Alamos v Comcare

Case [2014] AATA 629

[2014] AATA 629 

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2014/1743

Re

Elsa Alamos

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President JW Constance
Date 14 August 2014
Date of written reasons 3 September 2014
Place Sydney

The decision under review, being the decision of Comcare made 7 March 2014, is affirmed.

.............................[sgd]...........................................

Deputy President JW Constance

Catchwords

COMPENSATION – medical treatment – ongoing physiotherapy – whether treatment was reasonable for the employee to obtain – decision affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 16(1)

Cases

Chowdhary and Comcare [1998] AATA 448
Comcare v Watson (1997) 46 ALD 481
Re Popovic and Comcare [2000] AATA 264
Smith and Telstra Corporation Limited [2002] AATA 335
Websdale and Telstra Corporation Limited [2005] AATA 672

Secondary Materials

Transport Accident Commission and Victorian WorkCover Authority, Clinical Framework for the Delivery of Health Services

WRITTEN REASONS FOR DECISION

ORAL REASONS FOR DECISION GIVEN 14 AUGUST 2014

Deputy President JW Constance

INTRODUCTION

  1. Mrs Alamos was employed by the Department of Defence from 1981 until 2005.  Her work involved inspecting packages received by the Department.  To do this she was required to lift the packages and place them on pallets.

  2. In December 2000 Comcare accepted liability for an “aggravation of lumbosacral (joint) (ligament) strain” as it was satisfied that the condition was work related.[1] Comcare also accepted liability to compensate Mrs Alamos for treatment expenses associated with her injury. From 2000 until mid-2006 her treatment included regular massage therapy.

    [1] Exhibit R1, p.13.

  3. In mid-2006 Mrs Alamos commenced weekly physiotherapy sessions to treat her injury.  Comcare met the cost of this weekly treatment until 10 February 2014. 

  4. On 17 January 2014 Comcare determined that:

    … consistent with [a] revised treatment program, under section 16 of the Safety, Rehabilitation and Compensation Act 1988…, the following treatment is accepted as reasonable:

    •     Physiotherapy:

    o   1 session per week, up to and including 9 February 2014

    o   1 session per fortnight, from 10 February 2014 to 6 April 2014

    o   1 session per month, from 7 April 2014 to 6 May 2014.[2]

    The determination was affirmed by Comcare on 7 March 2014. 

    [2] Exhibit R1, p-218.

  5. Mrs Alamos seeks a review of Comcare’s decision to deny liability to compensate her for physiotherapy treatment after 6 May 2014.

    LEGISLATION PROVIDING FOR COMPENSATION FOR MEDICAL EXPENSES

  6. Subsection 16 (1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:

    (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

  7. Medical treatment is defined in subsection 4(1) to mean, in part:

    … therapeutic treatment by … a physiotherapist … registered under the law of a State or Territory providing for the registration of physiotherapists …[3]

    Therapeutic treatment “includes … treatment…

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Details
AGLC
Alamos v Comcare [2014] AATA 629
Case
[2014] AATA 629
Decision Date

CaseChat Overview and Summary

Alamos v Comcare was a case involving Mrs. Alamos, who was pursuing compensation for ongoing physiotherapy treatment she had received for a chronic lumbar spine condition. The dispute centred on whether the physiotherapy treatment was considered "medical treatment" and whether it was reasonable for Mrs. Alamos to obtain under the circumstances. The case was heard by the Administrative Appeals Tribunal (AAT). The central legal issues were whether the physiotherapy constituted "medical treatment" under the Act and whether it was reasonable for Mrs. Alamos to obtain ongoing physiotherapy treatment. The court had to interpret the definition of "medical treatment" and decide if the treatment was reasonable under all circumstances.

The court examined the ordinary meaning of "alleviating an injury" to determine if the physiotherapy qualified as "medical treatment." It concluded that the treatment was indeed "medical treatment" as it alleviated Mrs. Alamos's injury, making it easier to endure. However, the court found that ongoing physiotherapy was not reasonable for Mrs. Alamos to obtain, despite its benefits. The court accepted that the treatment provided relief and flexibility but considered other factors, including the long-term effects, the likelihood of curing the injury, and the cost of ongoing treatment. The court concluded that a home-based exercise plan was a reasonable form of treatment at that stage.

