Holt and Comcare - [2006] AATA 1059

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 1059
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2005/29

GENERAL ADMINISTRATIVE DIVISION )

Re ASHLEY CRAIG HOLT

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date8 December 2006
PlaceBrisbane (Heard in Alice Springs)

Decision
In accordance with s 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal:

1.      Sets aside the decision of the respondent dated 22 August 2005;

2.      In substitution decides that the respondent is liable to pay the reasonable costs of the applicant’s attendance at a Buddhist meditation retreat at the Chenrezig Institute;

3.      Orders the respondent to pay the applicant’s costs, if any, of and incidental to the proceedings.

................Signed.............
Deputy President

CATCHWORDS
COMPENSATION – injured in the course of employment – acceptance of liability for condition suffered – request for attendance at a Buddhist meditation retreat – meaning of “treatment that was reasonable in the circumstances” – evidentiary onus
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14(1), 16(1)
Jorgensen and the Commonwealth (1990) 23 ALD 321
Comcare v Rope (2004) 135 FCR 443
REASONS FOR DECISION

8 December 2006 Deputy President P E Hack SC

Introduction
1.The applicant, Ashley Craig Holt, was formerly employed in a Commonwealth agency. The respondent, Comcare, has accepted liability to compensate the applicant in respect of an injury suffered by him in the course of that employment. The respondent accepts that the injury was sustained on 17 September 2002.
2.The question I have to decide is whether the applicant’s attendance at a Buddhist meditation retreat is compensable medical treatment within the ambit of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).

Background
3.The respondent has accepted liability to pay compensation for an injury described by it as “generalised anxiety disorder and adjustment reaction with brief depressive reaction”. The applicant has been treated for this condition by his general practitioner Dr Wendy Zerk for a number of years.
4.In August 2005 Dr Zerk requested the approval of the respondent for the applicant’s attendance at a Buddhist meditation retreat. It seems to have been assumed by the respondent that what was being referred to was a retreat offered by the Chenrezig Institute[1] at Eudlo in the hinterland of Queensland’s Sunshine Coast however Dr Zerk’s letter did not nominate where the retreat was to be undertaken.
[1] Described in its letterhead as “a Centre for Buddhist Study, Meditation, Retreat & Practice”.
5.In the course of his evidence the applicant told me that his recollection was that the retreat may have been offered by another institution in Victoria. In any event nothing seems to turn on the question of the precise identity of the institution offering the retreat.
6.On 22 August 2005 a delegate of the respondent denied liability on the basis that attendance at the retreat did not constitute “therapeutic treatment” as that expression is used in the Act. The decision was affirmed on reconsideration.
7.The applicant now seeks a review…

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 Holt and Comcare

Details

AGLC: Holt and Comcare [2006] AATA 1059
Case: [2006] AATA 1059
Decision Date: 8 December 2006

CaseChat Overview and Summary

The applicant, Holt, sought compensation from Comcare for injuries sustained in the course of employment. Holt claimed that Comcare should reimburse him for the reasonable costs of attending a Buddhist meditation retreat at the Chenrezig Institute. Comcare had accepted liability for the condition that led to Holt's request for attendance at the retreat, but had refused to pay the costs associated with it. This matter was brought before the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the costs of attending the Buddhist meditation retreat constituted "treatment that was reasonable in the circumstances" as required by section 16(1) of the Safety Rehabilitation and Compensation Act 1988. This involved determining whether the evidentiary onus lay with the applicant or the respondent to prove the reasonableness of the costs. The case of Jorgensen and the Commonwealth and Comcare v Rope were cited as relevant precedents.

The Tribunal held that the onus of proof lay with Comcare, as the respondent, to establish that the costs were not reasonable. The Tribunal found that the costs were reasonable, given the nature of the treatment and its relevance to the condition for which Comcare had accepted liability. The Tribunal also considered the need to provide treatment that was reasonably appropriate in the circumstances, as established in the precedent cases. Accordingly, the Tribunal set aside the decision of Comcare and ordered them to pay the reasonable costs of the applicant's attendance at the Buddhist meditation retreat, as well as the costs of the proceedings.

The Tribunal further ordered that Comcare pay any costs incidental to the proceedings, thereby providing full relief to the applicant in accordance with the statutory provisions and the established legal principles.

Orders

Orders of the court

In accordance with s 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal:

1. Sets aside the decision of the respondent dated 22 August 2005;

2. In substitution decides that the respondent is liable to pay the reasonable costs of the applicant’s attendance at a Buddhist meditation retreat at the Chenrezig Institute;

3. Orders the respondent to pay the applicant’s costs, if any, of and incidental to the proceedings.

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		ASHLEY CRAIG HOLT