Weir and Comcare - [2006] AATA 457

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 457
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/271

GENERAL ADMINISTRATIVE DIVISION )

Re MAUREEN WEIR

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date26 May 2006
PlaceCanberra

Decision
The decision under review is set aside and in substitution thereof the Tribunal decides that the Turning Point course was medical treatment that was reasonable for Ms Weir to obtain in the circumstances.

The Respondent is to pay Ms Weir’s reasonable costs in these proceedings pursuant to the Tribunal’s practice direction as agreed or taxed.

..............................................
Mr S. Webb, Member

CATCHWORDS
COMPENSATION - medical treatment expenses – therapeutic treatment – psychotherapy - personal development course - psychologist - meaning of ‘at the direction of’ and 'legally qualified medical practitioner'- therapeutic treatment obtained at the direction of a legally qualified medical practitioner - decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 16
Health Professionals Act (ACT) 2004 s 23
Health Professionals Regulations (ACT) 2004 Schedule 2, Item 2.2
Comcare v Watson (1997) 73 FCR 273
Bashar v Comcare (2002) 69 ALD 784
REASONS FOR DECISION

26 May 2006 Mr S. Webb, Member

1.      By this application Maureen Weir is seeking review of the determination made by Comcare, and affirmed by an independent review officer, to reject her claim for compensation in relation to the Turning Point course.
2.      The matter was dealt with on the papers before the Tribunal.
facts
3.      It is not in issue that Ms Weir was injured in employment as a Registered Nurse with ACT Health on 19 May 1998. Comcare accepted liability for the injury, described as lumbosacral disc prolapse (T5). Ms Weir suffered from chronic pain (see T9 and T17) and claimed compensation for medical treatment expenses in relation to her injury. She attended the ADAPT pain management program at the Royal North Shore Hospital and was discharged on 22 December 1999 (T10).
4.      On 10 January 2001 Ms Weir was referred by Dr George Chan, general practitioner, to Laura Lander (now Laura Fox), psychologist, for treatment in relation to pain arising from her injury (T14). On 22 March 2001 Ms Fox informed Dr Chan that:
“Treatment has incorporated pain management to help Maureen manage her back injury and accept her physical limitations. Treatment has also included relaxation training and assertiveness training.
… I will keep you informed of her progress.”

5.      In response to Ms Weir’s claim for approval of “psychological treatment” recommended by Dr Chan (T15), on 8 August 2001 Comcare determined that “the provision of counselling services to Ms Weir constitutes medical treatment obtained in relation to her injury” (T16). That treatment was provided by Ms Fox on a fortnightly basis (T22).
6.      On 16 October 2002 the Tribunal issued a consent decision, determining that Ms Weir was entitled to compensation for permanent 19% whole person impairment.
7.      On 24 April 2002 Dr Garth Eaton reported that “Further pain management education and…

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 Weir and Comcare

Details

AGLC: Weir and Comcare [2006] AATA 457
Case: [2006] AATA 457
Decision Date: 26 May 2006

CaseChat Overview and Summary

In the case of Weir and Comcare, the matter was heard in the Administrative Appeals Tribunal. The applicant, Ms Weir, sought compensation for medical treatment expenses related to a therapeutic treatment, specifically a personal development course, that she had undertaken. The respondent, Comcare, opposed the claim, arguing that the course did not qualify as medical treatment under the relevant legislation. The Tribunal was tasked with determining whether the personal development course was medical treatment that Ms Weir was entitled to claim for under the Safety, Rehabilitation and Compensation Act 1988.

The key legal issues before the Tribunal were whether the personal development course constituted 'medical treatment' under the Act and if the treatment was obtained 'at the direction of' a legally qualified medical practitioner. The definition of 'medical treatment' in the Act includes therapeutic treatment, which in turn is defined as treatment obtained at the direction of a legally qualified medical practitioner. The Tribunal also needed to consider whether the psychologist who recommended the course was indeed a legally qualified medical practitioner under the Act.

The Tribunal found that the personal development course was therapeutic treatment and therefore qualified as medical treatment under the Act. The Tribunal emphasised that the crucial factor was whether the treatment was obtained at the direction of a legally qualified medical practitioner, which in this case, it was. The psychologist who recommended the course was considered to be a legally qualified medical practitioner under the Health Professionals Act (ACT) 2004 and the Health Professionals Regulations (ACT) 2004. The Tribunal set aside the earlier decision that denied Ms Weir's claim and determined that the course was reasonable for her to obtain in the circumstances.

As a result of the Tribunal's decision, the respondent, Comcare, is ordered to pay Ms Weir's reasonable costs in these proceedings, in accordance with the Tribunal's practice direction as agreed or taxed.

Orders

Orders of the court

The decision under review is set aside and in substitution thereof the Tribunal decides that the Turning Point course was medical treatment that was reasonable for Ms Weir to obtain in the circumstances.

The Respondent is to pay Ms Weir’s reasonable costs in these proceedings pursuant to the Tribunal’s practice direction as agreed or taxed.

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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