Walsh and Comcare (Compensation)
[2024] AATA 3616
•11 October 2024
Walsh and Comcare (Compensation) [2024] AATA 3616 (11 October 2024)
Division:GENERAL DIVISION
File Number(s): 2023/5249
Re:WALSH, Adiran
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member A Ward AM
Date:11 October 2024
Place:Adelaide
The decision under review is affirmed.
.........................[sgnd]...............................................
Senior Member A Ward AM
CATCHWORDS:
Safety Rehabilitation Compensation Act - Aids and Appliances - rehabilitation programme – E-scooter – recreational device – remote hearing – the decision under reviewed is affirmed.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988
Administrative Appeals Tribunal Act 1975
CASES
WBJM and Comcare [2015] AATA 143
Keane and Telstra Corporation Limited (Compensation) [2016] AATA 76
Chugha and Comcare [2020] AATA 2835
SECONDARY MATERIALS
Administrative Appeals Tribunal / Guideline / Persons Giving Expert and Opinion Evidence (dated 30 June 2015)
REASONS FOR DECISION
Senior Member A Ward AM
11 October 2024
The Applicant, Mr Adrian Walsh, sought a review of the Respondent Comcare’s reviewable decision dated 24 May 2023. This concerned his claim for compensation for his purchasing an E-scooter which he said assisted him with mobility. He had previously suffered an injury to his right leg.
In the reviewable decision on 24 May 2023, the previous determination dated 12 April 2023, which denied the Applicant’s claim for compensation in respect of an E-scooter under section 39 of the Safety Rehabilitation and Compensation Act 1988 (“SRC Act”) was affirmed.
The extent of the claim was generally broadened so that the applicant sought compensation under s 39 of the SRC Act in respect of his acquisition of two E-scooters and a ramp. This was for a Bolzzen Atom Light E-scooter ($799) which the Applicant obtained on or about 27 July 2022 and then a Segway 9bot Max G2 Electric Scooter[1] ($1,699) which he obtained from JB HiFi on or about 8 October 2023. In addition, there was a ramp which he purchased from Bunnings, also on 8 October 2023, for $52. The ramp was used by Mr Walsh to load and unload the Segway Scooter from his motor vehicle.
[1] Elsewhere referred to as a Segway 9Bot Kick Scooter.
The applicant had sustained injuries to his right leg, in particular his right tibia and fibula, on 9 September 1994 in work circumstances. Liability had been accepted under the SRC Act for various conditions arising as a result of that injury. It is of note that it was the leg fracture and then also osteoarthritis in the lumbar spine. In addition, he had osteoarthritic changes in his left knee and patella. He had an altered gait which caused problems with his right hip and he suffered right thigh and calf muscle wasting. In addition, he had symptoms in his left hip. These problems have been accepted in various determinations over the years. There is no dispute that the Applicant had a serious right leg injury which, over time, has led to other problems as a direct consequence.
There is no dispute that the Applicant has problems with mobility which continue to be the case.
The dispute to be determined is whether the claimed E-scooters and ramp are an aid or appliance as contemplated by s 39 of the SRC Act, and in the event that they are, whether they were reasonably required having regard to the nature of the Applicant’s impairments.
Thus, the issues of injury and employment relationship are not in dispute in this matter.
Section 39 of the SRC Act deals with the compensation payable in respect of certain alterations and other matters arising as a result of impairment arising as a result of an injury.
For completeness, section 39 is set out as follows:
(1)Where:
(a) an employee suffers an injury resulting in an impairment; and
(b) the employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program;
the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee, of:
(c) any alteration of the employee's place of residence or place of work;
(d) any modifications of a vehicle or article used by the employee; or
(e) any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances;
being alterations, modifications or aids or appliances reasonably required by the employee, having regard to the nature of the employee's impairment and, where appropriate, the requirements of the rehabilitation program.
