those reports as to whether the reports related to these proceedings because there is a separate work injury damages claim also being prosecuted by the applicant. I indicated that this objection was pedantic, and it was patently obvious from the timing of service of the reports following the preliminary conference that the reports related to these proceedings.
Ms Compton also submitted that the reports should not be admitted into evidence without the letters of instruction, because those reports could only be read properly with them. I decided that although it might be preferable for letters of instruction to be provided, it is not usually the situation that such letters are included as part of the material to be considered in disputes before the Personal Injury Commission (Commission), and the absence of those letters of instruction should not outweigh the admission of those reports in these proceedings.
Ms Compton objected to the admission of the statement of the applicant which has been included in the ARD on the grounds that the respondent had not seen that statement before the ARD was served, and that the statement contained responses by the applicant to a driving assessment which he undertook on 1 July 2024, and the respondent had limited time to respond to that evidence. I allowed that statement into evidence because the respondent had ample time to respond before the date of the conciliation and arbitration, and Michelle Turnbull, the author of the report arising from that driving assessment, had provided a response to the applicant’s statement.
Mr Morgan on behalf of the applicant objected to all of the documents in an Application to Lodge Additional Documents filed by the respondent on 21 November 2024. This was primarily because it was not clear if the applicant had provided his consent to allow the respondent to rely upon the video recording of a driving assessment conducted by Michelle Turnbull, occupational therapist, on 1 July 2024, which the respondent sought to have included as evidence it wished to rely upon.
I did not allow the video recording of the driving assessment into evidence, or the notes made by Ms Turnbull of that assessment, because they were not included in the dispute notice which denied liability for this particular claim, and the respondent had therefore not complied with Reg 41 of the Workers Compensation Regulation 2016. I made reference to Chown v Tony Madden Refrigeration Transport Ltd [2005] NSWWCCPD 159 (Chown) at [17] in support of that ruling.
I did allow into evidence a further report from Ms Turnbull dated 29 October 2024, despite the objection of the applicant, because that report was provided in response to the applicant’s statement in the ARD and the respondent had only seen that statement for the first time with the service of the ARD.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Lodge Additional Documents filed by the respondent on
21 November 2024 (with the exception of the video recordings of the driving assessment conducted on 1 July 2024 and the notes from Ms Turnbull of that assessment), and
(d)    Application to Lodge Additional Documents filed by the applicant on
12 December 2024 in accordance with a direction made during the hearing (being the two reports of Dr New dated 4 September 2024).

Oral evidence

There was no applicant to adduce oral evidence from the applicant or to cross examine the applicant.

The applicant’s evidence

The applicant has provided a statement dated 7 August 2024.
The applicant states that he struggles with neck pain, which varies in intensity, as well as pain across the left shoulder and down the left arm. He states that he has restricted movement of the neck and left shoulder.
The applicant states that he is unable to drive for prolonged periods of time because he cannot sit for longer than an hour. He states that he has trouble reversing and turning his neck while driving due to his restricted range of motion.
The applicant states that it is very difficult to get in and out of his car without aggravating his neck and shoulder pain because his car is very low, and he has to bow his neck to enter the vehicle.
The applicant states that a SUV will allow him to enter and exit the vehicle without having to get low and twist awkwardly. He states that the higher seating position reduces strain on his neck and back. He states that the more supportive and adjustable seating of a SUV will help maintain proper posture and reduce pain while travelling.
The applicant states that “it is imperative that I use an SUV for transportation to support a safe and comfortable recovery following my work injury”.
The applicant confirms that he underwent a driving and vehicle assessment with MT Rehab on 1 July 2024, and provides a response to a report from Michelle Turnbull, occupational therapist, dated 15 July 2024 which was produced following that assessment.
The applicant states he had neck and left shoulder pain during the whole of the assessment. He states that he was asked towards the end of the assessment as to whether he was in any pain and he confirmed that he was in pain. He disputes the observations made by
Ms Turnbull that he was not in pain during the assessment.
The applicant states that he only reversed the vehicle on one occasion, and that it was not for a reverse park as stated by Ms Turnbull. He states that he used the reverse camera and disputes the evidence of Ms Turnbull that he demonstrated active trunk and neck motions to allow for observations around the vehicle. The applicant states that he did not independently adjust his seat and mirrors as stated by Ms Turnbull.
The applicant disputes the evidence of Ms Turnbull that he rarely drives and limits his regular driving to taking his daughter to and from school, but he does state that he only drives short trips and limits his driving as much as possible.

