IN THE MAGISTRATES COURT OF VICTORIA



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|IN THE MAGISTRATES COURT OF VICTORIA | |

AT latrobe valley

WORKCOVER DIVISION

Case No.B11037504

|GERALDINE GILLEN |Plaintiff |

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|VICTORIAN WORKCOVER AUTHORITY |Defendant |

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|MAGISTRATE: |S GARNETT |

|WHERE HELD: |LATROBE VALLEY |

|DATE OF HEARING: |7 OCTOBER 2011 |

|DATE OF DECISION: |4 NOVEMBER 2011 |

|CASE MAY BE CITED AS: |GILLEN v VWA |

REASONS FOR DECISION

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Catchwords: s 5: personal and household services – s99(1)(a) reasonable costs of medical services: purchase of bed & pillows – claim for re-imbursement – s99(2)(c)(iii) - Worksafe Guidelines – aid or appliance must be at the request of a medical practitioner and prior approval required.

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|APPEARANCES: |Counsel |Solicitors |

|For the Plaintiff |Mr N Horner |Maurice Blackburn |

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|For the Defendant |Mr J Batten |Minter Ellison |

HIS HONOUR:

On 9 February 2010, Ms Gillen claimed reimbursement from Allianz for the costs of a “Serene Pocketed Spring Ensemble” bed base and mattress in the amount of $3,140 and two pillows in the amount of $158 pursuant to s 99 of the Act. The defendant denied liability on 12 July 2010 on the basis that the claimed expenses were not reasonable and/or necessary.

Ms Gillen gave evidence that she sustained an injury to her low back between 1992 and 1995 which arose out of or in the course of her employment as a mental health aide at Hobson Park Psychiatric Hospital. She told the court that her workcover claim was accepted, that she underwent surgery in 2006 by way of a laminectomy, L5-S1 microdiscectomy and rhizolysis of the left S1 nerve root and settled a common-law damages action on 30 June 2000. Ms Gillen gave evidence that she still experiences low back pain and left-sided sciatic pain and that she purchased a new bed and pillows in December 2009/January 2010 as her old bed was approximately 15 years old and was causing increasing back pain and sleep disturbance.

Ms Gillen told the court that after purchasing the bed and pillows she consulted Dr Jarman, her treating general practitioner, and told him that her new bed was of considerable help in relation to her pain level and on that basis he provided a letter of support dated 9 February 2010 noting that, ”the new bed may help reduce her consumption of analgesics and improve quality sleep”. He recommended that Allianz help in the purchase of the bed.

I find that the defendant's submission is correct in that it is not liable for the claimed costs on the basis that Ms Gillen failed to comply with the provisions of the Act and the WorkSafe Guidelines which require that the provision of aids and appliances be at the request of a doctor and with the prior approval of the agent. S 99(1)(a) provides that the defendant is liable for the reasonable costs associated with personal and household services. “Personal and household services” is defined in s5 to mean; the provision of any one or more of the following of a kind or type, and by a person, approved by the Authority – (f) at the request of a medical practitioner, an aid, assistance, appliance, apparatus or service,…… When considering the “reasonable costs” of a service, s99(2)(c)(iii) provides that regard should be had to; any guidelines issued by the authority in respect of services or provision of that kind. In relation to aids and appliances, 10.5.2 of the Worksafe Guidelines provide that written prior approval is required and an occupational therapist should assess the need for a new bed when it is recommended by a medical practitioner.

Accordingly, as Ms Gillen failed to comply with the requirements of the Act, the defendant is not liable to re-imburse her for the claimed costs.

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