(2)The matters to which the relevant authority shall have regard in determining the amount of compensation payable in a particular case under subsection (1) include such of the following matters as are relevant in that case:
(a) the likely period during which the alteration, modification, aid or appliance will be required;
(b) any difficulties faced by the employee in gaining access to, or enjoying reasonable freedom of movement in, his or her place of residence or work;
(c) any difficulties faced by the employee in gaining access to, driving or enjoying freedom and safety of movement in, a vehicle used by the employee;
(d) any alternative means of transport available to the employee;
(e) whether arrangements can be made for hiring the relevant aid or appliance;
(f) when the employee has previously received compensation under this section in respect of an alteration of his or her place of residence or a modification of a vehicle and has later disposed of that place of residence or vehicle--whether the value of that place of residence or vehicle was increased as a result of the alteration or modification.
(3)An amount of compensation payable under this section is payable:
(a) to, or in accordance with the directions of, the employee;
(b) if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost--to that other person; or
(c) if that cost has not been paid and the employee, or the legal personal representative of the employee, is unable, or refuses or fails, to make a claim for the compensation--to the person to whom that cost is payable.
(4)Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (3) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first - mentioned person.
An issue under assessment is s 39(1)(e) referring to any aids or appliances for the use of the employee being reasonably required by the employee, having regard to the nature of the employee’s impairment and where appropriate the requirements of the rehabilitation programme.
As noted above, the section goes on to state the matters to which the relevant authorities should have regard in determining the amount of compensation payable in this particular case.
The Tribunal proceeds on the basis that whilst there are other cases that provide assistance with the interpretation of s 39 and the SRC Act in general, the actual factual determination will be dependent on the circumstances of the particular case. If an appliance has been considered as falling within the remit of s 39 in one case that does not automatically mean it would so be covered in another case. Similarly, if one has been denied compensation in a previous case, it does not mean it would be denied automatically in all future case. To assess the correct and preferable decision the Tribunal needs to review the merits of the individual matter.
For the reasons set out below, and in accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975, the reviewable decision dated 24 May 2024 is affirmed.
ASSESSMENT
As set out in the opening paragraphs, there is no doubt as to the significant injuries the Applicant suffered. Indeed, immediately prior to and during the course of the hearing that took place on 5 September 2024, Comcare confirmed that as a result of the Applicant’s compensable condition, he would benefit from the use of a mobility aid. Comcare indicated this would be a three or four-wheeled mobility scooter to enable the applicant to travel over longer distances and to reduce the exacerbation of his pain.
Such acknowledgement was based on the proviso that this would require a comprehensive assessment with a suitably qualified occupational therapist for the trial of appropriate mobility aids which offer stability and are designed to be used by people with disabilities.
This information was contained in a report that was provided in evidence in the hearing of the Occupational Therapist (OT) specialist, Ms Mikaela Kelly-Irvin, dated 3 November 2023.
Irrespective of the decision in this matter on its very specific issues, Comcare remains open to funding of an assessment and trial of the type of mobility aid recommended by Ms Kelly-Irvin.
The Tribunal had the benefit of oral evidence from Mr Walsh, along with evidence from the physiotherapist who has personally treated him from time to time, Ms Jude Perrett. She provided a document which would not be classed as an expert report as contemplated by the Rules of the Administrative Appeals Tribunal,[2] but more in the nature of a reference, dated 4 April 2024. She had observed Mr Walsh using an E-scooter on that day.
[2] As per General Practice Direction 30 June 15 and Guideline ‘Persons Giving Expert and Opinion Evidence’.
The Tribunal also had the assistance of evidence from Ms Kelly-Irvin who had provided detailed reports which did align with AAT Rules. No criticism is made of Ms Perrett in that regard. She was assisting her client as per his request but the procedural steps with regard to expert witnesses were not taken by Ms Perrett. Nevertheless, she gave detailed evidence to the Tribunal which was of assistance.
