Fasten Your Seatbelts, It’s (Not) Going To Be A Bumpy Ride

Basedow v Komatsu Australia Pty Limited [2021] NSWPIC 457

The Applicant sustained an injury to his neck and spine during the course of his employment with the Respondent on 6 February 2017. His ongoing condition included constant headaches, pain symptoms, reduced strength and a restricted range of motion in his neck and spine.

The Applicant alleged that he experienced significant exacerbations of his pain symptoms while driving his manual transmission 2012 Toyota Land Cruiser Work Mate due to his chronic pain and the vibrations and movement of his vehicle. He alleged that these problems were worsening over time and he feared he would eventually be unable to drive. The Applicant claimed that he required a vehicle to attend his medical and therapy appointments, and his daily activities.

Initially, modifications to his existing vehicle were proposed to improve the suspension so as to alleviate movement of the vehicle whilst driving and therefore reduce the Applicant’s symptoms whilst driving.

However, upon receiving expert opinion it was considered that modifications to the Applicant’s existing vehicle would incur significant upfront and ongoing costs, and would not provide the relief the Applicant sought as effectively as a brand-new vehicle.

The Applicant made a claim for a new vehicle pursuant to Sections 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act). The Applicant trialed some different new vehicles and was assessed by an Occupational Therapist arranged by the Respondent Insurer. These vehicles included features such as heated seating, improved suspension, and 360-degree cameras and sensors. These features provided the Applicant with a substantial degree of relief to the aggravation of his pain and symptoms. Nonetheless, the claim was twice declined by the Respondent’s Insurer and the dispute proceeded to the Personal Injury Commission before Member Rachel Homan.

Issues

The parties agreed that the issues in dispute were: –

1. Whether the expenses claimed, being a new vehicle, constituted “medical or related treatment” pursuant to Section 59 of the 1987 Act – namely whether the provision of a vehicle was a ‘curative apparatus’ in the Applicant’s case pursuant to sub-section (e); and,
2. Whether the expenses claimed, being a new vehicle, were reasonably necessary as a result of the injury on 6 February 2017 pursuant to Section 60 of the 1987 Act.

Proceedings

The Member referred to Section 59(e) of the 1987 Act and the relevant case law and noted that the Applicant was required to prove that the new vehicle claimed was a curative apparatus. The Member reviewed the authorities in Newcastle Regional Public Tenants Council Incorporated v Grant [2005] NSWWCCPD 2 (Grant) where it was held that the claimed item must have a curative or therapeutic element that assists in some therapeutic way the management of the injured worker’s condition. Byron DP in Grant also held that while a particular item may be preferable to another item, even desirable, that in itself does not qualify the item “unless it can have some therapeutic impact”.

As well as relying upon medical and expert evidence, the Applicant provided multiple statements. He claimed that he required a large vehicle with easy access due to his tall and large stature, as well as various features, such as an air suspension system and a 360-degree camera and sensor.  He also claimed that he required a vehicle with ventilated heating and cooling seats, and a large 4WD with the same towing capacity as his Toyota Land Cruiser as he alleged that this was required in the area in which he lived.

The Respondent relied upon a series of reports from an Occupational Therapist who agreed that the Applicant’s 2012 Toyota Land Cruiser was not suitable for his driving requirements due to his chronic pain and symptoms. She identified multiple other new or late model vehicles that would be suitable for the Applicant’s requirements ranging in price from $72,187.00 to $116,811.90.

The Occupational Therapist also recommended various features to be included in the new vehicle which included; an SUV body type vehicle, a fully adjustment driver’s seat, automatic transmission, a reversing camera, a suspension system that reduced the vibration and ride harshness and heated seating.

Decision

The Member found the Applicant did not need a 4WD with the same towing capacity as his Toyota Land Cruiser, or cooling seats, as the medical and expert evidence did not indicate that these would provide a curative or therapeutic benefit to the Applicant’s symptoms. Further, the Member noted that that the Applicant lived in an area that had sealed bitumen roads and that an SUV type vehicle was suitable for such roads; therefore, a large 4WD was not necessary, even if it was preferred by the Applicant.

The Member accepted that:

• The Applicant required a vehicle to attend to his appointments and normal activities of daily living;
• An appropriate new vehicle was reasonably necessary to alleviate the aggravation of his pain and symptoms whilst driving that were related to his work injury in accordance with accepted case law;
• That a Volkswagen Touareg 210TDI Elegance or 190TDI Premium vehicle, as recommended by the expert evidence, was a suitable vehicle as that the Touareg models were accepted as likely to be effective in alleviating the aggravation of the Applicant’s pain and symptoms whilst driving;
• Other suitable vehicle were not reasonably necessary as that the Touareg was cheaper whilst providing the same benefits;
• Th Applicant should not potentially be ‘out-of-pocket’ when obtaining the new vehicle and therefore no ‘set’ amount would be ordered as the car-sale market was always fluctuating; and,
• That the Respondent be afforded the market or fair trade-in value of the Applicant’s current vehicle.

The Member Ordered that the Respondent pay as compensation, pursuant to Section 60 of the 1987 Act, the Applicant’s costs of a new or late model Volkswagen Touareg, less the fair market or trade in value.

Implications

While it has been established in case law for some time, this is a timely reminder that a new vehicle can be considered to be medical treatment pursuant to Sections 59 and 60 if it is found to be a curative apparatus, and that each individual case will be decided on its own merits. This matter also indicates that the Respondent should be afforded the benefit of the fair market or trade in value of the existing vehicle in such claims.

Should you have any queries concerning a particular workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.