The evidence from Michelle Turnbull, occupational therapist

Ms Turnbull has provided reports dated 15 July 2024 and 29 October 2024 at the request of the respondent.
The report dated 15 July 2024 follows from a driving assessment conducted by Ms Turnbull and a rehabilitation trained driving instructor on 1 July 2024. The assessment involved 30 minutes of driving by the applicant of a 2021 Hyundai Kona with automatic transmission and reversing camera, and 30 minutes of driving by the applicant of his own 2009 Ford Focus with automatic transmission.
Ms Turnbull writes that the applicant said that he rarely drives since his injury, and he limits his regular driving to taking his daughter to and from school each weekday, which takes about five minutes.
Ms Turnbull observed that the applicant could independently transfer in and out of both vehicles without assistance. She observed the applicant having to use a combination of head flexion and right lateral flexion to move through the doorway of his own vehicle. Ms Turnbull observed that the applicant could independently adjust the manual controls of the seat without any obvious or reported increase in pain.
Ms Turnbull writes that the applicant began to drive with only his right hand on the steering wheel and the applicant said that he felt more comfortable with his left hand off the wheel.
Ms Turnbull states that a temporary arm support was provided for the left arm and that the applicant said he did not feel pain in his shoulder for the remainder of the assessment.
Ms Turnbull writes that the applicant demonstrated monitoring of internal and external mirrors when driving, as well as completing blind spot checks. She did not observe the applicant using the reverse camera in the Hyundai Kona. Ms Turnbull writes that no pain was reported during the head checks and no pain behaviours were observed.
Ms Turnbull writes that the applicant did not report any pain while driving the Hyundai Kona, and he reported a pain of 2/10 in the right side of his neck, but not his left shoulder, after 14 minutes of driving his own vehicle.
Ms Turnbull concludes that the applicant does not need a different vehicle, and she considers the only modification to the applicant’s existing vehicle would be the installation of a basic arm rest on the left side of the driver’s seat at a cost in the range of $500 to $1,000.
The second report from Ms Turnbull is in response to the applicant’s statement dated
7 August 2024.
Ms Turnbull writes that she did not observe the applicant to twist awkwardly when entering and exiting his vehicle and opines that there is no clinical justification for a higher seating position.
Ms Turnbull writes that the applicant was observed to reverse on three occasions and turned his trunk and neck each time to look over both shoulders. Ms Turnbull writes: “On each occasion there was no report of pain and no observable signs of pain including grimacing, hesitation in movement, vocalisation or rubbing the affected area.” She writes that her report includes “objective statements” about the applicant’s reports of pain and observations of his lack of overt pain behaviours during the assessment.