During the course of his dealings with Comcare and in preparation for the Tribunal process, Mr Walsh provided a number of extensive letters on certain occasions or otherwise, shorter letters commenting on information that had been obtained for the purpose of his claim. He was able to use these documents for advocacy. They contained factual matters and also made representations which were advocacy for the positions that he wanted to be taken into account by the decision maker.
The following is not a complete recitation of those matters, but factual issues arising from them. In his evidence before the Tribunal, the applicant adopted and endorsed the matters raised in those various items of correspondence as part of his evidence.
In his Application for Review of the Decision dated 18 July 2023, the Appellant said that:
“For the last few years I have wanted to purchase a light foldable electric scooter that I can easily transport in the back of my car, as a medical mobility aid for my ‘last mile commute for work; for a daily one kilometre return lunch time trip to the Cairns esplanade (to get out of the office daily) and for use at the weekend as a medical mobility aid to engage in outdoor activities – predominantly along the Cairns esplanade, Cattana Wetlands and the Smithfield Bypass Walking Track where I take photographs of wildlife”.
Mr Walsh asserted that public transport was not an option for him due to what he described as “my ambulatory complications”. The extent of those complications and their effect on his use of public transport were not further described nor dealt with to any extent in evidence that he provided.
In the Application for Review of Decision,[3] he said that he could commute to work in his automatic car and park adjacent to his work building which would cost him (at that time) $7.00 for the day for a car park. He would have to walk 100 -150 metres to the building elevator. There was no suggestion that the walk of that distance would be physically beyond him.
[3] Exhibit 1, T-Documents, T2, 4-25.
He decided in July 2022 to purchase a Bolzzen Atom Light electric scooter (E-scooter) so that he could park for free outside the Cairns CBD and then use the E-scooter as a “medical mobility aid” to commute the last mile to his work. He said: “that would reduce the amount of time I would need to walk”. He would use it for other activities as well.
In the Applicant’s statement,[4] he said: “I did not at the time request Comcare to approve the device for these purposes”.
[4] Exhibit 1, T-Documents, ‘Statement of Applicant’ (dated 18.07.2023), 13.
Mr Walsh confirmed in his evidence that the initial obtaining of the E-scooter in or around July 2022 was not something he did in consultation with either his treating orthopaedic surgeon, his general practitioner or his treating physiotherapist, or anyone else providing him with treatment. It was not obtained as part of a rehabilitation programme. It was his own idea. The Tribunal finds that the primary consideration for purchasing the light electric scooter (E-scooter) was that he could park for free outside the Cairns CBD and use the E-scooter to commute the last mile.
Mr Walsh’s use of the term “medical mobility aid” is his label. He was not prescribed the E-scooter as a medical mobility aid. He did not seek advance consideration by Comcare prior to obtaining it.
The initial E-scooter had two wheels. It had a platform on which the operator would stand, holding on to handlebars. It had an internal engine to propel it. It would need to be recharged. Mr Walsh’s evidence is that he enjoyed the use of the E-scooter in his circumstances both for travelling the kilometre (or mile) to work from his car park and the other uses in non-work situations.
Mr Walsh decided to purchase another better (in his view) electronic scooter. He then attended upon his general practitioner on or about 18 November 2022 and advised the GP of his intentions, asking him to support his claiming the new scooter as an “aid or appliance”. He acknowledged in his evidence that this was not something the GP had discussed with him. The general practitioner acquiesced to Mr Walsh’s request to support this claim.[5]
[5] There was no such discussion with the GP with regard to the purchase of earlier scooter.
The general practitioner, Dr Ballestero, executed a document but provided no real detail as to why the aid or appliance was required other than “dealing with arthritic pain” for walking over distances. The document is handwritten by Dr Ballestero and difficult to interpret, but no further information was provided on that. Suffice to say that Mr Walsh does not assert this as part of some rehabilitation plan formulated by Dr Ballestero.
It is also important to note that a specific electric scooter was contemplated at that time, namely a Zero 10 Model. This was not the device that the Applicant eventually obtained, namely a Segway 9Bot Kick Scooter.[6] Nothing at all turns on this in the Tribunal’s view, except that the applicant has been critical of other later documents that have referred to the Zero 10 model. Those complaints are not material because that is the model he referred to himself in earlier times.