The tribunal affirmed the decision of Comcare, which had determined that ongoing physiotherapy was not reasonable for Mrs. Alamos to obtain since 6 May 2014. It acknowledged that while ongoing physiotherapy might be reasonable at some future point, the tribunal did not have the jurisdiction to make findings on compensation payable in the future. The tribunal's decision was based on the evidence presented, which supported the conclusion that the home-based exercise plan was a reasonable alternative at that time.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Further, since being advised that Comcare would not continue to meet the expenses of weekly treatments, Mrs Alamos has been advised by her doctors that on three occasions she has suffered from panic and anxiety attacks. She believes that these attacks are a result of her being advised that the physiotherapy treatment would not be funded on an ongoing basis and her resulting fear that her health and independence will be adversely affected.[5][5] Statement of Mrs Alamos 24 July 2014, being exhibit A1.The evidence of Mr Bolla, Physiotherapist Mr Bolla is a registered physiotherapist in New South Wales. He has treated Mrs Alamos since 2006. The treatment provided consisted of soft tissue relief, mobilisation and exercise for the chronic lumbar spine condition from which Mrs Alamos suffers. In a report dated 7 May 2014 (i.e. after the conclusion of the period of reduced sessions) Mr Bolla stated, in part:According with the chronic lumbar disorder, there is no evidence that physiotherapy will cure the current progression of the lumbar condition however it could reduce the symptoms temporarily allowing the patient to maintain a reasonable level of functionality and continue with exercise program to maintain flexibility and slow progression of core strength.[6][6] Part of exhibit A1.CONSIDERATIONIssue 1: Was the physiotherapy treatment being received by Mrs Alamos “medical treatment”? To answer this question it is necessary to decide whether the physiotherapy was ”treatment given for the purpose of alleviating injury” (emphasis added) and therefore “therapeutic treatment” within the definition of “medical treatment”. In interpreting the words of an Act the first step is to apply the ordinary meaning of the words used. The ordinary meaning of the words “alleviating an injury” do not require that the treatment be curative.[7] The Macquarie Dictionary Online includes in the meaning of “alleviate”:to make easier to be endured, lessen, mitigate, e.g. to alleviate pain.[7] Comcare v Watson (1997) 46 ALD 481. The Oxford English Dictionary Online gives a similar definition:To make (pain, suffering etc.) less severe, to relieve, to ease, reduce. On the basis of the evidence of Mrs Alamos and Mr Bolla, I am satisfied that the weekly treatments of physiotherapy were given for the purpose of relieving the injury suffered by Mrs Alamos and of making it easier to endure. It follows that the treatment was “therapeutic treatment”, and therefore “medical treatment” within subsection 16(1) of the Act. Issue 2: Was the treatment “reasonable for the employee to obtain in the circumstances”? This is the more difficult question. I accept that Mrs Alamos obtained relief from the pain she suffers and gained flexibility following each session of treatment. I accept also that she has suffered stress as a result of the prospect of not being able to continue with the treatment. Mrs Alamos’ claim that she requires physiotherapy treatment on a weekly basis is supported by Dr Lim, her General Practitioner. On 14 February 2014, [8] Dr Lim reported, in part:I believe that Mrs Alamos’ condition merits ongoing and indefinite physiotherapy treatment so as to enable her to have, and maintain a reasonable quality of life.[8] Part of exhibit A1.

Decision

Reasons for decision

In the circumstances, ongoing physiotherapy is not a form of treatment which has been reasonable for Mrs Alamos to obtain at any time since 6 May 2014. I accept the evidence that the home-based exercise plan is a reasonable form of treatment for Mrs Alamos’ condition at this stage. It may be that sometime in the future it may be reasonable for Mrs Alamos to seek a review of her exercise program by a physiotherapist, but it is beyond the jurisdiction of the Tribunal to make findings as to compensation payable in the future.CONCLUSION The decision under review, being the decision of Comcare made 7 March 2014, will be affirmed.

Ratio Decidendi

Legal Principle Established

In a report dated 7 May 2014 (i.e. after the conclusion of the period of reduced sessions) Mr Bolla stated, in part:According with the chronic lumbar disorder, there is no evidence that physiotherapy will cure the current progression of the lumbar condition however it could reduce the symptoms temporarily allowing the patient to maintain a reasonable level of functionality and continue with exercise program to maintain flexibility and slow progression of core strength.[6][6] Part of exhibit A1.CONSIDERATIONIssue 1: Was the physiotherapy treatment being received by Mrs Alamos “medical treatment”? To answer this question it is necessary to decide whether the physiotherapy was ”treatment given for the purpose of alleviating injury” (emphasis added) and therefore “therapeutic treatment” within the definition of “medical treatment”. In interpreting the words of an Act the first step is to apply the ordinary meaning of the words used. The ordinary meaning of the words “alleviating an injury” do not require that the treatment be curative.[7] The Macquarie Dictionary Online includes in the meaning of “alleviate”:to make easier to be endured, lessen, mitigate, e.g. to alleviate pain.[7] Comcare v Watson (1997) 46 ALD 481. The Oxford English Dictionary Online gives a similar definition:To make (pain, suffering etc.) less severe, to relieve, to ease, reduce. On the basis of the evidence of Mrs Alamos and Mr Bolla, I am satisfied that the weekly treatments of physiotherapy were given for the purpose of relieving the injury suffered by Mrs Alamos and of making it easier to endure. It follows that the treatment was “therapeutic treatment”, and therefore “medical treatment” within subsection 16(1) of the Act. Issue 2: Was the treatment “reasonable for the employee to obtain in the circumstances”? This is the more difficult question. I accept that Mrs Alamos obtained relief from the pain she suffers and gained flexibility following each session of treatment. I accept also that she has suffered stress as a result of the prospect of not being able to continue with the treatment. Mrs Alamos’ claim that she requires physiotherapy treatment on a weekly basis is supported by Dr Lim, her General Practitioner. On 14 February 2014, [8] Dr Lim reported, in part:I believe that Mrs Alamos’ condition merits ongoing and indefinite physiotherapy treatment so as to enable her to have, and maintain a reasonable quality of life.[8] Part of exhibit A1. However the requirement of subsection 16(1) is that for compensation to be payable in respect of the cost of medical treatment obtained in relation to an injury, the treatment must “reasonable for the employee to obtain in the circumstances …”. In considering this requirement, it is necessary to consider all of the circumstances, and not only the beneficial effects experienced by Mrs Alamos. Without intending the list to be exhaustive, some of the factors which may be relevant considerations in the circumstances are:·the benefit of the treatment to the injured worker;·the long-term effect of the treatment;·whether the treatment is likely to cure the injury or significantly reduce its effects;·whether the treatment maintains the status quo;·the cost of ongoing treatment.