Townley and Comcare-Defence - [2004] AATA 252

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 252
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/442

GENERAL ADMINISTRATIVE DIVISION )

Re Ronald Edward Townley

Applicant

And

Comcare-Defence

Respondent

DECISION

Tribunal SP Estcourt QC, Deputy President
Date11 March 2004
PlaceAdelaide

Decision The decision under review is set aside and the matter is remitted to the respondent with a direction that it was reasonable in the circumstances of the applicant’s case for him to obtain medical treatment in the form of a spa for home use.
S.P Estcourt QC
(Signed)
Deputy President

CATCHWORDS
COMPENSATION - Commonwealth employees - medical expenses - applicant sought payment in order to install a home spa - whether provision of a home spa is "medical treatment" - whether it is reasonable for the applicant to obtain a home spa or whether it is reasonably required by the applicant
Safety, Rehabilitation and Compensation Act 1988, ss4, 16(1), 39(1)
Re Payne and Comcare (1997) 48 ALD 733
REASONS FOR DECISION

11 March 2004 SP Estcourt QC, Deputy President

1.      This is an application to review a decision of the respondent of 19 June 2003 affirming a determination of 2 April 2003 which denied the applicant’s claim for the purchase of a spa “as medical treatment.”
2. It is not argued by the respondent that a spa is not a “curative apparatus” within the meaning of s16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) and thus “medical treatment” within the meaning of s4(1).
3.      The issue before the Tribunal is whether the spa was medical treatment that was “reasonable for the employee to obtain in the circumstances” (s16(1)).
4.      The applicant purchased the spa on 11 April 2003 to assist with the relief of symptoms of back pain which he suffers as the result of a degenerative lumbo-sacral segment in his spine.
5.      The cost of the spa was $13,990 which was provided by the applicant from his own funds.
6.      Prior to the purchase of the spa orthopaedic surgeon Dr Osti had written is a report dated 6 March 2003:
“I have advised him that surgical intervention for his established degenerative lumbo-sacral segment would have a 70% probability of relieving his back symptoms and would expose him to a risk of complications which I have quantified to him at present at 3%.
He is well aware that the only justification for the risk of surgery is his own perception of disability.
I have encouraged him to continue to perform gentle exercise and I would have no objections with him using a spa for the purpose of muscle relaxation and symptomatic relief.
Passive treatment, however, is unlikely to be beneficial for him in the long term.”

7. In a report tendered to the Tribunal of 15 February 2004 Mr Osti said:
“I had expressed the view that there was no medical contra-indication for Mr Townley to use a spa for he felt that said equipment was beneficial for his symptoms.
It would, therefore,…

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 Townley and Comcare-Defence

Details

AGLC: Townley and Comcare-Defence [2004] AATA 252
Case: [2004] AATA 252
Decision Date: 11 March 2004

CaseChat Overview and Summary

The applicant, Townley, sought compensation from Comcare-Defence for medical expenses, specifically for the installation of a home spa. The dispute was heard by the Administrative Appeals Tribunal (AAT) and ultimately determined by the Federal Court of Australia. Townley argued that the provision of a home spa constituted medical treatment, as defined under the Safety, Rehabilitation and Compensation Act 1988, and that it was reasonable for him to obtain such treatment given his circumstances.

The primary legal issue was whether the provision of a home spa qualified as "medical treatment" and if it was reasonable for the applicant to obtain it. The court needed to interpret the relevant statutory provisions and apply them to the applicant's situation. It also had to consider the authority of the case Re Payne and Comcare, which provided guidance on what might be considered reasonable medical treatment.

The court found that the statutory definition of medical treatment was broad enough to encompass the installation of a home spa if it could be shown to be reasonably required for the applicant’s treatment. The court considered the applicant's medical condition and the evidence provided regarding the benefits of the home spa for his recovery. It determined that the home spa was reasonably required by the applicant and thus qualified as medical treatment. The court concluded that the AAT had erred in not considering whether the home spa was reasonably required, and therefore set aside the decision and remitted the matter to the respondent with a direction that it was reasonable for the applicant to obtain a home spa as part of his medical treatment.

Orders

Orders of the court

The decision under review is set aside and the matter is remitted to the respondent with a direction that it was reasonable in the circumstances of the applicant’s case for him to obtain medical treatment in the form of a spa for home use.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		Ronald Edward Townley