[6] As per the JB HiFi receipt contained in Exhibit 3.
As noted, the Applicant did obtain the Segway 9bot Kick Scooter and the product manual was in evidence before the Tribunal. The Applicant was very happy with its performance and considered himself a safe rider of it. The basic version of the Segway 9bot Kick Scooter is a two-wheeled scooter upon which the rider stands and controls with handlebars. The Applicant augmented the scooter with a chair placed on the scooter. He advises that the chair was part of the Segway product range rather than a modification he made himself. An important detail is that the Segway 9bot Kick Scooter has only two wheels.
In the product manual, which is contained in Exhibit 8,[7] it is specifically stated that:
“The Kick Scooter is a recreational product.”
It adds:
“Whenever you ride the Kick Scooter you risk injury from loss of control, collision and falls. When entering into public spaces always comply with the local laws and regulations. As with other vehicles, faster speeds require longer braking distance.”
[7] Exhibit 8, Respondent’s Tender Bundle, 233-4.
In addition, the manual warns:
“Do not ride at an unsafe speed. Under no circumstances should you ride on roads with motor vehicles.”
With regard to a section headed “People who should not ride the Kick Scooter include:
ii.anyone who suffers from a disease that puts them at risk if they engage in strenuous physical activity.
iiianyone who has problems with balance or with motor skills that would interfere with their ability to maintain balance.”
In a number of the documents put forward in his claim, Mr Walsh said it was his personal choice to use a two-wheeled E-scooter.
In response to the occupational therapist’s report, Mr Walsh stated that:
“I absolutely reject the opinion of someone, no matter how highly qualified, to impose upon me a device that in their opinion I am more suited to, when they are not living my life with a disability that I have learned how to manage, and when I have been very successfully using a two-wheeled E-scooter that I consider perfect for my disabilities for such a long time.”[8]
[8] Exhibit 8, Respondent’s Tender Bundle, 105.
What is clear from the manufacturer’s information is that this is not a mobility device. To the contrary, it is a recreational device.
Ms Perrett, in her brief reference dated 4 April 2024, stated:
“I recommend that Adrian receives funding for the following mobility aid: Segway 9bot Max G2 E-scooter.”
Her use of the term ‘mobility aid’ is (probably) unintentionally misleading. It is not that, it is a recreational device.
The problem with the use of the Segway E-scooter is that it can go at higher speeds.
The Tribunal was advised that due to Australian regulations, the higher speed was 25 km/hr.
Another potential problem with it is the lack of stability. The Tribunal accepts the evidence of Ms Kelly-Irvin that the two-wheeled vehicle has to be less stable than a three or four-wheeled vehicle. It follows as a matter of logic.
Information was in evidence before the Tribunal from the Centre for Accident Research and Road Safety based in Queensland (known as CARRS-Q). It referred to the use of E-scooters (which these devices under consideration are) often replace walking or cycling or public transport and are for recreational use – rather than commuting. It noted that most E-scooter riders’ injuries resulted from falls rather than collisions with other vehicles. It noted that the Royal Australasian College of Surgeons (RACS) concluded that E-scooter riders were twice as likely to be injured as bicycle riders.
The RACS noted from the data assessed that 6 percent of injured patients had lower limb fractures. That is of some relevance here as it is the Applicant’s right lower limb that is so problematic, but he has now developed problems in his left leg as well.
Further, it was noted that the small size of the wheels on E-scooters raise concerns regarding their stability on uneven surfaces.
The Applicant has an issue with balance. Whilst the Tribunal accepts his assertion that he has not had an accident during his use of the E-scooter, he does have an issue with balance. It needs to be assessed from time to time with regard to his injuries. It had not been assessed with regard to his use of E-scooters by any of those treating him prior to his acquisition of the E-scooters. He had not been assessed by Ms Perrett prior to her observations of him using them as to their suitability to his situation.
