Graves and Comcare - [2003] AATA 1184

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1184
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2002/92

GENERAL ADMINISTRATIVE DIVISION )

Re ALDITH MARY GRAVES

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Michael Sassella, Senior Member
Date24 November 2003
PlaceCanberra

Decision The decision under review is set aside. In substitution the tribunal decides that the applicant qualifies for compensation in respect of two massage treatments a week and in respect of household services. The matter is remitted to the respondent for it to determine how many hours of compensable household services are justified each week on the basis of a new home assessment. The applicant qualifies for payment of her party-party costs by Comcare.
...............................................
Senior Member

CATCHWORDS
WORKERS' COMPENSATION – whiplash neck injury – chronic pain – depressive disorder – compensation for massage treatment – compensation for cost of household services – compensation payable for massage and household services
Safety, Rehabilitation and Compensation Act 1988 ss 4(1) (“household services”, “medical treatment”, “therapeutic treatment”), 16(1), (2), 29(1), (2), 123A, 124(1), (1A)
Compensation (Commonwealth Government Employees) Act 1971
Bashar v Comcare (2002) 69 ALD 784
REASONS FOR DECISION

24 November 2003 Michael Sassella, Senior Member

RESULT
1. The Administrative Appeals Tribunal (“the tribunal”) has decided that Comcare should compensate Ms Graves for the cost of massage treatment twice a week and for the provision of household services for a number of hours each week to be determined by Comcare following an up to date home assessment. This is a decision favourable to Ms Graves and so Comcare is to pay her reasonable party-party costs in accordance with the tribunal’s General Practice Direction[1].
[1] Mary Graves (“the applicant”) was working in Singapore for the Australian Department of Foreign Affairs when she was injured in a motor vehicle accident on 11 June 1985 (T3)[2]. It was determined on 7 November 1985 that Ms Graves would be paid workers’ compensation in respect of the injury, hyperextension injury to the cervical spine (T20). She received compensation over the years until on 11 July 2001 Comcare (“the respondent”) determined not to pay compensation for the costs of massage treatment after 31 August 2001 and not to pay compensation for the cost of home help after 31 July 2001 (T224). On 3 January 2002 in the reviewable decision a Comcare delegate reconsidered and affirmed the earlier decision (T240). This decision is before the tribunal for determination. Comcare also accepted liability for a major depressive episode in March 1999 (T172). The evidence[3] now seems that this has broadened out into a chronic pain syndrome, with little or no basis for an ongoing physical injury resulting from the motor vehicle accident.
[2] A list of exhibits is in Schedule 2.
[3] Drs Dowda (T214), Bromley ([10] below), McGill (ex R3) and Lewin (ex R5).
ISSUES
3. As regards compensation for massage treatment the issues, based on s 16 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)[4] are:
(a)Has Ms Graves suffered an injury?
(b)If the…

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 Graves and Comcare

Details

AGLC: Graves and Comcare [2003] AATA 1184
Case: [2003] AATA 1184
Decision Date: 24 November 2003

CaseChat Overview and Summary

In the case of Graves and Comcare, the applicant, who suffered a whiplash neck injury, sought compensation for chronic pain, a depressive disorder, massage treatments, and household services. The dispute was adjudicated by the Administrative Appeals Tribunal, which had to review a decision by the respondent, Comcare. The tribunal was tasked with determining whether the applicant qualified for compensation under the Safety, Rehabilitation and Compensation Act 1988 and the Compensation (Commonwealth Government Employees) Act 1971.

The primary legal issues were whether the applicant was entitled to compensation for massage treatments and household services. The tribunal had to consider the definitions of "household services" and "medical treatment" under the Safety, Rehabilitation and Compensation Act 1988, as well as the relevant provisions of the Compensation (Commonwealth Government Employees) Act 1971. The tribunal also needed to assess whether the applicant's injuries met the criteria for compensation and whether the costs of the treatments and services were reasonable and necessary.

The tribunal found that the applicant was entitled to compensation for two massage treatments per week and for household services. The tribunal set aside the original decision and decided that Comcare should compensate the applicant for these services. The tribunal remitted the matter to Comcare to determine the number of hours of compensable household services justified each week based on a new home assessment. The tribunal also ordered Comcare to pay the applicant's party-party costs.

The tribunal's decision was based on a comprehensive review of the evidence and the relevant legal provisions. The tribunal found that the applicant's injuries met the criteria for compensation and that the costs of the massage treatments and household services were reasonable and necessary. The tribunal also considered the relevant case law, including Bashar v Comcare, in reaching its decision. The tribunal's decision provides important guidance on the interpretation of the relevant legal provisions and the criteria for compensation under the Safety, Rehabilitation and Compensation Act 1988 and the Compensation (Commonwealth Government Employees) Act 1971.

Orders

Orders of the court

The decision under review is set aside. In substitution the tribunal decides that the applicant qualifies for compensation in respect of two massage treatments a week and in respect of household services. The matter is remitted to the respondent for it to determine how many hours of compensable household services are justified each week on the basis of a new home assessment. The applicant qualifies for payment of her party-party costs 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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GENERAL ADMINISTRATIVE DIVISION		)
Re		ALDITH MARY GRAVES