Beds, Mattresses and Section 59
Many of our insurer clients receive claims for adjustable beds and mattresses.
These items may fall within the definition of a ‘curative apparatus’ under Section 59(e) of the Workers Compensation Act 1987 (the 1987 Act) and if they do fall within that definition, a worker may claim the costs of same on the basis that they constitute reasonably necessary treatment pursuant to Section 60 of the 1987 Act. This issue has been considered in a number of cases, some of which are commented on below. While each matter will turn on its own facts, we note the following:
In Cooper v State Rail Authority (NSW) (2001) 25 NSWCCR 25 the worker sustained a back injury. In order to reduce levels of discomfort, the worker purchased a firm mattress.
There was an issue as to whether the purchase of the mattress constituted treatment that was reasonably necessary as required by s60 of the 1987 Act. This depended in partly upon whether the mattress could be defined as a ‘curative apparatus’ under s59 of the 1987 Act.
Geraghty J outlined that an “ordinary” bed and mattress are cost of living expenses and do not meet the criteria set out in s59. Geraghty J pointed to the fact that every person seeks to obtain a bed that is most comfortable. Additionally, it did not require the direction of the doctor to replace the unsuitable bed with a more comfortable mattress. It was decided that it is not reasonable for the employer to reimburse a normal cost of living.
In the more recent case of Honarvar v Professional Painting AU Pty Ltd [2022] NSWPICPD 12, the worker sustained injury to his right ankle and developed consequential low back and neck pain. He made a claim for a bed and mattress. The employer submitted the claimed bed and mattress did not fall within the definition of a ‘curative apparatus’ in s59. Further, a rehabilitation report had indicated the worker’s existing bed was old, and it was submitted that the need for the bed did not result from the injury.
Deputy President Snell referred to the observation of Deputy President Byron in Newcastle Regional Public Tenants Council Incorporated v Grant [2005] NSWWCCPD 2: “the authorities indicate that in order for an item to fall within the definition of ‘medical or related treatment’ in s59 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.” DP Byron in that case found that a deluxe single king size bed fell within the definition of ‘curative apparatus’.
DP Snell noted that the worker’s Neurosurgeon, Dr Khawaja recommended that he sleep on a firm mattress, to assist with symptoms in the neck and lumbar spine. He accepted that as the treating Surgeon, Dr Khawaja was well placed to make treatment recommendations. Dr Khawaja was the only medical practitioner to comment on the topic. He gave reasons for his recommendation, being control of the worker’s lumbar lordosis, maintenance of the proper structure and curvature of the spine and help with minimising pain. An Occupational Therapist had also recommended use of an adjustable mattress.
DP Snell concluded that the relevant bed and mattress did have therapeutic properties which fall within the definition of a ‘curative apparatus’ in subsection (e) of ‘medical or related treatment’ in s59 of the 1987 Act. He noted that the bed and mattress will be used to achieve a particular medical purpose, per Dr Khawaja.
Implications
Each claim for a bed and mattress must be considered on its own facts. The decision in Honarvar demonstrates that in some instances, these items may constitute ‘curative apparatus’. Evidence from treating practitioners will likely be important in making this determination.
Should you have any queries concerning a particular workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.
