Steins and Comcare (Compensation)

Case [2019] AATA 803

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, 41D

Safety, 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 1099

Wilson 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

  1. 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.

  2. 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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Details
AGLC
Steins and Comcare (Compensation) [2019] AATA 803
Case
[2019] AATA 803
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Ms Steins for a recliner chair under section 39 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). Comcare denied the application, a decision that was affirmed upon reconsideration. Ms Steins sought a review of Comcare's decision. The accepted conditions for which Ms Steins received compensation included chronic migraines, neck strain, major depressive disorder, and sleep apnoea, stemming from a motor vehicle accident in 1992.

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

On 22 September 2016 Ms Steins applied for a replacement chair under section 39 of the SRC Act. On 9 December 2016 (T285) Comcare denied the application. On 27 January 2017 Ms Steins sought reconsideration (T288) and on 28 March 2017 Comcare affirmed the determination of 9 December 2016 (T295). The basis for the denial of the claim was a report obtained from Dr Seneviratne (T284) and also, in the reconsideration decision, an assertion that a recliner chair was doubtfully an “aid or appliance” under section 39 of the SRC Act.The medical evidence There is an abundance of medical evidence relating to Ms Steins’s accepted conditions. The origin of her accepted condition was neck strain incurred in a motor vehicle accident in 1992 (T8); subsequently it was accepted that the claim extended to migraine headaches arising from or aggravated by the motor vehicle accident (T19, T27, T30). A number of years later Ms Steins made a claim for permanent impairment and non-economic loss. Comcare decided, in a determination (T126, dated 28 April 2000) and, following a request for reconsideration, a reconsideration determination (T129, dated 8 July 2000), that Ms Steins did have a permanent impairment and a level of non-economic loss. In the second of those decisions the level of permanent impairment was set at 55%, and a significant component of that impairment (25%) arose from chronic depression. In a later determination, dated 6 August 2010 (T214), Comcare extended its liability to include a secondary condition of major depressive disorder. On 23 November 2012 Comcare further extended liability to accept sleep apnoea (T238). The most recent assessments of Ms Steins’s present condition are the report by Dr Seneviratne that proved so influential in the decision under review (T284), and a further report by him tendered at the hearing (Exhibit R1). Dr Seneviratne also appeared at the hearing and was cross-examined. The first briefing letter to Dr Seneviratne (T284.1) asked him to conduct a general examination and assessment of Ms Steins, covering diagnosis, prognosis, causation, treatment, and capacity for work and rehabilitation. Comcare asked him to address 16 specific questions. Dr Seneviratne set out the history of Ms Steins’s condition, identifying her major physical condition as “chronic daily headaches” and noting the existence of a depressive disorder on which he refrained from commenting. He noted that the prognosis was poor and that people suffer chronic migraines for years after the initial trigger has been removed. She had exhausted most of the available treatment options. She was not fit for any work and she was incapable of undertaking rehabilitation. One of the specific questions posed, under the heading “Treatment”, related to whether Ms Steins reasonably required a recliner chair due to her compensable condition. Dr Seneviratne’s response was “no”. The briefing letter sent seeking Dr Seneviratne’s supplementary report asked him to explain how and why he reached that conclusion. The report he prepared in response noted that Ms Steins had “chronic daily headaches and a chronic pain condition” and stated that as Ms Steins had trialled so many pain treatments known to be beneficial in cases of chronic daily headaches (multidisciplinary pain programs, Botox injections, specific anti-migraine treatments), with little result, he was not confident that a recliner chair would provide a significant benefit. He offered the opinion that “using a recliner chair is unlikely to improve her ongoing headaches or chronic daily headaches to a significant degree”.

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.