Watson v Yooralla

[2020] VMC 30

IN THE MAGISTRATES’ COURT OF VICTORIA
AT LATROBE VALLEY
WORKCOVER DIVISION

Case No. L11413172   

LINDA WATSON	Plaintiff
v
YOORALLA	Defendant

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MAGISTRATE:	S GARNETT
WHERE HELD:	LATROBE VALLEY
DATE OF HEARING:	2 DECEMBER 2020
DATE OF DECISION:	11 DECEMBER 2020
CASE MAY BE CITED AS:	Watson v Yooralla
MEDIUM NEUTRAL CITATION:	[2020] VMC 030

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CATCHWORDS – Claim for payment of costs associated with modifications to plaintiff’s Campervan in the form of an electric stair pursuant to S 224 of the Workplace Injury Rehabilitation and Compensation Act 2013 — Plaintiff sustained injury to right upper arm in the course of employment for which liability is admitted.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Mr Horner	John McCristal Injury Lawyers
For the Defendant	Ms Kusiak	Minter Ellison

HIS HONOUR:

1. Ms Watson is aged 73 years and was employed with the defendant as a disability support worker from 10 March 2003. She sustained injuries to her right upper arm on 10 July 2018 when she tripped and fell into a bench whilst working at a Special Accommodation Unit in Moe in the course of her employment. Her Workcover claim was accepted and she has received weekly payments for all periods of incapacity and payment of medical treatment expenses in accordance with the provisions of the Act.

1. On 14 August 2019, her treating Orthopaedic Surgeon, Mr George Owen, wrote to the Agent informing them that because of her injury she was experiencing major issues in accessing her Campervan as a consequence of her injury because of the need to use her arms to get up a high step. He considered that it would be appropriate that she receive funding for the installation of an electric stair to allow safe and easy access to the Campervan. Ms Watson obtained a quote from Norden Conversion in the sum of $1,738 to replace the existing campervan step with a ‘Kwikee 32 Series – modify opening to suit’. On 17 January 2020, Xchanging Integrated Services, after reviewing the principles of the ‘Clinical Framework for the Delivery of Health Services to Injured Workers’, informed Ms Watson that the item sought was not approved by Worksafe under the Act, on the basis that: ‘Your residential home is not your campervan’ and ‘Your campervan is used on a leisure basis’. Accordingly, Xchanging determined that the request for an electric stair was not a reasonable and/or necessary medical and like request in accordance with S 224 of the Act.

1. Ms Watson gave evidence that she underwent surgery on her right shoulder by Mr Owen on 25 July 2018, following the fracture to the neck of her right humerus with a plate and pins inserted. She told the court that further surgery is planned. She also told the court that she returned to work with the defendant in January 2019, 60 hours per fortnight performing administrative tasks and has gradually increased her hours on modified duties so that she is now able to work 34 hours per week with restrictions. She gave evidence that she has difficulty sleeping, cannot raise her arm beyond shoulder height and needs assistance from her husband to dress and to do housework although she is able to shower herself, do light cooking tasks and perform some cleaning with her left arm. She said that she is unable to enter the Campervan because she has little strength in her right arm and is not able to pull herself up into it with her left arm only.

1. Ms Watson told the court that she and her husband purchased the Iveco Motorhome - Sunliner Cabin in 2014-5 which they use on weekends and when on holidays. She said they would regularly travel to Lakes Entrance, Healesville and attend motor sports around Victoria with members of their family. She said that she last used the Motorhome in 2019. When questioned by the court as to how often she and her husband would travel in the Campervan each year she estimated they would use it on at least 18 weekends per year. Ms Watson told the court that the proposed modification would allow the entry step on the side of the Campervan to be lowered to ground level and operated electrically to lift her into the van which would not only allow her access to the rear section of the Campervan but which would also allow her to access the front passenger seat via the rear of the Van.

1. During cross examination, Ms Watson agreed that she is able to drive her “small” automatic car for up to 2 hours, but her husband drives when they are required to travel for longer periods. She agreed that she had told her physiotherapist in October 2019 that she could drive up to 4 hours but said that she could no longer drive for that duration because “the pins in her shoulder have moved”. She told the court that she undergoes self-managed exercises and takes Panadol medication 3 night per week in order to cope with the pain. Ms Watson agreed that she suffers from Meniere’s disease which affects her balance and is able to climb stairs if they have a left sided handrail. She agreed that she uses the motorhome for hobby and recreational purposes only and its use improves her quality of life.