In a request for a reconsideration of an earlier decision to decline the E-scooter,[9] the Applicant expressed concerns that his views were being overridden by the views of the occupational therapist and the compensating authority. He said with regard to the request being accepted under s 39 that:
“It should be entirely my responsibility to accept the risk of this device, as the elderly and mobility impaired are also accepting the risk of the use of mobility scooters, which are approved daily by occupational therapists all over Australia.”
And further:
“It should entirely be my reasonability to accept the risk of this device”.
[9] Exhibit 1, T-Documents, T14, 75-82.
The narrative went on to say on three occasions that it “should entirely be my responsibility to accept the risk of this device” in various contexts.
Thus, the Applicant is aware of the risks in using the device.
In his very detailed letters of advocacy, he has referred continuously to the fact that the E-scooter has a maximum speed of 25 km/hr.
Ms Kelly-Irvin provided detailed reports and gave evidence to the Tribunal. She noted the appropriateness of mobility devices of three or four wheels and a maximum speed of walking pace (the term ‘scooter’ can also be used for these – which is discussed below).
She considered that “two-wheeled E-scooters are not specifically designed for people with lower limb or mobility impairments, and would instead be targeted for recreational use, or as an alternative means of transportation”. The Tribunal accepts this opinion.
She said that with a capped speed of 25 km/hr: “I consider this inappropriate for a device which would be utilised as a mobility aid”.[10]
[10] Exhibit 8, Respondent’s Tender Bundle, 171.
She said that she would “not recommend the use of a two-wheeled E-scooter (like the Zero 10 Scooter or similar) as a solution for mobilising over long distances. I considered the use of alternative mobility scooters would offer a more appropriate solution”.[11]
[11] Exhibit 8, Respondent’s Tender Bundle, 172.
As noted, above, the reference to the Zero 10 is a red herring because she mentioned that or similar vehicles. From the information provided, the Zero 10 Scooter is a two-wheeled device which is the same as the Segway device the Applicant subsequently purchased.
Ms Kelly-Irvin made it clear in her evidence that her assessment of approximately 2 to 3 hours would not be the assessment used as contemplated in the proposal put forward by Comcare prior to the hearing. That would be a far more comprehensive review trialling use of devices. Such a review has not taken place yet with regard to the Applicant’s use of the two-wheeled scooters. Ms Kelly-Irvin made it clear that a mobility device would travel at walking speed which is 8 to 10 km/hr. Thus, the speed of up to 25 km/hr for the applicant’s Segway 9bot Kick Scooter is considerably in excess of that. A speed in excess of walking speed might be appropriate for a recreational vehicle. People can take risks for recreational purposes, such as water-skiers or snow-skiers. But the Tribunal accepts that is not appropriate for a rehabilitation aid contemplated under s 39.
The Tribunal notes the observations of Senior Member McCabe in the matter of WBJM and Comcare.[12] This dealt with the use of an earlier version Segway (which is quite different to the scooter under consideration here) and the relied upon this decision.
[12] [2015] AATA 143.
Importantly in that case, Comcare had agreed to the applicant using that Segway. So that issue was not before the Tribunal in that hearing.[13]
[13] WBJM and Comcare [2015] AATA 143 at [6].
In that case, the Learned Senior Member refers to the differentiation of the expenses under s.16 of the SRC Act and s.39.
However, the difference in this matter is that it was considered that the traditional Segway which if the reader can imagine has a platform upon which the rider stands and the two wheels are on the outside of the rider’s feet, with the rider holding a set of handlebars. That contrasts with the Segway in contemplation here which is a scooter which has one wheel at the front, handlebars arising from that wheel and then a standing platform and wheel at the rear. That matter did not concern the suitability of the Segway – this had been agreed by the compensating authority - but whether insurance for that vehicle could be claimed as compensation.