Other medical evidence

The applicant’s general practitioner, Dr Pope, has provided a report dated 23 June 2024.
Dr Pope writes that the applicant is at risk of injury through his limitation in cervical range of movement, as well as impairment of shoulder function to allow him to change gears repeatedly. Dr Pope recommends that the applicant has a SUV model for the following:
(a)    enter and exit the vehicle without getting low so as to twist awkwardly upon entry and exit;
(b)    appropriate seating support for lumbar spine;
(c)    appropriate seating support for cervical spine and shoulder;
(d)    seat heating for injuries;
(e)    appropriate mirror senses to minimise neck movement and checking of blind spots;
(f)    appropriate reversing cameras for the same reason, and
(g)    automatic transmission to assist shoulder injury.
Dr New, orthopaedic surgeon, has provided several reports since October 2022 at the request of the applicant’s lawyers.
Dr New opines in a report dated 13 October 2022 that the applicant’s injuries are likely to deteriorate with time, which will be the natural history of the conditions in the applicant’s neck and shoulder.
Dr New opines in one of two reports dated 4 September 2024 that the applicant’s long-term prognosis for the shoulder and cervical pain with radiculopathy is poor. He finds that the applicant has lost approximately 25% of flexion, extension, lateral bending and rotation of the neck, and has dysethesia in the C6/7 nerve root distribution and decreased upper limb reflexes.
Dr New does not consider that the applicant is capable of reprising his pre-injury employment or his employment generally, although this could be confirmed with a functional and vocational assessment.
Dr New also writes:
“I note that there has been a request through his GP to obtain a more suitable motor vehicle, noting that he currently drives a Ford Focus. I am not an expert on motor vehicles per se, however, a vehicle which is large enough for him to get in and out of as well as having a reversing camera would allow him to be more functional and pain free whilst in the vehicle. A camera would be ideal to provide assistance particularly with regard to blind spots and I would also recommend automatic transmission.”
Dr New writes in the other report dated 4 September 2024 that the combination of injuries between the cervical spine and left shoulder are significant with regard to the applicant being able to drive, even though the applicant is not working at the moment. Dr New writes:
“Optimally a car would be of a size suitable for him to get in and out of easily and be low enough so that it would not be difficult to enter and exit the vehicle. The seating would have to be of a certain standard that allows him to easily move in and out of the car and give him support and the mirrors and cameras for blind spots would be of great assistance to him.”
Dr New also writes in that report:
“Optimally it would be better for him to have a much younger car that is easily accessible for him to be able to get in and out of, with appropriate airbags and accident support in case he is involved in accident, as well as appropriate cameras.”
Dr Breit, orthopaedic surgeon, has provided a report at the request of the respondent dated
8 July 2024. Dr Breit finds no tenderness in the neck, but rotation of the neck is one third normal to the left and two thirds normal to the right. He considers that the applicant is fit to work in a sedentary capacity at normal hours.
Dr Breit opines that the main difficulty which the applicant has in operating a motor vehicle is the reversing of that vehicle. However, he does not consider that the need for assistance with a motor vehicle extends to the provision of a new vehicle. Dr Breit opines:
“The vehicle should be equipped with a reversing camera and rear parking sensors. In my opinion no other modifications are required. If he is having some difficulty getting into the car it is because he needs to have some sessions with an occupational therapist as to how to enter and exit the vehicle without straining the neck, he does not require the purchase of another car.”

A summary of the submissions by the parties to the dispute

Mr Morgan submits that the opinion of Dr Pope should be preferred because he has been the applicant’s long term general practitioner and provides the rationale for a new vehicle with specific requirements to meet the needs of the applicant. Mr Morgan submits that these needs are supported by Dr New.
Mr Morgan submits that the opinions of Dr Pope and Dr New should be preferred over the opinion of Dr Breit who merely provides a “throw away line” that a new vehicle is not required but does not undertake any analysis for that opinion.
Mr Morgan submits that that the opinions of Dr Pope and Dr New should be preferred over the opinion of Ms Turnbull because those doctors have the appropriate medical qualifications to determine the extent of disability being suffered by the applicant. Furthermore, the reports from Ms Turnbull, in particular her second report, are replete with subjective observations which are indicative of Ms Turnbull taking on the role of an advocate for the respondent.
Mr Morgan submits that a new vehicle with the features set out by Dr Pope would allow the applicant to have a more comfortable life having regard to the significant ongoing effects of the work injury.
Mr Morgan at the outset of his submissions sought “a finding relative to the nature of the vehicle and the appropriateness of same”. However, when providing submissions in reply,
Mr Morgan sought orders that an alternative motor vehicle be obtained to address those deficiencies in the current vehicle being driven by the applicant which have been identified by the applicant, Dr Pope and Dr New.

