D'Costa and Comcare [2000] AATA 1109 (30 November 2000)

Last Updated: 20 March 2001

DECISION AND REASONS FOR DECISION [2000] AATA 1109

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/58-59

GENERAL ADMINISTRATIVE DIVISION )

Re CEDRIC D'COSTA

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr C P Webster (Senior Member)

Date 30 November 2000

Place Canberra

Decision The decision under review is affirmed.

[Sgd C P Webster]

Senior Member

CATCHWORDS

Compensation - whether voice activated computer necessary for applicant's rehabilitation - whether a voice activated computer would enable applicant to maintain "personal self-sufficiency".

Safety, Rehabilitation and Compensation Act 1988.

REASONS FOR DECISION

11 December 2000 Mr C P Webster (Senior Member)

1. This is a statement of reasons for decision pursuant to s.43(2A) of the Administrative Appeals Tribunal Act 1975 in respect of a decision made on 30 November 2000.

Issues

2. Mr Cedric D'Costa ("the applicant") seeks a review of a decision of 12 October 1999 which was affirmed by a Review Officer on 5 January 2000 which denied the applicant's claim for compensation in respect of a voice activated computer and some ergonomic equipment.

3. The issue to be determined by this Tribunal is whether the supply of a voice activated computer and associated equipment is necessary for the applicant's rehabilitation or whether such equipment is necessary to enable the applicant to maintain "personal self-sufficiency as largely as possible in the pursuit of ... personal domestic life".

4. The relevant law is contained in s.39 of the Safety, Rehabilitation and Compensation Act 1988.

The Evidence

5. It is not in issue that the applicant was employed as an Administration Officer and that his claim for compensation in respect of "cervical brachial pain syndrome and right hip and buttock pain" were accepted by Comcare for an injury on 18 February 1999.

6. It is conceded by the respondent that the applicant is presently unfit for work.

7. It is common ground that since August 2000 Ms Crowley of Dysaran Consulting has been the rehabilitation consultant provided to the applicant.

8. The applicant gave evidence in person. He complained regarding the adequacy of the service provided by Dysaran Consulting. He stated that if he were provided with a voice activated computer he could remedy the inadequacies in the job seeking service provided by Dysaran by preparing his own applications for jobs.

9. Ms Crowley, the Managing Director of Dysaran, gave evidence by telephone as to the job seeking assistance provided to the applicant.

10. Both witnesses gave evidence that approximately 60 written applications had been lodged by Dysaran on behalf of the applicant and that he had the opportunity to read the applications and that he also had the opportunity to amend and prepare his own applications with the assistance of a secretary provided by Dysaran.

11. That the applicant had received 2 interviews to date and that there were still 3 job applications awaiting a response.

12. Where the evidence of Ms Crowley and the applicant were at odds, I prefer the evidence of Ms Crowley.

13. It appeared to the Tribunal that the applicant was evasive and was not frank in his replies and that a number of his complaints regarding the service provided by Dysaran smacked of recent invention. This conclusion was reinforced by the absence of any earlier written complaints from the applicant regarding the provision of service by Dysaran.

14. I am satisfied from the evidence of Ms Crowley and indeed the evidence of the applicant (where it did not contradict that of Ms Crowley) that the rehabilitation service provided to him to date was of the highest quality and could not be improved upon by the provision of a voice activated computer. I am unconvinced that such equipment would assist the applicant further in his rehabilitation.

15. I also believe that the real reason that the applicant requires a voice activated computer is not to assist him to write applications for employment but to enable him to use the computer for his bird breeding hobby and to enable him to use the Internet.

16. I note in this regard that the first mention of the need for a voice activated computer was to prepare applications for employment arose in recent weeks (and certainly not before the application for a review was made).

17. Section 39 provides that Comcare should pay the reasonable costs of aide to applicants required to "maintain personal self-sufficiency as largely as possible in the pursuit of ... personal domestic life". It does not include aids to applicants amounting to items of luxury or for use in leisure or recreation. I note the authorities referred to by the respondent in its statement of facts and contentions.

18. A voice activated computer and equipment for the purpose of Internet access and to maintain a hobby of bird breeding and secretary of the club is a luxury or a use in a leisure or recreational activity.

Decision

19. The decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 30 November 2000

Date of Decision 30 November 2000

Representative for the Applicant Mr G Fenwick

Solicitor for the Respondent Mr D O'Donovan (Aust. Gov. Sol)