29 November 2019
A motor vehicle as a medical expense
The recent decision of Dries v CGA Glass & Aluminium Pty Ltd  NSWWCC 329 (Dries) in the Workers Compensation Commission has seen a worker awarded a new motor vehicle as a medical expense.
Following a multilevel spinal fusion the worker had significant mobility restrictions and used mobility aids which had been paid for by the insurer. The aids included a wheelchair, arm-rest walker, walking sticks and a mobility scooter. He claimed he was required to have at least two of these four options available to him at all times to deal with changing terrain, and that they did not fit in his Mazda 3.
The worker claimed the cost of a new Hyundai Imax (including a ramp fit out, less the trade in value of his old car) under section 60 of the Workers Compensation Act 1987 (1987 Act), arguing the new vehicle was a ‘curative apparatus’ within the meaning of sections 59 and 60 of the 1987 Act.
Section 60 provides a worker is entitled to payment of reasonably necessary medical or related expenses resulting from a workplace injury.
‘Medical or related treatment’ is defined in section 59 of the 1987 Act. There are eight categories into which treatment can fall:
‘(a) treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b) therapeutic treatment given by direction of a medical practitioner,
(d) the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f) care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity,
(f1) domestic assistance services,
(g) the modification of a worker's home or vehicle directed by a medical practitioner having regard to the nature of the worker's incapacity, and
(h) treatment or other thing prescribed by the regulations as medical or related treatment.’
The employer argued a Hyundai Imax was not a curative apparatus within the meaning of section 59 , as the worker’s wife (who was acting as his carer) would be the one driving and would be the one who benefited directly from it, not the worker. Further it was argued that, if the worker’s wife could not transport his mobility aids, she should not be his carer.
The worker referred to the decision in Newcastle Regional Public Tenants Council Incorporated v Grant  NSWWCC PD 2 which examined a number of authorities relating to curative apparatus. The authorities conclude:
An apparatus may be curative even if does not ‘cure’ the worker’s condition but assisted in the ‘continual war with disease, atrophy of the muscles by lack of use, and even psychological decay by reason of lack of something to do’ (Harbison v Harbison  NSWCC 15; (2000) 19 NSWCCR 548 (Harbison));
Harbison also established that an item in itself is not an inherently curative apparatus and it must offer a therapeutic to the injured worker. The fact that someone other than the injured worker may benefit from the provision of this is irrelevant. However, if the benefit only accrued to some other person and there was no benefit to the injured worker, the item could not be said to be of therapeutic assistance.
In Coomber v Red Funnel Fisheries Newcastle Pty Ltd  NSWCC 27 the worker was not entitled to the cost of a new car with an automatic transmission as the employer had paid the equivalent cost of converting the car’s manual transmission to an automatic transmission and discharged its onus, noting the definition of medical expenses included modifications to a worker’s vehicle.
In Grant it was held the worker was entitled to the cost of a new motor vehicle as a curative apparatus in circumstances where it would provide some alleviation of pain and allow her to participate more actively in life and pursue a social life outside of her home. Further it would allow her greater independence as she would not be reliant on her husband to transfer her to and from her wheelchair to the car.
The arbitrator in Dires observed these authorities demonstrate that each case turns on its own unique facts.
The employer conceded the worker was unable to drive and was reliant upon his wife, as his carer to drive for him. It also conceded the worker was unable to put his walker in the car and was unable to leave home without his mobility aids. The evidence from the worker was that the walker did not fit and had never been able to fit into the car.
The arbitrator found the evidence established a clear benefit to the worker, namely the proposed van with ramp would enable his mobility equipment to be transported with greater ease. She noted there was also clear evidence concerning the therapeutic impact of the worker being able to mobilise outside the home with the assistance of mobility aids which were necessary for him.
Ultimately the arbitrator was satisfied the new vehicle would provide the necessary therapeutic impact to qualify as a curative apparatus in circumstances where the mobility aids required by the worker could not be transported in his Mazda 3.
The arbitrator ordered the employer to pay the cost of the proposed Hyundai Imax including the cost of a ramp fit out, less the trade-in value of the worker’s Mazda 3.
The take away message
The definition of a curative apparatus is broad and, in addition to motor vehicles, has been found to include travel by taxi (Woollahra Council v Beck  14 NSWCCR 179), a computer (Sinanian v WorkCover Authority (NSW)  19 BSWCCR 83), farm equipment (Harbison v Harbison  19 NSWCCR 548) and pumps and heaters for a pool (McWilliams v Rachel Forster Hospital for Women and Children  23 NSWCCR 197).
It is important to remember that the definition of medical and related treatment expenses goes far beyond what is typically thought of as medical treatment i.e. consultation with a general practitioner or specialist, surgery, medication or physiotherapy.
When assessing claim insurers should keep in mind the definition of medical or related treatment in section 59 of the 1987 Act.
Author: Kate Ralph
Contributing partner: Mick Franco