DECISION AND REASONS FOR DECISION [2002] AATA 125
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2001/31
GENERAL ADMINISTRATIVE DIVISION ) No A2001/291
Re BOJANA MIKIC
Applicant
And COMCARE
RespondentDECISION
Tribunal G A Mowbray
Date25 January 2002
PlaceCanberra
Decision The Tribunal: 1. Varies the decision under review in matter A2001/31, being Comcare's decision of 12 January 2001, and decides the Respondent is liable to pay the cost of massage therapy provided as directed by the Applicant's treating medical practitioner from 30 November 2000 and ongoing. 2. Sets aside the decision under review in matter A2001/291, being Comcare's decision of 6 July 2001, and in substitution therefor decides the Respondent is liable to pay the cost of massage therapy provided as directed by the Applicant's treating medical practitioner from 30 November 2000 and ongoing. 3. Orders the Respondent to pay the Applicant's costs in both these matters as agreed or taxed.
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Member
CATCHWORDS
COMPENSATION - massage therapy – whether reasonable to obtain treatment in the circumstances – factors for consideration
Comcare v Watson (1997) 73 FCR 273; 24 AAR 516; 46 ALD 481
Re Jorgensen and Commonwealth (1990) 23 ALD 321; 11 AAR 543
Re Chowdhary and Comcare (AAT 13003, 22 June 1998)
Re Popovic and Comcare [2000] AATA 264; (2000) 64 ALD 171
Re Sait and Comcare [1999] AATA 984
Re Richards and Australian Postal Corporation [2001] AATA 367
Re Kentish and Telstra Corporation Ltd [1999] AATA 661
Re King and Comcare (AAT 13350, 5 October 1998)
Re Fox and Department of Defence (1995) 22 AAR 402; 40 ALD 614
Department of Defence v Fox (1997) 24 AAR 171
REASONS FOR DECISION
27 February 2002 G A Mowbray
History of the Application
On 18 September 2000 Comcare (the Respondent) made a determination in relation to the compensation claim of Mrs Bojana Mikic (the Applicant), stating that liability would no longer be accepted for massage treatment from 30 November 2000. On 6 November 2000 Mrs Mikic requested a reconsideration and on 12 January 2001 Comcare affirmed this determination.
On 15 January 2001 an application for review was made to the Tribunal (matter A2001/31). There were in fact two distinct issues decided in the reviewable decision, but in relation to the second (the number of hours per week Mrs Mikic was deemed able to work) the application for review has been withdrawn.
On 25 June 2001 Comcare approved a maximum of one session of massage treatment per week up to and including 30 September 2001. However, on 6 July Comcare revoked this approval after a reconsideration of its own motion. As a result Mrs Mikic made a second application for review to the Tribunal on 13 July 2001 (matter A2001/291).
The hearing for both these matters was held on 24 and 25 January 2002. At the end of the hearing oral reasons for decision were given, varying the decision under review in matter A2001/31 and setting aside the decision under review in matter A2001/291. On 29 January 2002…
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- Mikic and Comcare [2002] AATA 125
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CaseChat Overview and Summary
The court noted that the AAT's approach to determining whether the treatment was reasonable and necessary was flawed. The court held that the AAT should have considered the evidence provided by the respondent's treating practitioner and given it appropriate weight. The court also found that the AAT had not adequately considered the nature of the injury and the stage of recovery. The court held that these were relevant factors to consider when determining whether the treatment was reasonable and necessary. The court held that the AAT should have considered the availability of other treatments and the cost of the treatment. The court found that the AAT had not adequately considered these factors and that this was a significant error in its decision-making process. The court held that the AAT's failure to consider these factors resulted in an error of law.
Orders
Orders of the court
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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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