A motor vehicle as a medical expense

Author:Ms Kate Ralph
Profession:Bartier Perry
 
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The recent decision of Dries v CGA Glass & Aluminium Pty Ltd [2019] 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,

(c) [repealed]

(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...

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