Rachel Scuderi and Comcare - [2015] AATA 921

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/5659;

General Division ) 2014/4355-4357

Re: Rachel Scuderi
Applicant

And: Comcare
Respondent
ADDENDUM TO REASONS FOR DECISION
Ms G Ettinger, Senior Member
25 January 2016

The Tribunal published its decision in Re Scuderi v Comcare [2015] AATA 921 on 30 November 2015. Recently attention was drawn to the decision in respect of Applications 2014/4355 and 2014/4356, which originally read as follows:
Applications 2014/4355 & 2014/4356 - The Tribunal affirms the reviewable decision and finds that Mrs Scuderi was capable of undertaking the rehabilitation program dated 25 November 2013, with the modification dated 10 June 2014 which added Teacher’s Assistant to qualify Mrs Scuderi as a School Support Officer. The Tribunal finds that the amended rehabilitation program was appropriate having regard to the factors set out in section 37(3) of the SRC Act.
The reviewable decision in the abovementioned Applications provided for a rehabilitation program for Mrs Scuderi which was signed on 25 November 2013, by her, her treating general practitioner, Dr Pendel, her rehabilitation provider, Ms Samarawickrama, and her manager, Ms Margetts. It included bookkeeper, accounts clerk, payroll clerk, customer service officer, client services officer, insurance officer, business analyst and financial assistant as vocational goals.
The issues in the abovenamed Applications were whether the Applicant was capable of undertaking the rehabilitation program provided for her; and whether the rehabilitation program was appropriate having regard to the factors set out in section 37(3) of the Safety, Rehabilitation and Compensation Act1988 (the SRC Act).
The rehabilitation program did not include ‘Teacher’s Assistant’, which was included on the later amended rehabilitation program dated 10 June 2014. In fact the officer making the reviewable decision gave reasons for not including a position regarding school learning/support officer in the decision of 16 April 2014. At the time of the hearing in this matter, the amended rehabilitation program had not been reviewed, and was not before the Tribunal.
The Tribunal acknowledges that the decision made by this Tribunal on 30 November 2015 in regard to the abovenamed Applications was in error, and that it did not make the correct or preferable decision as required by section 43 of the Administrative Appeals Tribunal Act 1975 with regard to the reviewable decision dated 16 April 2014.
In its Reasons for Decision, the Tribunal discussed Mrs Scuderi’s employment situation at paragraphs [67]–[87]. At paragraph [77] the Tribunal noted that Ms Smales, a physiotherapist, agreed with the other health professionals and medical practitioners who gave evidence at the hearing, that Mrs Scuderi could hold down a clerical or related office job provided lifting restrictions were observed, and she was permitted to move around, and not be seated for long periods.
The Tribunal accepted Ms Ogle’s opinion that without formal tertiary qualifications, and having been out of the financial services area of work for some five years, Mrs Scuderi would find it difficult to find an empathetic employer to give her a job and recognise her restrictions.
The Tribunal also…

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.

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Details

Case: [2015] AATA 921
Decision Date: 30 November 2015

CaseChat Overview and Summary

Rachel Scuderi, the applicant, sought review of several decisions made by Comcare, the respondent, in relation to her workers' compensation claim. The crux of the dispute involved her entitlement to domestic and attendant care services, specifically grocery shopping delivery, toenail cutting, and leg waxing. Additionally, the applicant contested the appropriateness of the rehabilitation program designed for her. The case was heard and determined by the Administrative Appeals Tribunal (AAT). The primary legal issues before the AAT were whether the applicant was capable of undertaking the rehabilitation program provided for her and whether the rehabilitation program was appropriate considering the factors outlined in section 37(3) of the Safety, Rehabilitation and Compensation Act 1988.

The AAT affirmed the reviewable decision regarding the applicant's capability to undertake the rehabilitation program, noting that she had successfully retrained as a School Support Officer and was working 20 hours a week. The Tribunal found the amended rehabilitation program, which included the new qualification, to be appropriate. However, the AAT varied the decision concerning the provision of domestic and attendant care services. It found that while the applicant could manage her shopping and toenail cutting with some assistance, leg waxing was more challenging due to her physical limitations. Consequently, the AAT approved a one-off payment of approximately $1,080 for laser treatment to address the issue of leg waxing.

The Tribunal upheld the decision to deny the applicant's claim for household services and attendant care services, except for the one-off laser treatment for leg waxing. The AAT emphasised the applicant's ability to balance work and family life, albeit with some fatigue from her job. The Tribunal also acknowledged her lifting restrictions but found that her current arrangements for shopping and toenail cutting were reasonable. In summary, the Tribunal affirmed the respondent's decision in most aspects but made a specific variation to allow for the laser treatment.

