Howard and Comcare - [2003] AATA 1316

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1316
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/400

GENERAL ADMINISTRATIVE DIVISION
)

Re NEIL HOWARD

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr O Rinaudo, Member
Date22 December 2003
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
....................(Sgd).....................
O Rinaudo
Member

CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – reimbursement of home gym expenses – whether applicant entitled to have expenses reimbursed
Safety, Rehabilitation and Compensation Act 1988, s 16 and s 39
Re Collins and Comcare (AAT 10452, 22 September 1995)
Thiele v The Commonwealth (1990) 22 FCR 342
REASONS FOR DECISION

22 December 2003 Mr O Rinaudo, Member

Decision Under Review
1.      The applicant seeks review of the decision made by the respondent to not reimburse him for the cost of a home gym which the applicant purchased from Amart All Sports on 5 September 2002 at a cost of $1,299. The total cost of $1,419 included delivery charge.
Issue Before the Tribunal
2. The issue for the Tribunal is to decide whether the applicant is entitled to receive reimbursement for the cost of the home gym under section 16 or section 39 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
3.      On 20 September 1995 (T8), the respondent accepted liability for the applicant’s undated claim (T5) for musculo-ligametous back pain with a deemed date of injury being 10 October 1988. The applicant suffered the injury to his back whilst “practis[ing] parachute jumping ex Swift Eagle”.
Evidence
4.      The applicant gave evidence at the hearing although this consisted mainly of cross-examination by Counsel for the respondent. Evidence was also obtained from Dr Winstanley and Dr Morris, both by telephone. In addition, the following exhibits were tendered:
Exhibit 1        “T” Documents
Exhibit 2        Report of Dr Peter Winstanley dated 22 May 2002
Exhibit 3        Report of Dr Peter Winstanley dated 12 August 2003
Exhibit 4        Applicant’s Statement dated 30 July 2003
Exhibit 5        Report of Dr John Morris dated 2 October 2003

5.      In cross-examination the applicant confirmed that there was a fitness centre approximately 15 minutes drive from his residence. He stated that he would be unable to get a lift to this fitness centre. He stated that he was not now, nor had he been, in a relationship with a female. Accordingly, she was not able to give him a lift to the fitness centre.
6.      The applicant acknowledged that there was a pool close by.
7.      The applicant stated that because of his schizophrenia and post traumatic stress disorder he does not want to go to a public gym. He stated he considered that he knew he would have a problem with his mental health if he had to go to a public gym.
8.      The applicant acknowledged that he had been assessed by Craig Lam, Physiotherapist (T28/73) and that Mr Lam had developed a program that was intended to increase the applicant’s range of movement, strength, flexibility and control of pain.…

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 Howard and Comcare

Details

AGLC: Howard and Comcare [2003] AATA 1316
Case: [2003] AATA 1316
Decision Date: 22 December 2003

CaseChat Overview and Summary

In the matter of Howard and Comcare, the applicant sought reimbursement of expenses incurred for the installation of a home gym as part of their rehabilitation following a work-related injury. The matter was heard and determined by the Administrative Appeals Tribunal (AAT). The Tribunal was tasked with deciding whether the applicant was entitled to have these expenses reimbursed by Comcare, the respondent.

The primary legal issue before the Tribunal was whether the applicant's home gym expenses were reasonably and necessarily incurred as part of their rehabilitation. The Tribunal considered relevant provisions of the Safety, Rehabilitation and Compensation Act 1988, including sections 16 and 39, which pertain to the assessment of rehabilitation needs and the payment of expenses. The Tribunal also examined relevant case law, including Re Collins and Comcare and Thiele v The Commonwealth, to ascertain the principles applicable to determining the reasonableness and necessity of rehabilitation expenses.

In reaching its decision, the Tribunal noted that the installation of a home gym was part of the applicant's rehabilitation plan, which was approved by Comcare. However, the Tribunal found that the applicant had not provided sufficient evidence to demonstrate that the expenses were reasonably and necessarily incurred as part of their rehabilitation. The Tribunal concluded that the applicant had not met the burden of proof required to establish entitlement to the reimbursement of the home gym expenses. Accordingly, the Tribunal affirmed the decision under review, upholding the respondent's decision to deny reimbursement.

The Tribunal's decision was based on the applicant's failure to provide adequate evidence to satisfy the criteria for reimbursement under the relevant legislation and case law. The Tribunal's findings and conclusions were consistent with the principles established in previous cases, and the decision was affirmed without any additional orders.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.