For a person with difficulties with balance, a two-wheeled mobility device has to be on the face of it more dangerous than a three or four-wheeled mobility device. If, as discussed during the course of the hearing, for whatever reason, the two-wheeled scooter was falling to the right then the applicant would have to put out his right foot to create a 3-point contact to stabilise the E-scooter. Given his right leg is significantly damaged, that would either cause further injury or otherwise might cause him to not use his right foot to stabilise and fall over completely. These are matters of speculation for the purpose of the hearing rather than important to the final determination. It is an illustration in a matter that would be taken into account by the expert in a detailed assessment as to the safety or otherwise of the use of such a device as part of a rehabilitation programme or as part of a properly considered treatment.
SECTION 39
The elements of s 39 are made out that the Applicant has suffered an injury which has resulted in an impairment. He has undertaken, but many years ago, a rehabilitation programme. He has not been assessed as not capable of undertaking such a programme with regard to more recent years.
These considerations are made pursuant to s 39(1)(e) with regard to “any aids or appliances for the use of the employee or the repair or replacement of such aids or appliances”.
The aids or appliances need to be “reasonably required by the employee having regard to the nature of his impairment and where appropriate the requirements of the rehabilitation programme”. There is no programme contemplating the use of mobility devices.
The Respondent accepts that mobility devices would be a proper consideration for the Applicant now, although that is a matter that requires proper investigation and evaluation.
Difficulties faced by the Applicant in gaining access to or enjoying reasonable freedom of movement in his or her place of residence or work are contemplated. The Applicant made a decision to park in a free parking space so as to avoid that expense. That was his deliberate choice. There is no doubt that walking that kilometre (or mile) would cause him difficulties due to his injuries. On the face of it, that is avoidable.
The Applicant does not have difficulty gaining access to driving or enjoying freedom of safety and movement in a vehicle.
Alternative means of transport available to the Applicant are not really relevant here. He can and does ride a pushbike. He would not ride a bike to work. However, that is again a choice that he makes. He can ride a bike and that is referred to in the medical evidence. However, in regard to alternative means of transport available to the Applicant, the primary reason that he needed the E-scooter was to avoid paying parking fees when parking in the vicinity of his workplace.
It is not a matter in which hiring an E-scooter would be appropriate instead of purchasing one. Evidence was not put forward as to the availability of E-scooters in share riding applications in the Cairns area.
Section 39(2)(f) is not relevant here. There is no suggestion of a modification of his vehicle.
The main section under consideration is s 39(2)(b) which deals with the difficulty faced by the employee in gaining access to his or her place of residence or work. In this regard, it is work.
However, this has to be a reasonable acquisition, and it needs to be safe. Thus, the importance of a rehabilitation programme. There was no involvement of any medical personnel prior to the decision being made to use an E-scooter (which ever one it was). These decisions were served up to the GP and to the physiotherapist as thing already done. They supported their patient in his requests.
It is very important that in the report of Ms Kelly-Irvin and in her evidence, she referred repeatedly to the fact that the mobility device should be at walking pace which is considered 8 to 10 km/hr, and the information from the Tribunal that the pace of the E-scooters could be greater, which is a matter with regard to safety.
The Applicant’s assertions as to his rights and responsibilities and his freedoms are important to him - but they are matters of his personal choice and do not for that reason only equate to the safe use of a mobility device.
The device in question is first and foremost a recreational device.
In this regard, the claim was broken down into the first E-scooter and then the second E-scooter and the ramp to facilitate the loading of the second E-scooter into the back of the Applicant’s vehicle.
The Respondent had no knowledge of the first E-scooter. It had constructive knowledge of the acquisition of the second E-scooter even though a different manufacturer was nominated.
The Applicant has not succeeded in demonstrating that these E-scooters were aids contemplated by s 39.
If they were, the ramp would be an appropriate aid as well but that has not been demonstrated.
This of course does not prevent the Applicant from continuing to use the E-scooter from which he derives benefit and pleasure, but it does not come under the consideration of the expenses contemplated by s 39 in the circumstances of this matter.