Medical Evidence

1. Mr Owen reported on 5 September 2018 that Ms Watson suffered a fracture of the right surgical neck of the humerus which he plated on 25 July 2018. Dr Baynes, Occupational Physician, assessed Ms Watson on behalf of the Agent on 24 July 2019. He reported that Ms Watson complained of ongoing pain over the anterior aspect and inside the joint of her right shoulder. He noted that she had limited movement which is painful and told him that she is unable to sleep on the right shoulder. She also informed him that she could lift around 1kg with the right arm and is able to drive her small automatic car. At that stage, she was taking 2 Panadol Osteo tablets per day, Nurofen medication and receiving physiotherapy twice per week as well as performing home exercises using ‘TheraBand’ and a pulley. Dr Baynes reported that Ms Watson suffers from cardiac arrhythmia and Meniere’s disease. Examination revealed marked limitation of flexion, abduction and extension of the right shoulder when compared to the left shoulder. Dr Baynes considered that Ms Watson was not fit to return to pre-injury duties at that stage.

1. Ms Watson underwent an Occupational Therapy Assessment by Johnny Chan, Occupational Therapist from Workable Consulting, on 24 February 2020. In his report dated 28 February 2020, he noted that Ms Watson reported ongoing pain and soreness as well as weakness in her right shoulder joint and as a consequence has difficulty reaching above shoulder heights or below waist level with her right arm together with a reduced capacity in lifting with her right arm. Ms Watson also told Mr Chan that she has difficulty in completing household cleaning duties including floor mopping, bathroom cleaning, kitchen cleaning, bed making and laundry. Mr Chan recommended that it was reasonable for the Agent to provide 1.5 hours of household assistance per fortnight for 6 months to assist with; floor mopping, bathroom cleaning, kitchen cleaning, bedmaking and laundry tasks. He also recommended assistive cleaning equipment in the form of a long-handled duster and long handled toilet brush. Mr Chan reported that Ms Watson was seeing a physiotherapist once per week, a psychologist for anxiety and was taking Panadol. He noted that her current treating General Practitioner, Dr Frannan, reported that Ms Watson was recovering slowly and that she may require shoulder replacement surgery.

1. The defendant tendered extracts from Worksafe’s Claim Manual relating to; Home Modifications (4.15.19) and Car Modifications. In relation to Home Modifications, an eligibility requirement is determined by the workers need to reasonably access and complete functional activities within their home as a result of the work injury and the recommendation must be submitted by an Occupational Therapist. Some of the factors that are considered, include; the nature of the injury, how the injury restricts the workers ability to enter and leave the home and move about the home for necessary purposes. If modifications are required for a secondary home, one of the factors to be considered by the Agent is the anticipated amount of time that the worker is expected to spend in the secondary residence. In relation to Car Modifications, the Worksafe Policy provides that the Agent can pay the costs of modifications that is reasonably required as a result of a work-related injury to enable the worker to drive or to be transported safely.

Conclusion

1. The defendant submitted that the proposed modification to the Campervan is not a reasonable and necessary aid and the alteration sought is based on recreational, rather than therapeutic reasons. The defendant noted that whilst Mr Owen thought the modifications were “appropriate”, no evidence was presented from an occupational therapist supporting the need for the modification as is required in Worksafe’s Claim Manual Guidelines. The defendant also submitted that it should not be liable for an expense in order for Ms Watson to ‘have the holiday she desires’.

1. It was submitted on behalf of Ms Watson that the proposed modification is supported by her treating orthopaedic surgeon, that she has sustained a significant injury which requires further surgery and the court is entitled to consider her quality of life which has been affected by the injury, when considering whether the claimed expense is reasonable in all the circumstances.

1. As I stated in Cooper v VWA [1], the question of whether the defendant is liable for the costs associated with the claimed modifications to the Campervan is whether it is a ‘reasonable and necessary’ aid in all the circumstances of the case. Whilst the court should have regard to the matters set out in Worksafe’s Guidelines, the ultimate test to apply in accordance with the Act, is one of ‘reasonableness’. This test is to be given an objective interpretation. In the present case, the issue is whether the modification to the Campervan is reasonable and necessary having regard to all the circumstances including the nature and extent of the injury sustained by Ms Watson and the impact it has had on her activities of daily living.

   [1] [2016] VMC 24`

1. I accept the evidence of Ms Watson that because of her injury, she is unable to access her Campervan and the proposed modification would allow her to do so. I also accept her evidence that she regularly uses the Campervan for holidays with her husband and family and on at least 18 weekends each year. Her inability to access the Campervan undoubtedly impacts on her quality of life. She should not be forced to ‘stay in a hotel’ or ‘rent an Air BNB’ as was suggested by the defendant. I find that the cost associated with the modifications to the Campervan is a ‘reasonable and necessary’ expense for which the defendant is liable in accordance with the provisions of the Act.