Ms Compton submits that the opinion of Ms Turnbull should be preferred because she is the only expert who is suitably qualified and has properly reviewed the claim made by the applicant by undertaking a driving assessment of the applicant. She submits that there is no reason not to accept the observations and conclusions made by Ms Turnbull in her reports.
Ms Compton points out that the applicant has not provided a report from an occupational therapist or someone of similar qualifications that would allow a comparison with the opinion provided by Ms Turnbull. This contrasts with a decision such as Basedow v Komatsu Australia Pty Limited [2021] NSWPIC 457 (Basedow) where Member Homan had the benefit of considering competing opinions from suitably qualified experts.
Ms Compton also submits that there is no evidence which indicates that a SUV with the requirements set out in Dr Pope’s report would alleviate the pain experienced by the applicant. There has been no trial of a suitable vehicle which would allow for an informed decision to be made as to whether those features and accessories set out by Dr Pope meet the definition of ‘curative apparatus’ in s 59 of the 1987 Act.
Ms Compton submits that there should not be an order made for the respondent to meet the cost of a SUV because the applicant has not identified the specific vehicle which meets the requirements sought by the applicant and recommended by Dr Pope. No specifications are set out for several vehicles depicted in the ARD, with the exception of the Tucson, but even the specifications for that vehicle do not include any of the requirements set out in the report from Dr Pope.