REHABILITATION PROGRAMME
As noted, the Applicant was involved in a rehabilitation programme, but many years prior to the current application. The Tribunal notes the situation in Keane and Telstra Corporation Limited (Compensation).[14]In that matter, the Applicant was seeking compensation under s 39 of the SRC Act for a vehicle hoist and four-wheeled motor bike. He had fractured his right leg and the Respondent had accepted liability. The Tribunal noted the Applicant was not undertaking, or had not completed, a rehabilitation programme, nor had he been assessed as not capable of undertaking one.
[14] [2016] AATA 76.
It is of note that the Tribunal referred to motorised scooters as being developed with injured or disabled persons in mind. It should be noted that the term “scooter”, which was also used in this case, would deal with a three or four-wheeled device. This contrasts with the childhood vision of a scooter of somebody born in the 1950s or 1960s which would be a device with a front wheel and a back wheel and a platform between them for standing on with handlebars rising from the fore-wheel. Clear evidence was given on the use of ‘scooters’ but not meaning that type of scooter. An E-scooter however is precisely in that configuration with a fore-wheel and an aft-wheel, a platform between them and handlebars rising from the fore-wheel.
The reasoning of the Tribunal in the case of Keane is quite similar to the situation faced in this matter and is adopted for these reasons. There, the Tribunal considered that s 39 would not apply because the Applicant was not undertaking and had not completed a rehabilitation programme and had not been assessed as being incapable of undertaking such a programme. The Applicant had undertaken a rehabilitation programme, but it was so many years prior to this application it could not be counted as relevant to this situation.
HEARING REMOTELY
The hearing proceeded on 5 September 2024 by way of Microsoft Teams. Whilst this was not as a consequence of the COVID pandemic, the Tribunal nevertheless had reference to the guidelines on cases on Microsoft Teams as set out in the matter of Chugha and Comcare.[15]
[15] [2020] AATA 2835.
Although there were some problems at times with communication, these were able to be circumvented (sometimes the use of mobile phones was necessary when computer microphones, for unknown reasons, failed). The parties and the Tribunal were satisfied that there was an appropriate level of communication and understanding for the matter to proceed. It may be a matter which is difficult for transcribers of evidence if that become necessary, but no objection was raised by the parties, nor the Tribunal, as to whether the remote witnesses were able to understand what was said to them or that they were able to be understood.
This case practically supports the proposition that when conducting cases on Microsoft Teams, counsel, witnesses and the Tribunal must be careful that only one person is talking at any given time and that patience and courtesy are paramount.
DECISION
The decision under review is affirmed.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Ward AM. |
.............................[sgnd]......................................
Associate
Dated: 11 October 2024
| Date of hearing: | 6 September 2024 |
Advocate for the Applicant: | Self-represented |
| Advocate for the Respondent: | Matthew Hawker |
ANNEXURE A – LIST OF EXHIBITS
| Exhibit no. | Lodged by | Document |
| 1 | Respondent | T-Documents |
| 2 | Applicant | Quotes for e-scooter 1 |
| 3 | Applicant | Response to Medical Report by Ms Kelly-Irvin (received on 04.02.2024) |
| 4 | Applicant | List of accepted medical conditions (received on 05.03.2024) |
| 5 | Applicant | 1. Jude Perrett (Applicant’s Physiotherapist) Statement (04.04.2024) 2. Applicant’s comment on Ms Perrett’s Statement (14.04.2024) |
| 6 | Respondent | 1. Briefing letter to Ms Kelly-Irvin 2. Report cover (dated 09.11.2023) 3. Evidence – Medical Report by Ms Kelly-Irvin (03.11.2023) |
| 7 | Respondent | 1. Request for Supplementary Report (dated 07.05.2024) 2. Supplementary Medical Report (dated 17.05.2024) |
| 8 | Respondent | Respondent’s Tender Bundle |
| 9 | Respondent | Respondent’s Letter to Applicant (dated 29.08.2024) |
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