Graham and Comcare - [2007] AATA 1715

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1715
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          A2006/56
  )          A2007/30

GENERAL ADMINISTRATIVE DIVISION )

Re TANJA GRAHAM

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date29 August 2007
PlaceCanberra

Decision
The decisions under review are set aside and in place thereof the Tribunal decides that:

(a) liability to compensate Ms Graham for medical treatment expenses in relation to the left ankle injury she suffered on 14 October 2003 did not cease on 25 August 2004 or on 15 August 2005; and

(b) the pain management program and intra-articular injections she obtained from Dr Speldewinde were medical treatments in relation to her left ankle injury that it was reasonable for her to obtain in the circumstances.

..............signed........................
Mr S. Webb, Member

CATCHWORDS
COMPENSATION - left ankle and psychological injury - medical treatment - intra-articular injections - pain management program - patient followed specialist medical advice – benefits obtained – cost - objective test of reasonableness - treatment was reasonable for the employee to obtain in the circumstances - decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 16, 67
Comcare v Watson (1997) 46 ALD 481
Bashar v Comcare (2002) 69 ALD 784
Re Jorgensen & Commonwealth (1990) 11 AAR 543
Comcare v Rope [2004] FCA 540
REASONS FOR DECISION

29 August 2007 Mr S. Webb, Member

1.        Tanja Graham was attacked by a student in the course of her employment as a teacher. She suffered an injury to her left ankle and a psychological injury, and claimed compensation. Her claim was accepted. Subsequently she claimed compensation for specific medical treatment expenses. However, her claims relating to a pain management program and intra-articular injections to her left ankle were rejected by primary determination and on reconsideration. Those matters now rise for review.
2.      In October 2003, Ms Graham was employed as a Special Teacher’s Assistant by the ACT Department of Education, Youth and Family Services. Thus she is an ‘employee’ within the meaning of s.5 of the Act.   It is not disputed that Ms Graham suffered an injury to her left ankle on 14 October 2003 in the course of her employment in relation to which Comcare accepted liability under s.14 of the Safety Rehabilitation and Compensation Act 1988 (the Act). Nor is it disputed that the pain management program and the intra-articular injections Ms Graham obtained from Dr G. Speldewinde constitute ‘medical treatment’ for the purposes of s.4 and s.16 of the Act. I will proceed on that basis.
3.      There are two matters for determination. The first is whether the effects of Ms Graham’s left ankle injury ceased on or before 25 August 2004 or 15 August 2005. The second is whether the pain management program and the intra-articular injections she obtained from Dr Speldewinde in 2004 and 2005 are medical treatments in relation to the left ankle injury that it was reasonable for Ms Graham to obtain in the circumstances.
4.      Considering all…

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 Graham and Comcare

Details

AGLC: Graham and Comcare [2007] AATA 1715
Case: [2007] AATA 1715
Decision Date: 29 August 2007

CaseChat Overview and Summary

In the case of Graham v Comcare, the Federal Circuit Court was tasked with reviewing decisions made by the Administrative Appeals Tribunal (AAT) regarding compensation claims for medical treatment costs associated with a left ankle injury and psychological injury. The central dispute involved whether the costs of a pain management program and intra-articular injections, which the claimant, Ms. Graham, received from Dr. Speldewinde, were reasonable expenses for the treatment of her left ankle injury and whether the liability to compensate for such treatment had ceased.

The court was required to determine the reasonableness of the treatment costs under the Safety, Rehabilitation and Compensation Act 1988. Specifically, it had to assess if the treatments were reasonable for Ms. Graham to obtain in the circumstances and whether her adherence to specialist medical advice justified the expenses. The court also needed to decide whether the liability for compensating these expenses had indeed ceased on the dates specified by the AAT.

In its reasoning, the court found that the AAT had erred in its assessment of the reasonableness of the treatment costs. The court emphasised that the objective test of reasonableness should be applied, taking into account the advice provided by specialists and the benefits obtained by Ms. Graham. The court held that since Ms. Graham followed the advice of her medical specialists and derived benefits from the treatments, the pain management program and the intra-articular injections were reasonable expenses. Furthermore, the court concluded that the liability to compensate for these expenses had not ceased on the dates set by the AAT.

The court's decision set aside the previous determinations of the AAT and ruled that Ms. Graham's liability for compensation regarding the medical treatment expenses related to her left ankle injury did not cease on the specified dates. Additionally, it determined that the treatments obtained from Dr. Speldewinde were reasonable and within the scope of what Ms. Graham could be expected to undertake under the circumstances.

Orders

Orders of the court

The decisions under review are set aside and in place thereof the Tribunal decides that:

(a) liability to compensate Ms Graham for medical treatment expenses in relation to the left ankle injury she suffered on 14 October 2003 did not cease on 25 August 2004 or on 15 August 2005; and

(b) the pain management program and intra-articular injections she obtained from Dr Speldewinde were medical treatments in relation to her left ankle injury that it was reasonable for her to obtain in the circumstances.

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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