D'Amico and Comcare - [2007] AATA 77

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 77
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/265

GENERAL ADMINISTRATIVE DIVISION
)

Re DONATO D’AMICO

Applicant

And

COMCARE

Respondent

DECISION

Tribunal J.W. Constance, Senior Member
Date2 March 2007
Place Canberra

Decision
1) The decision of Comcare made 15 August 2005 which affirmed a determination that Mr D’Amico was no longer entitled to compensation under section 16 of the Safety, Rehabilitation and Compensation Act (1988) for pain management treatment prescribed by Dr Cassar is set aside.

2) In substitution for the decision set aside it is decided that up to and including the date of this decision Mr D’Amico is entitled to compensation for the pain management treatment prescribed by Dr Cassar in respect of the compensable injury suffered by Mr D’Amico on 1 May 1984.

3) The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay Mr D’Amico’s reasonable costs in this application.

..............................................
J.W. Constance, Senior Member

CATCHWORDS
Compensation – Commonwealth employees – Lower back injury – Whether treatment obtained in relation to the injury – Whether treatment reasonable to obtain in the circumstances – Therapeutic treatment.
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 16
Comcare v Watson (1997) 73 FCR 273; [1997] FCA 139
Bashar v Comcare (2002) 69 ALD 74; [2002] FCA 834
Re Mikic and Comcare (2002) 67 ALD 144; [2002] AATA 125
REASONS FOR DECISION

2 March 2007 J.W. Constance, Senior Member

INTRODUCTION
1.      Mr D’Amico was an Attendant at Parliament House in 1984 when he injured his back. Apart from very short periods when he attempted to return to work, he has been unable to work since the accident.
2.      Since 2002 Mr D’Amico has been receiving treatment which combines massage, acupuncture and medication. In 2005 Comcare decided that it would no longer compensate Mr D’Amico for the cost of this treatment. Mr D’Amico seeks a review of this decision.
3.      For the reasons that follow I have decided that the treatment in question is treatment which is reasonably for Mr D’Amico to obtain. The decision under review will be set aside.
FACTS
4. Unless otherwise stated the following findings of fact are based on the evidence of Mr D’Amico. A reference to a “T” document is a reference to the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) which are exhibit R2. I am satisfied of the facts found on the balance of probabilities.
5.      Mr D’Amico is sixty-eight. In 1984 he was working as an attendant in Parliament House, employed by the House of Representatives. His duties included moving furniture. On 1 May 1984 Mr D’Amico injured his back whilst moving a heavy table. As a result of this injury he has not worked since September 1984. The Commissioner for Employees Compensation accepted liability to compensate Mr D’Amico for this injury…

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 D'Amico and Comcare

Details

AGLC: D'Amico and Comcare [2007] AATA 77
Case: [2007] AATA 77
Decision Date: 2 March 2007

CaseChat Overview and Summary

D'Amico brought a claim before the Administrative Appeals Tribunal against Comcare, seeking compensation for pain management treatment prescribed by Dr Cassar in relation to a compensable injury sustained on 1 May 1984. Comcare had previously determined that D'Amico was no longer entitled to compensation for the treatment prescribed by Dr Cassar, a decision which D'Amico sought to overturn.

The central legal issues before the Tribunal were whether the treatment obtained in relation to the injury was reasonable to obtain in the circumstances and whether the treatment prescribed was therapeutic. The Tribunal needed to determine whether the decision made by Comcare on 15 August 2005 was correct and if not, whether D'Amico should be compensated for the pain management treatment prescribed by Dr Cassar.

The Tribunal found that the decision of Comcare was not correct, and that D'Amico was entitled to compensation for the pain management treatment prescribed by Dr Cassar. The Tribunal reasoned that the decision of Comcare did not take into account all of the relevant material, including the evidence of D'Amico and Dr Cassar. The Tribunal also found that the treatment prescribed by Dr Cassar was reasonable to obtain in the circumstances, and that it was therapeutic in nature. Accordingly, the Tribunal set aside the decision of Comcare and substituted a new decision in its place, ordering that D'Amico was entitled to compensation for the pain management treatment prescribed by Dr Cassar.

The Tribunal also ordered that the parties had liberty to apply within 14 days in relation to costs. Should such an application not be made, Comcare was to pay D'Amico's reasonable costs in this application.

Orders

Orders of the court

1) The decision of Comcare made 15 August 2005 which affirmed a determination that Mr D’Amico was no longer entitled to compensation under section 16 of the Safety, Rehabilitation and Compensation Act (1988) for pain management treatment prescribed by Dr Cassar is set aside.

2) In substitution for the decision set aside it is decided that up to and including the date of this decision Mr D’Amico is entitled to compensation for the pain management treatment prescribed by Dr Cassar in respect of the compensable injury suffered by Mr D’Amico on 1 May 1984.

3) The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay Mr D’Amico’s reasonable costs in this application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.