Pisani and Comcare - [2004] AATA 1294

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1294
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/969

GENERAL ADMINISTRATIVE DIVISION )

Re VICTOR PISANI

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Ms R Hunt, Senior Member
Date6 December 2004
PlaceSydney

Decision The decision under review is affirmed
….[sgd] Ms R Hunt….
Senior Member

CATCHWORDS
COMPENSATION - injury – cease liability - reactive depression - medical treatment expenses – same fact issues - previous fact finding by Tribunal - reactive depression in remission – no change in circumstances claimed – claim for medical expenses rejected - decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 16
Administrative Appeals Tribunal Act 1975 (Cth) s 33
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Comcare v Grimes (1994) 33 ALD 548
Re Matsuko and Australian Postal Corporation (1995) 21 AAR 9
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
REASONS FOR DECISION

6 December 2004 Ms R Hunt, Senior Member

SUMMARY

1. Mr Pisani seeks review of Comcare’s determination dated 28 January 2003 to refuse to reimburse him medical expenses incurred between 17 March 2003 and 6 May 2004. Comcare decided on 27 July 2004 to affirm a delegate’s determination of 26 May 2004. That determination was that pharmaceutical expenses claimed for the period 17 March 2003 and 6 May 2004 were not payable as medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988. Mr Pisani seeks review of that reviewable decision.
DISCUSSION
2.      A previously constituted Tribunal (N2003/685), on 6 May 2004, set aside an earlier determination of a delegate that Comcare was no longer liable to pay compensation for Mr Pisani’s reactive depression.
3.      The Tribunal Member set aside the decision on the basis that Comcare could not “cease liability” in general to bar future claims. See paragraph 39 of the Tribunal’s reasons for decision and the Oudyn case cited above. In Oudyn, Cooper J observed that a decision maker cannot purport to determine on a reconsideration of a determination under section 14 that a liability, which correctly and effectively attached in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section was thereafter excluded in respect of the injury.
4.      However, in the reasons for decision, the Tribunal Member also made a fact finding. Member Webb found, on the balance of probabilities, and based on certain medical opinions and reports, that Mr Pisani’s reactive depression had gone into remission and that his current symptoms were not attributable to his work-related injury. See paragraph 37 of reasons for decision.
5.      Member Webb also noted that there were no claims for specific payments of compensation before the Tribunal and that Comcare must address any such claim if and when it arose. See paragraph 40 of reasons for decision. Mr Pisani has now made such a claim and it is the matter before the present Tribunal.
EVIDENCE and FINDINGS
6.      Mr…

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 Pisani and Comcare

Details

AGLC: Pisani and Comcare [2004] AATA 1294
Case: [2004] AATA 1294
Decision Date: 6 December 2004

CaseChat Overview and Summary

The case of Pisani and Comcare involved a claim for compensation by Mr. Pisani, who sought reimbursement for medical treatment expenses related to reactive depression. The dispute was adjudicated in the Administrative Appeals Tribunal, with Comcare opposing the claim. Mr. Pisani argued that his reactive depression was still present, despite being in remission, and thus he should be entitled to compensation. Comcare countered that there was no change in circumstances that warranted additional compensation, especially since the Tribunal had previously found the reactive depression to be a consequence of the injury.

The legal issues at the heart of the case revolved around the interpretation of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and the Administrative Appeals Tribunal Act 1975 (Cth), specifically concerning the cessation of liability for compensation and the criteria for ongoing medical expenses. The primary question was whether the remission of symptoms constituted a change in circumstances that justified a new claim for medical expenses. The Tribunal had to balance the previous fact findings with the current state of Mr. Pisani's health and whether his claim was substantiated.

In affirming the decision to reject the claim, the Tribunal reasoned that there had been no new facts presented to suggest a change in Mr. Pisani's circumstances. It noted that the previous finding of reactive depression did not automatically entitle him to ongoing compensation for medical expenses. The Tribunal emphasised that the cessation of liability provisions under the Safety, Rehabilitation and Compensation Act 1988 (Cth) meant that once certain facts were established, they could not be re-litigated unless there was a significant change in circumstances. Given that Mr. Pisani's condition was in remission and no new facts were presented, the Tribunal concluded that the decision to deny the claim was correct. The appeal was dismissed, and the original decision was affirmed.

Orders

Orders of the court

The decision under review is affirmed

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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