Stroud and Comcare - [2002] AATA 350

DECISION AND REASONS FOR DECISION [2002] AATA 350

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A00/357

GENERAL ADMINISTRATIVE DIVISION          )
           Re      JILLIAN STROUD
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Air Marshal I B Gration AO, AFC, RAAF (Rtd), Member Dr M.D. Miller AO, Member

Date15 May 2002
PlaceCanberra

Decision      1. The decision under review is set aside. In substitution the Tribunal varies the determination of 22 June 2000 to provide: (i) Mrs Stroud is entitled to compensation for incapacity for work under s 19 of the Act for all periods she did not work between 11 February 2000 and 23 July 2001. (ii) From 24 July 2001 to 21 December 2001 Mrs Stroud is entitled to compensation calculated under s 19 on the basis that she was able to earn the amounts she earned for the hours she worked as set out in exhibit A9. (iii) From 22 December 2001 Mrs Stroud's entitlement to compensation is to be calculated on the basis that she continued to be able to earn the amounts she would have earned if she had worked 10½ hours per week, unless she in fact worked more than that in any week, in which case her actual earnings are to be taken into account. (iv) The costs of Dr Borody and of the faecal infusion treatment and the cost of supplements prescribed by Dr Turtle are compensable under s 16 of the Act. 2. The Tribunal orders under s 67(8) of the Act that Mrs Stroud's costs of these proceedings be paid by Comcare.
  (Sgd) Joan Dwyer
  Senior Member
COMPENSATION – compensable clostridium difficile infection – whether it lasted beyond closed period – whether hepatitis also an injury under the Act – cause of ongoing symptoms after successful treatment by faecal infusion – whether irritable bowel syndrome and chronic fatigue syndrome compensable conditions as resulting from clostridium difficile and hepatitis
COST OF MEDICAL TREATMENT – whether treatment by faecal infusion and whether prescribed supplements are "treatment which it was reasonable . . . to obtain" – whether faecal infusion treatment experimental and controversial – decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14, 16(1), 19 and 62

REASONS FOR DECISION

15 May 2002 Mrs Joan Dwyer, Senior Member Air Marshal I B Gration AO, AFC, RAAF (Rtd), Member Dr M.D. Miller, Member

This was originally an application for review of a reviewable decision made under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") on 28 August 2000 (T38 pp67-74). That decision affirmed a determination made on 22 June 2000 (T24 pp39-42) rejecting Mrs Stroud's claim for compensation in respect of "Clostridium Difficile" ("CD"). The reviewable decision-maker accepted that Mrs Stroud suffered from CD, which is a bowel infection, and that it was contributed to, in a material degree, by her employment as a Preschool assistant at Charnwood Preschool. As part of her duties she was required to change dirty nappies and to perform other tasks in caring…

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 Stroud and Comcare

Details

AGLC: Stroud and Comcare [2002] AATA 350
Case: [2002] AATA 350
Decision Date: 15 May 2002

CaseChat Overview and Summary

This was an application for review of a decision made under the Safety, Rehabilitation and Compensation Act 1988. The applicant, Mrs Stroud, claimed that she suffered from Clostridium Difficile (CD), which is a bowel infection, that was contributed to, in a material degree, by her employment as a Preschool assistant at Charnwood Preschool. The primary issue was whether Mrs Stroud was entitled to compensation in respect of CD after 31 August 2000. The Tribunal found that Mrs Stroud was still suffering from CD after 31 August 2000 and that she continued to be in a recovery phase until 1 June 2001. The Tribunal also found that Mrs Stroud was suffering from irritable bowel syndrome (IBS) since 1 June 2001 and that it was contributed to in a material degree by the CD. The Tribunal found that the faecal infusion treatment recommended by Dr Borody was treatment which it was reasonable for Mrs Stroud to obtain. The Tribunal also found that the supplements which have been prescribed are treatment which it was reasonable for Mrs Stroud to obtain. The Tribunal found that, from 24 July 2001 to 21 December 2001, Mrs Stroud had the capacity to work the hours she did work and that from 22 December 2001 compensation is payable on the basis that she continued to be able to earn as if she had worked ten and a half hours per week or such increased hours as she may have worked. The Tribunal ordered that Mrs Stroud's costs of these proceedings be paid by Comcare.

Orders