Dalgleish and Comcare (Compensation) - [2017] AATA 1325

Dalgleish and Comcare (Compensation) [2017] AATA 1325 (15 August 2017)
Division:GENERAL DIVISION
File Number(s): 2017/0376
Re:James Dalgleish
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Egon Fice, Senior Member
Date:15 August 2017
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution determines that Comcare is liable to pay for the cost of Mr Dalgleish obtaining cushioning runners as described by his podiatrist.
......................[sgd]..................................................
Egon Fice, Senior Member
WORKERS COMPENSATION – 1986 workplace accident – injured leg – cushioned shoes – whether a compensable medical expense – application of the Compensation (Commonwealth Government Employees) Act 1971 – transition provision of the Safety, Rehabilitation and Compensation Act 1988.
Legislation
Employees Compensation Act 1930 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 16(1), 39, 124
Cases
Heffernan v Comcare (2014) 218 FCR 1
REASONS FOR DECISION
Egon Fice, Senior Member
15 August 2017

In the course of his employment with the Department of Defence, on 12 August 1966 Mr Dalgleish was involved in a motor vehicle accident while travelling from his workplace to home. His claim for workers compensation under the Commonwealth Employees Compensation Act 1930 (the 1930 Act) was accepted in a determination made on 7 October 1968.
A common-law action brought in the Supreme Court of Victoria against the driver of the vehicle involved in the 1966 accident was settled in December 1968 for $25,000.
On 28 July 1986, when employed by the Department of Housing and Construction, Mr Dalgleish was hit on the left side by a car on the way to work. He again lodged a claim for compensation in respect of injuries suffered in that accident (fractures to the left foot) and his claim was accepted on 25 August 1986. Mr Dalgleish brought a common-law claim in the County Court of Melbourne in September 1986 against the driver who caused that accident. That matter was settled on 9 February 1992 when Mr Dalgleish agreed to accept the sum of $250,000 plus costs to be paid by the Transport Accident Commission (TAC).
On 6 February 2003 Comcare determined that $150,000 needed to be offset before compensation payments could recommence in respect of the 1986 accident. At that date Mr Dalgleish’s medical expenses amounted to $6,480.54 and he had received incapacity payments totalling $143,519.46. Comcare also determine that it was only liable to pay compensation for injuries arising out of the 1986 accident and not the 1966 accident. Earlier, on 16 October 2000, the Tribunal (Senior Member Pascoe) said:
It would appear to follow that compensation would be payable to Mr Dalgleish under the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) as a consequence of the 1986 accident…
In a letter dated 19 February 2008 Dr John M Findeisen, a rheumatologist, said Mr Dalgleish required a new fitted cushioned shoe for his injured left leg. A radiological report from Sandringham & District Memorial Hospital dated 16 July 2008 disclosed a number of…

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 Dalgleish and Comcare (Compensation)

Details

AGLC: Dalgleish and Comcare (Compensation) [2017] AATA 1325
Case: [2017] AATA 1325
Decision Date: 15 August 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr Dalgleish against a decision of a Review Officer of Comcare. The dispute centred on Comcare's liability to pay for cushioning runners required by Mr Dalgleish to be used in conjunction with orthoses prescribed by his podiatrist, Dr Samaras. The decision was made by Senior Member Egon Fice of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether Mr Dalgleish had an entitlement to have the cost of the cushioning runners provided by Comcare, and whether this entitlement, which arose under the *National Health Act 1971* (Cth) (the 1971 Act), continued under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (the SRC Act).

Senior Member Fice reasoned that the statements made by Dr Samaras clearly indicated that the cushioning runners were an aid reasonably required by Mr Dalgleish as a result of his injury. The fact that Comcare had previously met the cost of these shoes, without any explanation for the cessation of payment, supported this conclusion. The Tribunal found that Mr Dalgleish's entitlement arose under section 37 of the 1971 Act and, by virtue of the transitional provisions in section 124 of the SRC Act, this entitlement remained.

Accordingly, the Tribunal set aside the Review Officer's decision and substituted a determination that Comcare is liable to pay for the cost of Mr Dalgleish obtaining the specified cushioning runners and their future replacements as reasonably required.

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

Given the statements made by Dr Samaras regarding the need Mr Dalgleish has for cushioning runners to be used in conjunction with the orthoses prescribed by him, it appears to me to be incontrovertible that those shoes are an aid reasonably required by him as a result of his injury. The cost of those shoes was met by Comcare in the past and no explanation has been given as to why that payment ceased. Mr Dalgleish’s entitlement arises out of the 1971 Act and, under the transitional provisions in the SRC Act, the entitlement remains.CONCLUSION I have found that Mr Dalgleish’s entitlement to have provided for him shoes described as cushioning runners to be used in conjunction with orthoses prescribed by Dr Samaras arose under s. 37 of the 1971 Act. That entitlement remains regardless of the provisions now found in s. 39 the SRC Act as a result of the transitional provisions set out in s. 124 of the SRC Act. Accordingly, I find that the decision made by a Review Officer of Comcare on 29 November 2016 was not the correct decision. I set aside that decision and in substitution determine that Comcare is liable to pay for the cost of Mr Dalgleish obtaining cushioning runners as described by his podiatrist, Dr Samaras; and for replacements from time to time as he reasonably requires.

Ratio Decidendi

Legal Principle Established

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