DUNKERLEY and COMCARE - [2010] AATA 417

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 417
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/6070

GENERAL ADMINISTRATIVE DIVISION )

Re ULLA-MAIJA DUNKERLEY

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)
Date8 June 2010
PlaceCanberra

Decision
The decision under review is affirmed.

[Sgd Ms A F Cunningham]
Senior Member

CATCHWORDS
WORKERS COMPENSATION - accepted injury of adjustment disorder with anxious mood - claim for reimbursement of university fees - whether medical treatment - meaning of therapeutic treatment - decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 16
Bashar v Comcare (2002) FCA 837 Thiele v Commonwealth (1995) ALR 172
Comcare and Watson (1997) ALR 173
Capital Territory Health Commission and Cavanagh (1978) FCA 5
REASONS FOR DECISION

8 June 2010 Ms A F Cunningham (Senior Member)

1. The applicant, Ulla-Maija Dunkerley has an accepted claim for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for the injury, "adjustment disorder with anxious mood". The date of injury was deemed to be 29 October 2007.
2.      Comcare accepted liability for payment of consultations with a general practitioner, counselling sessions with a psychologist and related pharmaceuticals up to and including 2 October 2009. Ms Dunkerley subsequently submitted a claim for gym and university fees. Comcare agreed to pay for a three month gym membership but rejected Ms Dunkerley's claim for reimbursement of university fees on the basis that such fees do not meet the definition of "medical treatment" under the SRC Act. Ms Dunkerley seeks a review of Comcare's reviewable decision dated 17 December 2009 affirming a determination dated 17 November 2009.
Issues
3.      The issues for the Tribunal to determine are;
1.        Whether the applicant's university fees qualify as medical treatment           obtained in relation to her "adjustment disorder with anxious mood".
2. Whether it was reasonable for the applicant to undertake university studies for the purposes of Section 16 of the SRC Act.

the applicant's case
4.      Dr Lawrence, the applicant's medical practitioner and a primary care psychiatrist certified on 4 December 2007 that Ms Dunkerley was fit to return to her pre-injury duties in another work area of MDST as from 4 December 2007. However this restriction was not able to be accommodated and Ms Dunkerley remained on leave.
5.      Ms Dunkerley contends that her doctor had recommended that she undertake activities to occupy her time as she was unable to return to work. She claims that she acted on this advice and enrolled in a university Masters Degree Course in teaching English as a second language.
6.      It was Ms Dunkerley's evidence that the course of study alleviated her stress and anxiety by offering her the social inclusion that had been denied in her workplace.
7.      Ms Dunkerley submitted a copy of a research summary from Victoria Health entitled "Social Inclusion as a Determinant of Mental Health and Wellbeing". Ms Dunkerley argued that her course of study constituted medical…

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 DUNKERLEY and COMCARE

Details

AGLC: DUNKERLEY and COMCARE [2010] AATA 417
Case: [2010] AATA 417
Decision Date: 8 June 2010

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Dunkerley and Comcare revolved around the eligibility of a claim for reimbursement of university fees under workers compensation, following an accepted injury of adjustment disorder with anxious mood. The central issue was whether the university fees could be considered as therapeutic treatment under the relevant legislation, specifically the Safety, Rehabilitation and Compensation Act 1988. The applicant argued that the university fees constituted part of a treatment plan aimed at rehabilitating her mental health condition, thus qualifying for reimbursement.

The court was tasked with interpreting the scope of therapeutic treatment as defined by the Act and determining whether the university fees fell within this definition. The applicant’s argument hinged on the broad interpretation of therapeutic treatment, which traditionally includes measures that aid in the rehabilitation of an injured worker. The court examined previous cases, including Bashar v Comcare and Thiele v Commonwealth, which provided guidance on the interpretation of similar provisions. Additionally, it considered the decision in Capital Territory Health Commission and Cavanagh, which provided insight into the treatment of mental health conditions.

The court found that the university fees did not qualify as therapeutic treatment under the Act. It reasoned that while the university fees were part of a broader treatment plan, they were not directly aimed at treating the injury itself. Instead, the fees related to the applicant's pursuit of education, which, although beneficial for her overall well-being, did not constitute a specific therapeutic intervention for her mental health condition. Consequently, the court affirmed the decision under review, upholding the determination that the university fees were not reimbursable under workers compensation.

Orders

Orders of the court

The decision under review is affirmed.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		ULLA-MAIJA DUNKERLEY