Basedow v Komatsu Australia Pty Limited (NSWPIC 2021) 

Key Takeaways

A new vehicle can be medical treatment for the purposes of the Workers Compensation Act 1987 (‘1987 Act’). For a worker to prove a claim, the vehicle must have a curative or therapeutic element that assists the management of the worker’s condition in a therapeutic way.

Further, the insurer, when paying the compensation, can have the benefit of a trade-in value of the worker’s existing car.

Brief Facts

The worker was injured at work on 6 February 2017. Under s60 of the 1987 Act he claimed compensation for a replacement motor vehicle or, in the alternative, modifications to his existing vehicle.

The issues in dispute in the Personal Injury Commission of NSW (PIC) were:

• whether the claim constituted ‘medical or related treatment’ pursuant to s59 of the 1987 Act; and
• whether the expenses were reasonably necessary as a result of the injury.

The worker suffered injuries to his neck and spine as a result of the incident. His evidence was that he had major problems when driving due to chronic pain. The worker’s existing vehicle was a manual Toyota Land Cruiser Work Mate, with 4 doors and a ute back tray. His symptoms became worse when travelling on uneven roads with the jolting of the vehicle causing aggravation of his lower back and pain in the neck due to whiplash motions.

Apart from his own evidence, the worker was supported by an automotive consulting engineer, an occupational therapist, an orthopaedic specialist and an occupational physician.

Decision

The Member of the PIC referred to the provisions of s59 of the 1987 Act and the case law and indicated that the worker would have to prove that the vehicle was a curative apparatus. The Member referred in particular to the case of Newcastle Regional Public Tenants Council Incorporated v Grant (NSWWCCPD2 2005) where it was held that the item must have a curative or therapeutic element that assists the management of the worker’s condition in a therapeutic way.

The Member accepted that:

• The worker needed a vehicle to attend to normal living activities.
• A Volkswagen Touareg was a suitable vehicle to alleviate the worker’s symptoms because it had, amongst other things, good entry and exit of the vehicle, very comfortable heated and ventilated seats, very good seating and a 360 degree camera.
• While other vehicles were also suitable, those vehicles were not reasonably necessary because they were more costly that the Touareg.
• That the respondent (employer/insurer) should have the ‘benefit of the fair trade-in value’ of the worker’s current vehicle.

The Member ordered the Respondent to pay for a new or late model Volkswagen Touareg less the fair market or trade-in value of the worker’s current car.

Implications

The PIC has confirmed that a new vehicle can be medical treatment under the workers compensation legislation if the worker proves it is a curative apparatus.