McKernan and Comcare - [2004] AATA 1229

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1229
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/565, Q2003/804

GENERAL ADMINISTRATIVE DIVISION )

Re ROBERT McKERNAN

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Ms M J Carstairs, Member
Date23 November 2004
Place Brisbane

Decision
Q2003/565: The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s compensation payments are to be assessed under s19 of the Safety, Rehabilitation and Compensation Act 1988.

1.      Q2003/804: The Tribunal sets aside the decision under review and substitutes the decision that the applicant is entitled to be paid fifty percent of the cost of gymnasium membership as medical treatment under s16 of the Safety, Rehabilitation and Compensation Act 1988 for the period of twelve months from the date of the Tribunal’s decision.

.

The respondent is liable under s67(8) of the Act to pay the applicants’ costs of the applications.

.           ......[Sgd]......
M J Carstairs
  Member

CATCHWORDS
COMPENSATION – Commonwealth employees – temporal connection between incapacity and retirement –receipt of superannuation – rate of weekly compensation for incapacity for work
COMPENSATION – medical treatment- gymnasium fees
Safety, Rehabilitation and Compensation Act 1988 ss4, 8, 16, 19, 20, 21
Hammerton and Comcare (1995) 21 AAR 204
Re Scott and Commissioner for Superannuation (1986) 9 ALD 491
Re Sullivan and Comcare (1998) AATA 907
Re Keen and Telstra Corporation Ltd [2004] AATA 849
Re Longergan and Repatriation Commission [2004] AATA 659
O’Shea and Comcare (1993) 18 AAR 430
Aboushadi and Telstra Corporation [2004] AATA 35
Telstra Corporation v Aboushadi [2004] FCA 811
Comcare v Watson (1997) 73 FCR 273
REASONS FOR DECISION

23 November 2004 Ms MJ Carstairs, Member

2. This is an application by Robert McKernan (the applicant) for review of two reviewable decisions made by delegates of Comcare (the respondent). The first reviewable decision, dated 4 June 2003, in substance affirmed an earlier determination that the applicant’s entitlements to compensation must be calculated under the provisions of s21 of the Safety Rehabilitation and Compensation Act 1988 (the Act), while varying the amounts adopted as normal weekly earnings for purposes of calculating the compensation to be paid to the applicant. The second reviewable decision, dated 11 September 2003, affirmed an earlier determination that the applicant was not entitled to have the cost of a gymnasium program paid as medical treatment under s16 of the Act.
3. At the hearing the applicant was represented by Mr A Harding of counsel instructed by Gilshenan and Luton solicitors. The respondent was represented by Mr Dubé, instructed by the Australian Government Solicitor.
4. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975, numbered T1–T35 for application Q2003/565 (the first reviewable decision) and T1-T36 for application Q2003/804 (the second reviewable decision) as well as exhibits A1-A7 for the applicant and R1-R4 for the respondent.
BACKGROUND
5. The parties prepared a statement of agreed facts in regard to the first reviewable decision (exhibit A1). The Tribunal accepts…

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 McKernan and Comcare

Details

AGLC: McKernan and Comcare [2004] AATA 1229
Case: [2004] AATA 1229
Decision Date: 23 November 2004

CaseChat Overview and Summary

McKernan sought review of decisions made by the respondent regarding compensation entitlements. The case involved the interpretation of the Safety, Rehabilitation and Compensation Act 1988 in relation to the assessment of weekly compensation payments for incapacity and the reimbursement of gymnasium fees as part of medical treatment. The Administrative Appeals Tribunal was tasked with determining whether the decisions made by the respondent were lawful and correct.

The primary legal issues addressed by the Tribunal were whether McKernan's retirement affected the assessment of his compensation payments and whether the costs associated with gymnasium fees constituted reimbursable medical treatment. McKernan argued that his retirement should not impact the rate of compensation for incapacity for work, while the respondent contended that retirement could affect the calculation. Additionally, McKernan sought reimbursement for gymnasium fees, which the respondent had previously denied.

In its reasoning, the Tribunal found that McKernan's retirement did not sever the temporal link between his incapacity and his ability to work, thus his compensation should be assessed under section 19 of the Act. The Tribunal also held that the costs of gymnasium fees could be considered medical treatment under section 16 of the Act, given their relevance to McKernan's rehabilitation and recovery. Consequently, the Tribunal set aside the respondent's decisions and substituted them with new decisions favourable to McKernan. The Tribunal ordered the respondent to pay McKernan fifty percent of the cost of gymnasium membership for a period of twelve months and to reassess his compensation payments in line with the Tribunal's determination.

Orders

Orders of the court

Q2003/565: The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s compensation payments are to be assessed under s19 of the Safety, Rehabilitation and Compensation Act 1988.

1. Q2003/804: The Tribunal sets aside the decision under review and substitutes the decision that the applicant is entitled to be paid fifty percent of the cost of gymnasium membership as medical treatment under s16 of the Safety, Rehabilitation and Compensation Act 1988 for the period of twelve months from the date of the Tribunal’s decision.

The respondent is liable under s67(8) of the Act to pay the applicants’ costs of the applications.

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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