Kuchar and Comcare (Compensation)

This matter concerned an application for a stay of a decision by Comcare to cease funding massage therapy for the applicant, who suffers from chronic pain. The applicant sought to have Comcare continue to pay for her massage treatments pending the final determination of her substantive application for review of Comcare's decision. The proceedings were before A Poljak SM in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether to grant a stay of Comcare's decision under section 41(2) of the *Administrative Appeals Tribunal Act 1975* (Cth). This required the Tribunal to consider various factors, including the prospects of success of the substantive application, the potential hardship to the applicant if a stay was refused, and the consequences for Comcare if a stay was granted. The Tribunal was also required to consider whether the substantive application would be rendered nugatory without a stay.

In its reasoning, the Tribunal noted that while the applicant had some prospects of success in the substantive proceedings, given Comcare's acceptance of liability and past funding of the treatment, this was not the dominant factor. The Tribunal found that the applicant could self-fund the massage therapy until the final determination, thereby avoiding financial hardship. However, the Tribunal considered that requiring the applicant to self-fund and then seek reimbursement, or conversely, requiring Comcare to pay for treatment that might ultimately be deemed unreasonable, would create an undesirable situation for both parties. The Tribunal acknowledged that the cessation of massage therapy could exacerbate the applicant's symptoms.

Ultimately, the Tribunal refused the application for a stay. The Tribunal concluded that while the applicant might face some inconvenience and potential exacerbation of symptoms, the potential for financial hardship was not demonstrated, and the applicant had the capacity to self-fund the treatment. The Tribunal also considered that granting a stay would create an undesirable position for both parties if the substantive application were ultimately unsuccessful.