Cook and Comcare

[2005] AATA 38

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 38

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No: N2004/854

GENERAL ADMINISTRATIVE DIVISION		)
Re		ELIZABETH COOK

Applicant

And COMCARE

Respondent

DECISION

Tribunal Robin Hunt, Senior Member

Date17 January 2005

PlaceSydney

Decision The Tribunal affirms the decision under review

[SGD] Robin Hunt

Senior Member

CATCHWORDS

WORKERS COMPENSATION - Medical Expenses -- Naturopathy – Mineral and herbal treatments – Not medical treatments.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16

Administrative Appeals Tribunal Act 1975 (Cth) s 26

Case Law

Bashar v Comcare (2002) 69 ALD 784

Capital Territory Health Commission v Cavanagh, (FCA 78/008; 3 March 1978; Nimmo J)

Comcare v Watson (1997) 46 ALD 481

Re Jorgenson and Commonwealth (1990) 23 ALD 321

Re Watson and Comcare (1996) 40 ALD 655

Thiele v Commonwealth (1990) 95 ALR 172

Re King and Comcare(1998) 53 ALD 791

REASONS FOR DECISION

17 January 2005	Robin Hunt, Senior Member
summary

1.      Ms Elizabeth Cook, the Applicant, applied to the Administrative Appeals Tribunal (the Tribunal) for review of that part of the Respondent’s Determination of 16 April 2004 not to reimburse her for the cost of specific items of expenditure which she claimed were reasonable medical expenses. The expenses rejected by the Respondent were incurred for an attendance and treatment by a Naturopath, herbal remedies and a preparation called “Ounce of Prevention”. Ms Cook purchased these treatments for relief of her chronic pain disorder and secondary depression.

2. The Tribunal, in a previous decision concerning Ms Cook’s claim, found on 10 January 2003 that the Respondent was liable for Ms Cook’s reasonable medical expenses for an injury which brought about her chronic pain disorder and depression. The Respondent has reimbursed the bulk of Ms Cook’s expenses claimed but did not reimburse the specific expenses claimed in the current case. It argued these expenses were not medical expenses as defined for the purposes of section 16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Ms Cook argued that the expenses were before the Tribunal when it made its decision on 10 January 2003, that this meant the Tribunal included them in its consideration of reasonable medical expenses so that to exclude them infringed section 26 of the Administrative Appeals Tribunal Act 1975 (AAT Act). The Tribunal has decided that the Respondent’s decision not to make these payments should be affirmed as set out below.

the issue

3.      The Tribunal has already decided that the Respondent is liable for Ms Cook’s reasonable medical expenses for the injury which caused her widespread and regional chronic pain disorder and secondary depression. The specific items at issue in the present matter are the cost of an attendance and treatment from D De Corso, a Naturopath, and an “Ounce of Prevention” treatment.

4. Ms Cook has argued that the costs of these treatments were part of her claim before the Tribunal at first instance and that section 26 of the AAT Act…