DETERMINATION

During the course of the hearing I raised with the parties, and in particular with Mr Morgan, my concern that there was no specific motor vehicle identified by the applicant, which included the specific requirements recommended by Dr Pope, that would allow for an order to be made pursuant to s 60 (5) of the 1987 Act.
Mr Morgan relies upon Basedow, and also Mansfield v Secretary, Department of Education [2024] NSWPIC 670 (Mansfield), but those decisions are distinct from this dispute because in both of those cases the worker sought, and was given the benefit of orders, that the employer was to pay for the cost of a specific motor vehicle identified by the worker.
There were six different motor vehicles identified by an expert in Basedow as being suitable for the worker’s needs and Member Homan ultimately determined that the employer was to pay for a new or late model Volkswagen Touareg 210TDI Elegance or 190 TDI Premium vehicle which included a fully adjustable driver’s seat, airbag suspension, automatic transmission and reversing camera.
Member Burge in Mansfield made an order that the employer was to pay the cost of a Kia Carnival van with modifications proposed by an expert retained by the employer.
In this dispute there is no specific motor vehicle identified by the applicant which can be made the subject of an order pursuant to s 60 (5) of the 1987 Act.
The details of future treatment or related expenses set out in the ARD is for an “alternative motor vehicle as per quotation in attached documents.” However, those attached documents are merely photos of six sports utility vehicles, and only one of those vehicles (the Tucson Elite) includes “key specifications”, and those “key specifications” do not include any of the requirements set out in the report from Dr Pope.
Section 60 (5) of the 1987 Act provides:
“The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service.”
The Explanatory Note to the introduction of s 60 (5) states that the purpose of this sub-section is:
“…to extend the jurisdiction of the Workers Compensation Commission (the Commission) in relation to disputes about treatment and services that have been provided to injured worker so as to cover disputes about treatment and services that are proposed to be provided.”
Although Dr Pope has set out various requirements for a motor vehicle which is to be driven by the applicant having regard to his ongoing disabilities as a result of his work injury, there is no expert evidence as to the specific vehicle or vehicles which have those requirements or can be modified to include those requirements. In my view it is not appropriate, having regard to the provisions of s 60 (5), to simply have an order that the respondent is to pay for a new or alternative motor vehicle without there being some precision in that order as to what make and model that vehicle might be.
Mr Morgan submitted in his reply that it is open to the Commission to deal with the dispute notice. However, a dispute notice is produced in response to a claim, and the claim made by the applicant has not been included in the material before the Commission. The dispute notice is stated to be in response to an email from the applicant’s lawyers dated
11 April 2024, but that email is not included in the material before the Commission.
The index to the ARD states that the quotation for the six motor vehicles is dated
11 April 2024, and presumably these quotations were included in a claim made on behalf of the applicant, which was then the subject of the dispute notice, but there is no evidence of a specific motor vehicle which the applicant requires the respondent to pay for as part of his reasonably necessary medical treatment.
I therefore do not consider an order should be made pursuant to s 60 (5) of the 1987 Act in regard to the payment by the respondent of a motor vehicle in the absence of relevant evidence which identifies a specific motor vehicle which is appropriate to the applicant’s needs, or which is able to be modified to meet those needs.
However, that conclusion does render these proceedings to be null and void. The Commission can make findings which are relevant to future s 60 expenses. President Keating in Widdup v Hamilton [2006] NSWWCCPD 258 (Widdup) referred to Water Taxis Combined Pty Ltd and Harbour Taxi Boats Pty Ltd v Wells [2004] NSWWCCPD 30 (Water Taxis) and Lilly v Tomago Aluminium Company Pty Limited [2004] NSWWCCPD 62 (Lilly) when he said also at [48]:
“In both Water Taxis and Lilly it was held that, where a dispute is properly before the Commission, it has the power to make factual findings that will be relevant to workers’ entitlements for future section 60 expenses.”
In my view, the best that the applicant can achieve from the manner in which this dispute has been prosecuted is to have findings made that some or all of the modifications recommended by Dr Pope are curative apparatuses which are reasonably necessary as a result of the injury sustained by the applicant on 23 December 2017.
There have been several decisions of the Compensation Court, Workers Compensation Commission and Commission which have referred to and have relied upon what was said by Hutley JA in Thomas v Ferguson Transformers Pty Limited [1979] 1 NSWLR 216 (Thomas) in regard to a ‘curative apparatus’ at [220]:
“…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.”
In Newcastle Regional Public Tenants Incorporated v Grant [2005] NSWWCCPD 2 (Grant), Byron DP reviewed several cases subsequent to Thomas in regard to a ‘curative apparatus’ and said at [46]:
“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.”
