Fletcher and Comcare [2002] AATA 128 (27 February 2002)

Last Updated: 29 May 2002

DECISION AND REASONS FOR DECISION [2002] AATA 128

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/289

GENERAL ADMINISTRATIVE DIVISION ) A2002/84

Re GRAHAM WALTER FLETCHER

Applicant

And COMCARE

Respondent

DECISION

Tribunal Joan Dwyer, Senior Member

Date 27 February 2002

Place Canberra

Decision The Tribunal varies the reviewable decision, made under s 62 of the Safety, Rehabilitation and Compensation Act 1988 on 19 February 2002, to provide that compensation is payable in respect of the cost of a consultation with a dietician on 13 February 2001, as well as for the services provided on the dates specified in the reviewable decision.

.......................................

Joan Dwyer

Senior Member

CATCHWORDS

COMPENSATION-claim for compensation for cost of medical treatment-whether Tribunal has power to direct Comcare as to how it goes about its task of deciding whether treatment was "reasonable for the employee to obtain"- decision varied

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 ss 16, 62

REASONS FOR DECISION

27 February 2002 Joan Dwyer, Senior Member

1. These matters came on for hearing to-day. Mr Fletcher appeared. Mr A Dillon, a solicitor with the Australian Government Solicitor appeared for Comcare. The Tribunal had before it the documents lodged in compliance with s37 of the Administrative Appeals Tribunal Act 1975 in matter A2001/289 and the exhibit tendered by the respondent

2. On 19 February 2002 Comcare reconsidered the reviewable decision of 23 May 2001, (the subject of matter A2001/289) in a reconsideration of own motion under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (" the Act" ). Comcare decided to pay compensation under s 16 of the Act in respect of consultations with a dietician on 27 June 2000, 11 July 2000, 1 August 2000 and 26 September 2000.

3. Mr Fletcher lodged a further application for review of that decision on 26 February 2002 (matter A2002/84) claiming that further consultations with a dietician had been claimed and rejected and should be paid by Comcare.

4. At the commencement of the hearing Mr Dillon said that one further consultation had been identified by Comcare, and that Comcare agreed that it should pay compensation in respect of that consultation.

5. Mr Fletcher referred to a consultation on 13 February 2001, which Mr Dillon said was the one to which he had referred. Mr Fletcher did not identify any further consultations for dietary advice which were covered by the decision under review in matter A2001/289.

6. In a directions hearing on 17 December 2001, Mr Fletcher advised the Tribunal that he was not proceeding with his claim for compensation for the cost of physiotherapy treatment. He confirmed that in the hearing to-day.

7. Mr Fletcher sought to have the Tribunal decide whether Comcare was entitled to require completion of a form entitled "Treatment Plan" by a treating doctor before paying compensation for the cost of future physiotherapy.

8. The Tribunal told Mr Fletcher that it did not have power to make such a decision. It has power to decide, in respect a reviewable decision rejecting a claim for compensation for the cost of medical treatment, whether that treatment was "treatment that it was reasonable for the employee to obtain in the circumstances". The Tribunal does not have power to direct Comcare as to how it goes about its task of deciding, under s 16 of the Act, whether or not treatment is "treatment that it was reasonable for the employee to obtain in the circumstances".

9. The Tribunal therefore varies the reviewable decision made under s 62 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") on 19 February 2001 to provide that compensation is payable in respect of the cost of a consultation with a dietician on 13 February 2001 as well as for the services provided on the dates specified in the reviewable decision.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Joan Dwyer, Senior Member

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

Associate

Date of Hearing 27 February 2002

Date of Decision 27 February 2002

Representative for the Applicant self represented

Solicitor for the Respondent Mr A Dillon, Australian Government Solicitor