Mikic and Comcare - [2002] AATA 125

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
  Respondent
DECISION

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.

..............................................
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to the second (the number of hours per week Mrs Mikic was deemed able to work) the application for review has been withdrawn.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…

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 Mikic and Comcare

Details

AGLC: Mikic and Comcare [2002] AATA 125
Case: [2002] AATA 125
Decision Date: 25 January 2002

CaseChat Overview and Summary

Comcare appealed against a decision of the Administrative Appeals Tribunal (AAT) that found it had to reimburse the respondent for massage therapy treatment she received. The primary issue for the court was whether it was reasonable for the respondent to seek massage therapy treatment, given the circumstances. The court also considered the factors relevant to determining whether the treatment was reasonable and necessary. The Federal Court found that the AAT had erred in its decision by failing to consider the appropriate factors in determining whether the treatment was reasonable and necessary. The court held that the AAT should have considered the nature of the injury, the stage of recovery, the availability of other treatments, and the cost of the treatment. The court also found that the AAT had not adequately considered the evidence provided by the respondent's treating practitioner. As a result, the court set aside the decision of the AAT and remitted the matter back for reconsideration.

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