Anand and Comcare (Compensation) - [2016] AATA 766

Anand and Comcare (Compensation) [2016] AATA 766 (30 September 2016)

Division

GENERAL DIVISION

File Number(s)

2015/5130

Re

Charanjit Anand

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member A Poljak

Date 30 September 2016

Place
Sydney

The decision under review, being the decision of Comcare made on 21 September 2015 is set aside and in substitution the Tribunal finds that weekly massage treatment qualifies under s 16 of the Act as medical treatment obtained in relation to Dr Anand’s injury, and it is reasonable treatment obtained in relation to that injury.

......................[sgd]..................................................
Senior Member A Poljak
CATCHWORDS
WORKERS COMPENSATION - claim for massage treatment - whether treatment is medical treatment for the purposes of the Act - whether treatment reasonable for the employee to obtain in the circumstances - decision set aside and substituted

LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4, 16(1)
CASES
Alamos v Comcare [2014] AATA 629

Comcare v Holt [2007] FCA 405
Comcare Australia v Rope (2004) 135 FCR 443
Re Popovic and Comcare [2000] AATA 264

SECONDARY MATERIALS
Clinical Framework for the Delivery of Health Services- Joint presentation of the Victorian Transport Accident Commission, Worksafe Victoria and the State Government of Victoria
REASONS FOR DECISION
Senior Member A Poljak
30 September 2016

Dr Anand seeks review of Comcare's decision under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), dated 21 September 2015, refusing payments for massage treatment for an accepted injury of triangular fibrocartilage tear to his right wrist (“the injury”).
BACKGROUND
Dr Anand sustained an injury to his right wrist on 14 December 2006. The injury occurred while he was driving home from work. He lodged a claim for compensation dated 21 December 2006.
On 12 January 2007, Comcare made a determination accepting liability for Dr Anand’s injury pursuant to s 14 of the Act.
On 22 January 2007, Comcare approved one session of massage treatment.
Dr Edmunds, in his report dated 31 January 2007, diagnosed Dr Anand to have suffered from a triangular fibrocartilage tear to his right wrist.
For the period of 19 February 2007 until 31 January 2012, Comcare approved one session of massage treatment per week. For the period 31 January 2012 until 14 January 2013, Comcare approved massage treatment as was reasonably required. For the period 14 January 2013 until 27 July 2015, Comcare yet again approved weekly massage treatments.
In a determination dated 27 July 2015, a delegate for Comcare determined that Dr Anand had no present entitlement to compensation in respect of medical treatment under section 16 of the Act. In that determination the delegate was not satisfied that massage was reasonable treatment in the circumstances. Upon request by Dr Anand the decision of the delegate was reviewed and affirmed in a determination dated 21 September 2015. This is the reviewable decision in these proceedings.
ISSUES FOR DETERMINATION
Two issues arise in this application:
(a)Is the treatment received by Dr Anand “medical treatment” as defined by section 4 of the Act?

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 Anand and Comcare (Compensation)

Details

AGLC: Anand and Comcare (Compensation) [2016] AATA 766
Case: [2016] AATA 766
Decision Date: 30 September 2016

CaseChat Overview and Summary

This matter concerned an appeal by Dr Anand against a decision of Comcare. Dr Anand sought to claim the cost of weekly massage treatment as medical treatment under the relevant Act, which Comcare had refused. The dispute centred on whether the massage treatment constituted "medical treatment" for the purposes of the Act and, if so, whether it was reasonable for Dr Anand to obtain such treatment in the circumstances.

The court was required to determine two primary legal issues. Firstly, whether the weekly massage treatment provided to Dr Anand qualified as "medical treatment" as defined by section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). Secondly, the court had to consider whether, assuming it was medical treatment, the treatment was "reasonable" for Dr Anand to obtain in relation to his compensable injury.

In reaching its decision, the court reasoned that to deny Dr Anand access to a treatment that offered objective benefit in relieving pain and improving functional capacity, particularly when the alternative might be more invasive treatments, would be unreasonable. The court applied the principles of reasonableness in the context of medical treatment under the Act, finding that the massage treatment was of benefit and contributed to Dr Anand's well-being and functional capacity. Consequently, the court set aside Comcare's decision of 21 September 2015 and substituted its own finding that weekly massage treatment qualified as medical treatment under section 16 of the Act and was reasonable treatment obtained in relation to Dr Anand's injury.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It appears to me that to deny Dr Anand access to a treatment to which the alternative may be more invasive treatments, and which it can be objectively satisfied is of benefit in the relief of the pain associated with his compensable condition and is of benefit in the improvement of his functional capacity, would be unreasonable.CONCLUSION For the above reasons, the decision under review, being the decision of Comcare made on 21 September 2015 is set aside and in substitution I find that weekly massage treatment qualifies under s 16 of the Act as medical treatment obtained in relation to Dr Anand’s injury, and it is reasonable treatment obtained in relation to that injury.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number(s)	2015/5130
Re	Charanjit Anand
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member A Poljak
Date	30 September 2016
Place	Sydney