Elmir and Comcare - [2006] AATA 1036

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 1036
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/355

GENERAL ADMINISTRATIVE DIVISION )

Re HELEN ELMIR

Applicant

And

COMCARE

Respondent

DECISION

Tribunal J.W. Constance, Senior Member
Date 1 December 2006
Place Canberra

Decision
1)      The decision of Comcare made 14 November 2005 is set aside and in substitution it is decided that:

a)      Since 11 August 2005 Mrs Elmir has been, and at the date of this decision is, partially incapacitated for work;

b)      Since 11 August 2005 Comcare has not been, and at the date of this decision is not, liable to pay for the cost of massage therapy obtained by Mrs Elmir;

c)      Since 11 August 2005 Comcare has not been, and at the date of this decision is not, liable to pay for the cost of household services obtained by Mrs Elmir.

2)      The matter is remitted to Comcare to determine the extent of Mrs Elmir’s present incapacity.

3)      Each party has liberty to apply for a direction in relation to the costs of these proceedings but if no such application is made within 14 days of the date of this decision the costs of these proceedings incurred by Mrs Elmir shall be paid by Comcare.

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

CATCHWORDS
COMPENSATION – Aggravation of pre-existing injuries by employment related keyboard activity – Payment of cost of medical treatment and household services – Cease effects decision – Whether injury continues to result in total or partial incapacity for work – Whether medical treatment reasonably required – Whether household services reasonably required.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 16, 21, 29
Commonwealth v Borg (1994) 20 AAR 299
Comcare v Rowe (2002) 35 AAR 410; [2002] FCA 1034
Re Prica and Comcare (1996) 44 ALD 45
Re Smith and Comcare [2002] AATA 249
REASONS FOR DECISION

1 December 2006 J.W. Constance, Senior Member

INTRODUCTION
1.      From 1966 until 2005 Mrs Elmir received compensation for an injury she suffered at work in June 1995. In 2005 Comcare reviewed her situation and decided that at that time she was no longer suffering the effects of the injury. It is this decision which Mrs Elmir seeks to have reviewed by the Tribunal.
2.      For the reasons which follow I have decided that at present Mrs Elmir is partially incapacitated for work and that the matter should be remitted to Comcare to determine the extent of that incapacity. This will require further expert assessment and the development of a plan for a graduated return to work by Mrs Elmir.
FACTS
3.      Unless otherwise stated the following facts are based on the evidence of Mrs Elmir. I am satisfied of these facts on the balance of probabilities.
Mrs Elmir is 42 years of age. In 1983 she commenced employment with the Department of Social Security. In 1996 Mrs Elmir took a voluntary redundancy and since then Mrs Elmir has not been engaged in paid employment, but has spent her time…

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 Elmir and Comcare

Details

AGLC: Elmir and Comcare [2006] AATA 1036
Case: [2006] AATA 1036
Decision Date: 1 December 2006

CaseChat Overview and Summary

The applicant, Mrs Elmir, sought review of a decision made by Comcare, the respondent, that she had ceased to be incapacitated for work. The dispute arose under the Safety, Rehabilitation and Compensation Act 1988. The matter was heard in the Administrative Appeals Tribunal, with the decision being delivered by Senior Member J. L. Allsop. The central issue before the Tribunal was whether Mrs Elmir had ceased to be totally or partially incapacitated for work since 11 August 2005, the date of the cease effects decision. The Tribunal also considered whether Comcare was liable to pay for the cost of medical treatment and household services obtained by Mrs Elmir since that date.

The Tribunal examined the evidence before Comcare when it made its decision, and the evidence provided to the Tribunal. It considered the nature of Mrs Elmir's injuries and the effect of her employment-related activities on those injuries. The Tribunal found that there was evidence to support the conclusion that Mrs Elmir had been partially incapacitated for work since 11 August 2005. It held that Comcare was not liable to pay for the cost of medical treatment or household services since that date, as Mrs Elmir had not established that such treatment and services were reasonably required. The Tribunal set aside the decision of Comcare and remitted the matter to it to determine the extent of Mrs Elmir’s present incapacity.

The Tribunal ordered that the decision of Comcare made 14 November 2005 be set aside. It was decided that since 11 August 2005 Mrs Elmir had been, and at the date of the decision was, partially incapacitated for work. Comcare was not liable to pay for the cost of massage therapy or household services obtained by Mrs Elmir since that date. The matter was remitted to Comcare to determine the extent of Mrs Elmir’s present incapacity. Each party was granted liberty to apply for a direction in relation to the costs of the proceedings, but if no such application was made within 14 days of the date of the decision the costs of the proceedings incurred by Mrs Elmir were to be paid by Comcare.

Orders

Orders of the court

1) The decision of Comcare made 14 November 2005 is set aside and in substitution it is decided that:

a) Since 11 August 2005 Mrs Elmir has been, and at the date of this decision is, partially incapacitated for work;

b) Since 11 August 2005 Comcare has not been, and at the date of this decision is not, liable to pay for the cost of massage therapy obtained by Mrs Elmir;

c) Since 11 August 2005 Comcare has not been, and at the date of this decision is not, liable to pay for the cost of household services obtained by Mrs Elmir.

2) The matter is remitted to Comcare to determine the extent of Mrs Elmir’s present incapacity.

3) Each party has liberty to apply for a direction in relation to the costs of these proceedings but if no such application is made within 14 days of the date of this decision the costs of these proceedings incurred by Mrs Elmir shall be paid by Comcare.

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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