Young and Comcare - [2005] AATA 1277

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 1277
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/102

GENERAL ADMINISTRATIVE DIVISION )

Re PATRICIA YOUNG

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Deputy President S D Hotop
Dr D Weerasooriya, Member
Date21 December 2005
PlacePerth

Decision
The Tribunal sets aside the reviewable decision of the respondent dated 9 February 2004 and, in substitution therefor, decides that the respondent is liable under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) to pay compensation to Ms Young in accordance with s 16(1) of the SRC Act as specified in paragraph 44 of the Tribunal’s Reasons for Decision herein.

The Tribunal orders, pursuant to s 67 (8) of the SRC Act, that the costs of these proceedings incurred by Ms Young be paid by the respondent.

...........(sgd S D Hotop)...........
Deputy President

CATCHWORDS
COMPENSATION – Commonwealth employees – medical treatment – “Feldenkrais Method” treatment – therapeutic treatment – obtained at direction of legally qualified medical practitioner – reasonable in circumstances to obtain such treatment – reviewable decision set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1), s 14(1) and s 16(1)
Comcare v Watson (1997) 73 FCR 273
REASONS FOR DECISION

21 December 2005 Deputy President S D Hotop
Dr D Weerasooriya, Member

Introduction
1.      In the period 1995–1997 Ms Patricia Young suffered injuries in the regions of her neck, shoulders and back in the course of her employment with the Commonwealth, and she subsequently claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) in respect of those injuries.
2. On 11 March 1998 the respondent accepted liability under the SRC Act to pay compensation to Ms Young in respect of a condition described as “exacerbation of pre-existing cervico-thoracic conditions and aggravation of pre-existing left shoulder and fibromyalgia conditions”.
3. The respondent has paid compensation in accordance with the SRC Act to Ms Young, including compensation pursuant to s 16 of the SRC Act in respect of the cost of medical treatment obtained by her in respect of her work-related condition. That treatment included “Feldenkrais Method” treatment.
4.      On 12 November 2003, however, an officer of the respondent determined that the respondent was not liable to pay compensation to Ms Young for medical expenses associated with Feldenkrais sessions attended by her in 2002 and 2003. That determination was affirmed by a review officer of the respondent in a “reviewable decision” made on 9 February 2004.
5.      Ms Young has applied to the Tribunal for a review of the “reviewable decision” of 9 February 2004.
The Issues and the Tribunal’s determination
6. The ultimate issue is whether the respondent continues to be liable to pay compensation pursuant to s 16 (1) of the SRC Act to Ms Young in respect of the cost of her obtaining “Feldenkrais Method” treatment. In order to determine that issue, the Tribunal is required also to determine the following issues:
· whether…

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 Young and Comcare

Details

AGLC: Young and Comcare [2005] AATA 1277
Case: [2005] AATA 1277
Decision Date: 21 December 2005

CaseChat Overview and Summary

The Federal Circuit Court was presented with a case concerning Ms Young and Comcare, where Ms Young sought compensation for medical treatment she received under the direction of a legally qualified medical practitioner. The dispute centred on whether this treatment, specifically "Feldenkrais Method" therapy, was therapeutic and thus compensable under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The central legal issue was whether the treatment Ms Young received was therapeutic and whether it was reasonable and necessary for her to obtain such treatment under the circumstances. The court had to determine if the decision of Comcare to deny compensation was legally sound.

The court meticulously examined the evidence and the provisions of the SRC Act, particularly sections 4(1), 14(1), and 16(1). It considered whether the treatment was therapeutic, whether it was reasonable for Ms Young to obtain it under the given circumstances, and whether Comcare's decision was reviewable and lawful. The court noted the absence of a specific definition of "therapeutic treatment" in the SRC Act and looked to other relevant case law, including Comcare v Watson, for guidance. Ultimately, the court found that the treatment in question was therapeutic and that it was reasonable for Ms Young to obtain it, leading to the conclusion that Comcare's decision was not supported by the law.

In light of the findings, the Tribunal set aside Comcare's decision and substituted its own decision, holding that Comcare was liable to pay compensation to Ms Young. The court held that the treatment was compensable as it was reasonable and necessary under the circumstances. Additionally, the court ordered that the costs of the proceedings be borne by Comcare, reflecting the Tribunal's view that the original decision was flawed and not justified by the evidence or the law.

Orders

Orders of the court

The Tribunal sets aside the reviewable decision of the respondent dated 9 February 2004 and, in substitution therefor, decides that the respondent is liable under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) to pay compensation to Ms Young in accordance with s 16(1) of the SRC Act as specified in paragraph 44 of the Tribunal’s Reasons for Decision herein.

The Tribunal orders, pursuant to s 67 (8) of the SRC Act, that the costs of these proceedings incurred by Ms Young be paid by the respondent.

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		PATRICIA YOUNG