Steins and Comcare (Compensation) [2019] AATA 803 (6 May 2019)
Division:GENERAL DIVISION
File Number(s): 2017/2979
Re:Erica Steins
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mark Hyman, Member
Date:06 May 2019
Place:Canberra
The decision under review is set aside and in substitution the tribunal decides that
(a)Ms Steins reasonably requires a replacement recliner chair; and
(b)Comcare is to pay $1114.00 in compensation as the cost of replacing the chair.
........................................................................
Mark Hyman, Member
Catchwords
COMPENSATION – rehabilitation – chronic migraines, neck strain, major depressive disorder and sleep apnoea - provision of a recliner chair – whether the original employer remains the rehabilitation authority – whether applicant is undertaking, has completed or has been assessed as not capable of undertaking a rehabilitation program – home assessments – whether a recliner chair is an aid or appliance – medical evidence - whether the chair is reasonably required – amount of compensation to be paid – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975, s 37
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 16, 35, 36, 37, 38, 39, 40, 41, 41A, 41B, 41C, 41DSafety, Rehabilitation and Compensation Regulations 2019
Cases
Brennan v Comcare (1994) 122 ALR 615
Comcare v Heffernan [2013] FCA 299
Comcare v Levitt (1995) ALR 645
Georges and Telstra Corporation [2009] AATA 731
Heffernan and Comcare [2015] AATA 655
IW and the City of Perth (1997) 191 CLR 1
Johnston v Commonwealth [1982] HCA 54
Military Rehabilitation and Compensation Commission v Pollanen [2005] FMCA 957
Pollanen and Comcare [2004] AATA 134
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Von Stieglitz and Comcare [2010] AATA 263
Whittaker v Comcare [1998] FCA 1099Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328
Secondary Materials
Concise Oxford Dictionary, 6th ed, 1976
Macquarie Concise Dictionary, 3rd ed, 1998
REASONS FOR DECISION
Mark Hyman, Member
06 May 2019
This decision is about whether Comcare, the respondent, should pay the cost of a replacement for a recliner chair for Ms Erica Steins, the applicant. Ms Steins was injured in a motor vehicle accident in 1992, injuring her neck, while on approved study leave from the Department of Administrative Services. She lodged a claim for workers compensation and Comcare accepted liability. In 1994 Ms Steins submitted a further claim for headaches attributable to the motor vehicle accident; Comcare denied liability and affirmed that decision on reconsideration, but Ms Steins was successful in an appeal to this tribunal, which set aside Comcare’s decision and found Comcare liable in respect of the headaches. Ms Steins left the Commonwealth’s employ in January 2000.
Following an assessment of Ms Steins and her home in 2004, Comcare agreed to provide her with various home help and support services, including a reclining chair. In 2010 Comcare accepted liability for major depressive disorder as a secondary condition to Ms Steins’s chronic headaches and neck pain. On 22 September 2016, following a home assessment report in 2013, Ms Steins…
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- AGLC
- Steins and Comcare (Compensation) [2019] AATA 803
- Case
- [2019] AATA 803
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether Comcare, as the relevant authority, was liable to provide a recliner chair to Ms Steins under section 39 of the SRC Act. This involved determining whether Ms Steins met the preconditions for compensation under that section, specifically whether she was undertaking, had completed, or had been assessed as incapable of undertaking a rehabilitation program. Additionally, the court had to consider whether a recliner chair constituted an "aid or appliance" for the purposes of section 39 and whether it was reasonably required by Ms Steins given her compensable conditions.
The court reasoned that section 39 of the SRC Act provides for the payment of compensation for aids or appliances reasonably required by an employee, provided certain conditions are met. These conditions include the employee suffering an injury resulting in an impairment and being undertaking, having completed, or being assessed as incapable of undertaking a rehabilitation program. The court noted that section 36 of the SRC Act outlines the process for assessing an employee's capability of undertaking a rehabilitation program. The court considered the medical evidence, including reports from Dr Seneviratne, which indicated that Ms Steins had chronic daily headaches and a chronic pain condition, and that she was not fit for work and incapable of undertaking rehabilitation. However, Dr Seneviratne had expressed doubt as to whether a recliner chair would provide significant benefit and therefore was not reasonably required.
The court set aside the decision under review, indicating that Comcare's determination was not to be affirmed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The provision of aids and appliances in respect of an employee’s compensable condition is provided for in section 39 of the SRC Act. Subsection 39(1) reads as follows:39 Compensation payable in respect of certain alterations etc. (1) Where: (a) an employee suffers an injury resulting in an impairment; and(b) the employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program;the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee, of:(c) any alteration of the employee’s place of residence or place of work; (d) any modifications of a vehicle or article used by the employee; or(e) any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances;being alterations, modifications or aids or appliances reasonably required by the employee, having regard to the nature of the employee’s impairment and, where appropriate, the requirements of the rehabilitation program.The “relevant authority” identified in the subsection as liable to pay compensation is defined in subsection 4(1) as Comcare or a licensed corporation. The following subsections deal with how the amount of compensation should be determined and paid, where compensation is payable. The relevant parts of subsection 39(2) read as follows:(2) The matters to which the relevant authority shall have regard in determining the amount of compensation payable in a particular case under subsection (1) include such of the following matters as are relevant in that case: (a) the likely period during which the alteration, modification, aid or appliance will be required; (b) any difficulties faced by the employee in gaining access to, or enjoying reasonable freedom of movement in, his or her place of residence or work; …(e) whether arrangements can be made for hiring the relevant aid or appliance;… Section 39 is found in Part III of the SRC Act, entitled “Rehabilitation”. In that Part, section 36 provides for “the rehabilitation authority” to arrange for the assessment of the employee’s capability of undertaking a rehabilitation program, either at the authority’s discretion or at the request of the employee. The section provides details of how such an assessment should be undertaken, and by whom. The presently relevant subsections read as follows:36 Assessment of capability of undertaking rehabilitation program (1) Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program. (2) An assessment shall be made by: (a) a legally qualified medical practitioner nominated by the rehabilitation authority; (b) a suitably qualified person (other than a medical practitioner) nominated by the rehabilitation authority; or (c) a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority. (3) The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment. … (8) Where an examination is carried out, the person or persons who carried out the examination shall give to the rehabilitation authority a written assessment of the employee’s capability of undertaking a rehabilitation program, specifying, where appropriate, the kind of program which he or she is capable of undertaking and containing any other information relating to the provision of a rehabilitation program for the employee that the rehabilitation authority may require.