I accept that the applicant continues to suffer the debilitating effects of the injury he sustained to his neck and left shoulder on 23 December 2017. The applicant has undergone a fusion at the C6/7 level and rotator cuff tendon repair of the left shoulder. The respondent accepts that the applicant has 30% WPI as a result of the work injury. Both Dr New and Dr Breit have found significant restriction of movement of the neck during their examinations of the applicant. Both Dr New and Dr Breit consider that the applicant is significantly restricted in his ability to return to any form of employment.
The overwhelming expert evidence supports a finding that reversing cameras are reasonably necessary. Dr Pope, Dr New and Dr Breit all support the inclusion of this particular apparatus in a motor vehicle to be driven by the applicant. Their recommendation is consistent with the findings made by Dr New and Dr Breit of significant restriction of movement of the applicant’s neck. I consider it reasonable to conclude that the installation of reversing cameras will have a therapeutic impact based upon the opinion of Dr New that those cameras would allow the applicant “to be more functional and pain free whilst in the vehicle”.
I prefer the opinions of Dr Pope, Dr New and Dr Breit over the opinion and observations of Ms Turnbull in regard to the need for reversing cameras. There is a factual dispute between the applicant and Ms Turnbull as to how many times he reversed the motor vehicles which he drove while undertaking the driving assessment and whether he used a reversing camera while driving the Hyundai Kona.
In my view, those differences in the evidence between the applicant and Ms Turnbull do not alter the overwhelming expert evidence which supports the need for reversing cameras because that expert evidence is based on Dr Pope’s long term treatment and monitoring of the applicant since the work injury, and the findings made by Dr New and Dr Breit of significant restriction of movement of the applicant’s neck.
I also do not consider that this finding needs to be altered by Ms Turnbull’s reporting of “no observable signs of pain including grimacing, hesitation in movement, vocalisation or rubbing the affected area” during the driving assessment.
Firstly, the fact that the applicant did not show such “observable signs” does not mean that he was not experiencing some pain while driving both vehicles. Ms Turnbull does record the applicant stating that he had some pain after driving his own vehicle, and this was after having the benefit of initially driving the Hyundai Kona.
Secondly, I prefer the opinion of a general practitioner who, as I have already noted, has had long term care of the applicant, and the opinion of Dr New, who is able to draw on his clinical judgment as an orthopaedic surgeon to conclude that “the combination of injuries between his cervical spine and left shoulder are significant with regard to him being able to drive.”
There will be a finding that reversing cameras are a curative apparatus and reasonably necessary as a result of the injury sustained by the applicant. Although it is likely that reversing cameras will also have rear parking sensors, I will include in this finding that rear parking sensors are also reasonably necessary. The use of rear parking sensors is supported by Dr Breit.
It is not clear what Dr Pope referring to as “appropriate mirror senses to minimise neck movements and checking blind spots.” He may be referring to sensors that identify another vehicle being too close to the driver’s vehicle or when the driver strays while driving. However, in the absence of expert evidence to guide me, I doubt if “mirror senses” obviate the need to physically turn and check blind spots when overtaking and undertaking.
There is therefore not sufficient evidence to allow me to make a finding that “mirror senses” are a curative apparatus that are reasonably necessary for the applicant to utilise as a result of his injury, except for rear parking sensors which have already been included in my finding with regard to reversing cameras.
Both Dr Pope and Dr New recommend that the applicant has a motor vehicle which does not require the applicant to get so low that it is difficult and awkward for him to enter and exit that vehicle, and to have seating support for his neck and left shoulder in that vehicle. Dr Pope opines that the applicant is otherwise at risk of injury. Dr New opines that getting in and out of a vehicle will cause more pressure on his neck and that appropriate seating will give the applicant support while driving.
I prefer the opinions of Dr Pope and Dr New in regard to these two recommendations. Significant weight must be given to the opinion of Dr Pope, notwithstanding that his report dated 23 June 2024 is relatively brief, because of his long term care and treatment of the applicant. Dr Pope is well placed to provide an opinion as to the appropriate modifications and additions to a motor vehicle which will alleviate the consequences of the applicant’s injury.
Dr New identifies the applicant as having ongoing pain and restriction of movement, especially in the cervical spine, and that the applicant’s long term prognosis is poor.
Dr New’s support for the applicant being able to get in and out of a vehicle with a minimum of difficulty, and his support for the need for proper seating support, is directly related to that doctor’s concern regarding the significant disability that the applicant already has in his neck and left shoulder, and the likely ongoing deterioration of the applicant’s neck and left shoulder.
The opinion from Dr New meets a central principle in Rose that: “Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury” [at 48A-C], and the emphasis in Grant of the “therapeutic impact” provided for by a curative apparatus.
