Ahearn and Comcare (Compensation) - [2018] AATA 2975

Ahearn and Comcare (Compensation) [2018] AATA 2975 (20 August 2018)
Division:GENERAL DIVISION
File Number: 2017/5685
Re:Gerardine Ahearn
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member A Ward
Date:20 August 2018
Place:Adelaide

The Tribunal affirms the decision under review
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Member A Ward
CATCHWORDS
COMPENSATION – Claim for installation of a reverse-cycle split system air conditioner – Whether claim out of time – Whether direct link between injury and items requested – Whether prejudice to respondent – Whether delay in making claim and giving notice occasioned by mistake, absence from Australia or other reasonable cause – Decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – s 39, s 62(3)
CASES
Maric v Comcare (1993) 40 FCR 244
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
REASONS FOR DECISION
Member A Ward
20 August 2018
BACKGROUND

Ms Ahearn (“the Applicant”), made a claim for the installation of a reverse-cycle split system air conditioner in her bedroom. A determination was made on 6 December 2013 that there was no evidence that a reversible split system air conditioner in her bedroom was required for the purpose of her rehabilitation program nor that it was reasonably required having regard to the nature of the Applicant’s impairment. It was determined that s 39 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) required a direct link between the items requested pursuant to s 39(1)(e) of the SRC Act and the injury. The Applicant gave evidence that she initially accepted that decision although did not agree with it. She did not request a reconsideration of the decision within 30 days, as required by s 62(3)(b) of the SRC Act.
By letter dated 7 August 2017, she said, “I would like to have the decision … dated 6/12/13 reviewed to supply of temperature control in my bedroom.” [1]
[1] Exhibit 1, T37, p 127.
The decision was made on 17 August 2017 not to allow a request for an extension of time to lodge a request for reconsideration of the determination of 6 December 2013.
The Respondent, Comcare, disputes the request for redetermination on the basis that the Applicant should not be granted an extension of time to request reconsideration of the determination in accordance with s 62(3) of the SRC Act.
It falls to the Tribunal to determine whether an extension should be granted so that the decision can be reviewed.
HISTORY OF CONDITION
The Applicant has a series of injuries that have been accepted by Comcare and has suffered poor health for a considerable period of time. She advised the Tribunal that she stopped work in 1993 and had various attempts to return to work, both in a voluntary capacity and in return-to-work programmes. She advised that she had essentially not worked since 2005 as a consequence of varying physical and emotional conditions. The precise nature…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ahearn and Comcare (Compensation)

Details

AGLC: Ahearn and Comcare (Compensation) [2018] AATA 2975
Case: [2018] AATA 2975
Decision Date: 20 August 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a claim by Mr. Ahearn against Comcare for the installation of a reverse-cycle split system air conditioner. The dispute centred on whether Mr. Ahearn's claim was made within the relevant timeframes and whether there was a sufficient link between his accepted injury and the requested item. Comcare had opposed the claim, raising issues of prejudice due to the delay in notification.

The Tribunal was required to determine whether the delay in Mr. Ahearn making his claim and providing notice of the need for the air conditioner was occasioned by mistake, absence from Australia, or other reasonable cause, as contemplated by the relevant legislation. It also had to assess whether there was a direct causal link between Mr. Ahearn's accepted injury and the installation of the air conditioner, and whether Comcare had suffered prejudice as a result of the delay.

In its reasoning, the Tribunal applied the principles of section 43(1) of the Administrative Appeals Tribunal Act 1975. It considered the evidence presented regarding the nature of Mr. Ahearn's injury and how the air conditioner would assist in his recovery or management of his condition. The Tribunal also weighed the reasons for the delay in the claim being made and assessed whether these reasons constituted a valid excuse under the Act, taking into account any prejudice to Comcare.

Ultimately, the Tribunal affirmed the reviewable decision dated 17 August 2017.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, and in accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975, the reviewable decision dated 17 August 2017 is affirmed.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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