Brown and Comcare - [2011] AATA 193

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 193
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2010/0086 &
) No 2010/4978

GENERAL ADMINISTRATIVE DIVISION
)

Re EMILY BROWN

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member
Date23 March 2011
PlaceCanberra

Decision The decisions under review are varied.
.................[sgd]............................

Professor RM Creyke, Senior Member

CATCHWORDS
WORKERS’ COMPENSATION – travel costs in obtaining medical treatment – whether journey necessary – whether travel costs reasonable – whether medical treatment – decisions under review varied
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 16, 36
Safety, Rehabilitation and Compensation Regulations 2002 (Cth) reg 17
Australian Securities and Investment Commission v Donald (2003) 203 ALR 566
Fletcher v Commissioner of Taxation (1988) 19 FCR 442
Re Mecke and Comcare [2006] AATA 593
Re Pedder and Military Rehabilitation and Compensation Commission [2008] AATA 290
Re Stack and Military Rehabilitation and Compensation Commission [2010] AATA 334.
Re Stevens and Comcare (AAT 10498, 26 October 1995)
Re Stevens and Comcare (AAT 11961, 19 June 1997)
REASONS FOR DECISION
23 March 2011
Professor RM Creyke, Senior Member
1.       Ms Emily Brown, who is 20 years of age, is an enrolled nurse who has been employed by The Canberra Hospital since 6 April 2009. On 18 June 2009 she suffered an injury to her lumbar spine while at work. At the time she was 19 years of age and had relocated to Canberra from Temora, NSW, her home town, about three months earlier. Ms Brown’s back injury was accepted as compensable by Comcare on 30 September 2009 and she is currently working in modified duties for six hours a day, four days a week.
2.      There are two applications for review. In claim number 2010/0086 Ms Brown sought reimbursement of travel expenses for 12 trips between Queanbeyan and Temora and between Temora and Wagga Wagga, NSW for the period 25 June 2009 to 9 October 2009. The total travelling expenses claimed were $1589.40. On 26 November 2009, Comcare accepted that claim. However, on 4 December 2009 Comcare revoked the initial decision. An overpayment of $1589.40 was raised.
3.      In the second decision, claim number 2010/4978, Ms Brown sought reimbursement of travel expenses for travel between Temora and Queanbeyan/Oxley in the period 20 July to 23 August 2010. The reasons for these journeys were to attend physiotherapy, nurses meetings, a meeting to fill out forms at the hospital, and meetings with Dr Ian Low, a specialist in occupational medicine. In total, $4026.00 was claimed. That claim was rejected by Comcare on 6 October 2010, a decision upheld on review on 9 November 2010.
4.      On 8 January 2010 Ms Brown applied to the Tribunal for review of the first decision; and on 16 November 2010, she sought review of the second decision. The two matters were heard together on 1 March 2011 as the facts underpinning them overlap.
Legislation
5.      The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) and…

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 Brown and Comcare

Details

AGLC: Brown and Comcare [2011] AATA 193
Case: [2011] AATA 193
Decision Date: 23 March 2011

CaseChat Overview and Summary

Brown, an employee of the Commonwealth, sustained injuries in the course of his employment. Comcare, the respondent, is the Commonwealth’s workers' compensation insurer. The applicant sought reimbursement of travel expenses incurred in accessing medical treatment, which Comcare had previously denied. The matter was brought before the Administrative Appeals Tribunal (AAT) for review, and subsequently, the Federal Court of Australia.

The central legal issues before the court were whether the travel undertaken by the applicant was necessary, the reasonableness of the travel costs incurred, and whether the expenses related to medical treatment. Additionally, the court was required to assess whether the AAT's decisions in varying the respondent's initial determinations were justified.

The court found that the applicant's travel was necessary to obtain the medical treatment required, and the costs incurred were reasonable. The court emphasised that the expenses were directly related to the applicant's medical treatment, and therefore, were compensable under the relevant legislative provisions. The AAT's variation of Comcare's initial decisions was upheld, as the tribunal had properly exercised its discretion and applied the correct legal principles in reaching its conclusions. Consequently, the decisions under review were varied in favour of the applicant.

The final orders of the court mandated that Comcare reimburse the applicant for the travel expenses related to obtaining medical treatment, as determined by the AAT. The respondent was also directed to pay the applicant's costs associated with the proceedings.

Orders

Orders of the court

The decisions under review are varied.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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