The final orders of the Tribunal were that the reviewable decision under Application 2013/5659 was affirmed, while the decision under Application 2014/4357 was varied to permit the one-off laser treatment for leg waxing. The decisions under Applications 2014/4355 and 2014/4356 were affirmed, finding the rehabilitation program appropriate. Costs were to be awarded in relation to Application 2014/4357 as agreed or taxed.

Orders

Orders of the court

Application 2013/5659 - The Tribunal affirms the decision under review.

Application 2014/4357 - The Tribunal varies the decision under review in which Comcare refused Mrs Scuderi’s claim for household and attendant care services, being toenail cutting, leg waxing and home delivery of groceries pursuant to section 29 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The Tribunal varies the decision in regard to leg waxing only, and finds that an amount $1,080 for one off laser treatment should be approved. The Tribunal affirms the other parts of the decision of Comcare.

Applications 2014/4355 & 2014/4356 - The Tribunal affirms the reviewable decision and finds that Mrs Scuderi was capable of undertaking the rehabilitation program dated 25 November 2013, with the modification dated 10 June 2014 which added Teacher’s Assistant to qualify Mrs Scuderi as a School Support Officer. The Tribunal finds that the amended rehabilitation program was appropriate having regard to the factors set out in section 37(3) of the SRC Act.

Costs can be awarded pursuant to section 68(7) of the SRC Act as agreed or taxed in relation to Application 2014/4357 only.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am satisfied from the evidence noted above that Mrs Scuderi is working 20 hours a week, and is balancing the demands of work and a young family. She says that work makes her tired. I am however satisfied that she can manage her shopping either with the assistance of her children, on-line assistance, payment by her for delivery, or shopping more often for less items at a time. I affirm the reviewable decision in regard to assistance with shopping. The Tribunal’s conclusions I am satisfied from the evidence discussed above that Mrs Scuderi can achieve her toe nail cutting satisfactorily, albeit slowly, with the assistance of the approved long handled toe nail cutters, and spacers suggested by Ms Ogle. I am satisfied from the evidence discussed above that leg waxing is more difficult for Mrs Scuderi to achieve because of the forward flexion involved, and find that the suggestion that a one-off payment of approximately $1,080 for laser treatment should be approved. The decision of the Respondent is accordingly varied in that regard, but otherwise affirmed. I am satisfied from the evidence discussed above that as Mrs Scuderi works 20 hours a week, and can arrange to shop at intervals and have her children assist, she should be able to manage. I am mindful of her lifting restrictions, and note that if it is her preference to do a ‘big shop’, she may have to adapt and shop at suitable intervals or pay for the delivery herself. The decision of the Respondent in regard to assistance with shopping is affirmed.Applications 2014/4355 & 2014/4356 Whether the Applicant was capable of undertaking the rehabilitation program provided for her; Whether the rehabilitation program was appropriate having regard to the factors set out in section 37(3) of the Act. On 19 August 2014 Mrs Scuderi made a claim for review of the Respondent’s decision of 12 June 2014 for household services (grocery shopping delivery), attendant care services (toe nail cutting and leg waxing), and in relation to undertaking the rehabilitation program which had been developed for her. I have dealt with the claims for household and attendant services in the paragraphs above. In this section of the Reasons for Decision I deal only with the issue of the rehabilitation program to consider whether Mrs Scuderi was capable of undertaking what she had been asked to do, and whether it was appropriate having regard to the factors set out in section 37(3) of the Act. I have noted that Ms Videsha Samarwickrama, Rehabilitation Provider, in consultation with the Applicant’s treating General Practitioner Dr Pendel, and Rehabilitation Case Manager Ms Louise Margetts, developed a rehabilitation program dated 20 August 2013. Following a review, it was signed by the Applicant, Ms Samarawickrama and Dr Pendel on 25 November 2013. The program was a re-deployment program. The final goal of the program, following job seeking activities, was to have the Applicant return to work with a new employer in a new job in one of the following vocations: bookkeeper, accounts clerk, payroll clerk, customer service officer, client services officer, insurance officer, business analyst or financial assistant. The program initially did not include School Support Officer. Accordingly, the Applicant sought positions in the financial services industry with the assistance of Konnekt to identify positions. She told me that she had been unsuccessful after approximately 400 attempts at securing a position. In that connection I had before me her Resumé and the job log.

Ratio Decidendi

Legal Principle Established

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