Dr Breit does not offer an opinion in regard to appropriate seating support. He considers that the difficulty which the applicant has in getting in and out of a car can be addressed with some sessions with an occupational therapist.
The availability of alternative treatment is a factor to be considered in determining if a particular form of treatment is reasonably necessary (Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose) at 48A-C). However, “the essential question remains whether the treatment is reasonably necessary” (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; 15 NSWCCR 204 (Margaroff).
Both Dr Pope in his capacity as the applicant’s long tern general practitioner, and Dr New in drawing a clear connection between the applicant’s ongoing condition and the need to restrict the deterioration of that condition, provide strong support for a finding that a motor vehicle which allows the applicant to enter and exit that vehicle with a minimum of difficulty, and a motor vehicle with appropriate seating support, are curative apparatuses which are reasonably necessary as a result of the injury sustained by the applicant, even if there is alternative treatment that might be available.
I have already expressed my concerns regarding the opinion and observations of
Ms Turnbull. She states that she observed that the applicant could independently transfer in and out of both vehicles without assistance, and she did not observe the applicant to twist awkwardly when entering and exiting his vehicle.
In my view, what is the critical to this part of the dispute is not an isolated observation of how the applicant gets in and out of a motor vehicle but the ongoing effects upon the applicant’s neck and left shoulder in having to do this for many years to come. That is answered by the opinions of Dr Pope and Dr New. The reports from those two doctors reveal a better understanding of the applicant’s condition.
Ms Turnbull also does not provide any reasons for there being no “clinical justification” for higher seating, when both Dr Pope and Dr New have provided reasons for appropriate seating support.
Both Dr Pope and Dr New recommend the applicant using a motor vehicle with automatic transmission, although neither doctor provides any reasons for this recommendation, except for Dr Pope stating that it is “to assist shoulder injury.”
However, given that a vehicle with manual transmission requires the use of the left arm to change gears, and the applicant has ongoing aching and pain in his left shoulder, it would appear to be reasonably necessary for the applicant to drive a car with automatic transmission to reduce the effects of the injury to the left shoulder.
I find support for this conclusion in the report from Ms Turnbull. She observes that the applicant began to drive with only his right hand on the steering wheel because he said that he felt more comfortable with his left hand off the wheel. Ms Turnbull then states that a temporary arm support was provided for the left arm and that the applicant said that he did not feel pain in his shoulder for the remainder of the assessment.
There is again some difference between these observations made by Ms Turnbull and the applicant. The applicant states that he did not feel as much pain in his left arm after the temporary arm support was installed. However, even the reduction of pain in the left arm, which is the limb that is used to change gears on a car with manual transmission, by the installation of the temporary arm support, adds to a finding that a motor vehicle with automatic transmission is a curative apparatus which is reasonably necessary as a result of the injury sustained by the applicant.
There are no reasons provided by Dr Pope or any other expert as to how seating heating can alleviate the effects of the applicant’s injury, so this particular recommendation will be rejected.
There has been no claim for an injury to the lower back or that the applicant has a condition affecting the lumbar spine as a consequence of the work injury. Neither Dr New nor Dr Breit have diagnosed any condition involving the applicant’s lumbar spine. The recommendation by Dr Pope for appropriate seating for the lumbar spine cannot be supported on the available evidence.
Ms Compton submits that there has been no trial of a suitable vehicle which would allow for an informed decision to be made as to whether those features and accessories set out by
Dr Pope meet the definition of ‘curative apparatus’ in s 59 of the 1987 Act, and that
Ms Turnbull is the expert to be preferred in regard to this particular dispute which is before the Commission.
Although it may have been helpful for the applicant to have been provided a report from an appropriate expert, I consider that Dr Pope and Dr New have given proper consideration to the applicant’s current condition and the serious risk of deterioration of that condition as the years progress, and that those doctors have sufficient knowledge of particular modifications to a motor vehicle which aim to alleviate the consequences of the injury sustained by the applicant.

SUMMARY

For the reasons I have already given, there will be no order made pursuant to s 60 (5) of the 1987 Act. However, there have been findings made that the following are curative apparatuses which are reasonably necessary medical or related treatment as a result of the injury sustained by the applicant on 23 December 2017:
(a)    reversing cameras and rear parking sensors in a motor vehicle;
(b)    a motor vehicle that allows the applicant to enter and exit that vehicle with a minimum of difficulty;
(c)    appropriate seating support in a motor vehicle for the applicant’s cervical spine and left shoulder, and
(d)   a motor vehicle with automatic transmission.

[2025] NSWPIC 8

9 January 2025