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Aylett and Comcare (Compensation)

Aylett and Comcare (Compensation)

Case [2019] AATA 1474 26 June 2019

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Aylett and Comcare (Compensation) [2019] AATA 1474 (26 June 2019)
Division:GENERAL DIVISION
File Number(s): 2016/4269
Re:Melissa Aylett
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:26 June 2019
Place:Hobart

The decision under review is affirmed.
................................[sgd].....................................
A G Melick AO SC, Deputy President
COMPENSATION – liability for medical expenses – determinations ceasing liability for medical expenses – whether material contribution to Applicant’s condition by employment – reasonableness of treatment – massage treatment – physiotherapy treatment – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 16
Cases
Dunstan v Comcare [2011] FCAFC 108; (2011) 125 ALD 362
Rope and Comcare [2018] AATA 42; 158 ALD 183
Secondary Materials
The Clinical Framework for the Delivery of Health Services, WorkSafe Victoria
REASONS FOR DECISION
A G Melick AO SC, Deputy President
26 June 2019

The Applicant, Ms Aylett, was employed by the Australian Taxation Office (ATO) from May 1990 until 2001. She performed various administrative roles at the ATO, including a period of data entry associated with cheque processing.
In December 1998 the Applicant signed a claim for compensation in respect of a right shoulder injury, which she said she first noticed in November 1998.[1] She described the injury as ‘right arm/neck/shoulder aggravated again’ and noted that it was the same injury as one suffered in August 1993. The Applicant did not have any time off work.
[1] T5, p 9.
It appears the Applicant had previously had an injury in October 1993. Clinical notes from that time refer to right carpal tunnel, right de Quervains and pain in the left and right trapezius.[2] A clinical note from November 1995 describes a right shoulder and neck/right arm injury from 25 August 1993 that flared up each year.[3]
[2] Exhibit 3.
[3] Exhibit 3.
The 1998 compensation claim was accepted by the Respondent and it is common ground that since that time the Applicant has continued to obtain treatment in the form of massage and physiotherapy. Her ongoing symptoms are chronic neck pain, right sided shoulder and arm pain, right neck and shoulder spasms and migraines.
In June 2015 the Respondent issued a determination ceasing liability for physiotherapy treatment under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for the condition of ‘disorders of muscle, ligament, & fascia (right)’.[4] The determination set out a physiotherapy treatment plan that, from 25 June 2015, decreased in frequency until ceasing treatments totally by 30 November 2015. Between 19 November 1998 and 30 March 2016 the Applicant received treatment on some 679 occasions.
[4] T37.
In April 2016 the Respondent issued a separate determination that it was no longer liable to pay for massage treatment under s 16 of the SRC Act for the same condition of ‘disorders of muscle, ligament, & fascia (right)’.[5]
[5] T42.
The Applicant sought review of the decisions referred to at paragraphs 5 and 6 above and on 17 June 2016 the…

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 Aylett and Comcare (Compensation)

Details

AGLC: Aylett and Comcare (Compensation) [2019] AATA 1474
Case: [2019] AATA 1474
Decision Date: 26 June 2019

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, Ms Aylett, against a decision by the Administrative Appeals Tribunal (AAT) which affirmed a decision by Comcare to cease paying for certain medical treatments. The Applicant had been employed by the Australian Taxation Office (ATO) from 1998 to 2001, performing duties that involved significant data entry and cheque processing. She claimed that during this employment, she developed symptoms including headaches, numbness, and pain extending from her neck and shoulder to her fingers, which she attributed to the repetitive nature of her work. These symptoms persisted after her employment ceased.

The AAT was required to determine whether the Applicant's employment at the ATO materially contributed to her current ailments, and if so, whether the physiotherapy and massage treatments she sought were reasonable treatment for those ailments. The Applicant's case relied on her assertion that she was asymptomatic before commencing her ATO role and that her symptoms directly correlated with her work duties. However, during cross-examination, it emerged that the Applicant had been involved in several motor vehicle accidents in the past, which had resulted in injuries and symptoms such as whiplash, neck pain, and shoulder pain.

The Deputy President accepted that the Applicant was honest in her evidence but found that her recollection of significant past traumas, specifically the motor vehicle accidents, had undermined the effect of much of her testimony. Despite this, the Deputy President found that if there was a material contribution to the Applicant's ailment from her employment at the ATO, then massage administered by a physiotherapist and physiotherapy treatment would be considered reasonable treatment. Ultimately, the AAT affirmed the decision to cease payment for the treatments.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I note that, although the definitions of ‘injury’ and ‘disease’ now appear in the SRC Act at ss 5A and 5B, there are no differences relevant to the determination of this matter.APPLICANT'S EVIDENCE The Applicant's case was heavily reliant upon the assertion that she was asymptomatic prior to commencing her data entry role with the ATO and that the development of her symptoms coincided with the repetitive duties. The Applicant commenced work with the ATO in 1998 with her first role being in personnel and Human Resources. She was stationed at the front desk for in person and telephone enquiries and was also responsible for data entry. After six months the Applicant was transferred to cash processing and keying cheques into a cheque processing machine. She would do this all day and began noticing headaches, numbness and pain. The numbness, including pins and needles, extended from her neck and shoulder to her fingers and eventually led to migraines. The Applicant’s symptoms lessened considerably on rostered days off and it seems they also lessened when she returned to the front counter and was not seated at the cheque processing machine. The Applicant ceased working for the ATO in 2001 but said her symptoms never resolved. She gave evidence that she currently suffers from migraines, pain with some numbness and sometimes pins and needles. The Applicant manages these symptoms by doing exercises under hot water as recommended by the physiotherapist. She also uses ice packs, goes walking, does stretching, and takes hot baths with Epsom salts. The Applicant stated that she has been seeing a physiotherapist for the entire period since making her compensation claim, of a frequency of about once per week. She said this was cut back to once per fortnight after she left the employ of the Commonwealth. The Applicant has also had massage (once per fortnight), acupuncture, laser acupuncture, cupping and ultrasound. She believes that the physiotherapy and massage reduces the extent of the migraines, the pain, and the numbness and tingling in the arm. The Respondent ceased paying for treatments in 2016 but the Applicant continued the physiotherapy and massage treatments, funded by herself and through private health insurance. In her evidence, the Applicant stated that she remembered having a car accident many years ago but that, at the time of her employment with the ATO, she had no issues with her body in any shape or form. However, it became apparent during cross-examination that she had actually been involved in several motor vehicle accidents resulting in injuries and/or symptoms such as whiplash, neck pain and shoulder pain. Details of those motor vehicle accidents are set out below. I accept that the Applicant was honest in her evidence but find that the effect of much of that evidence was undermined by her failure to remember what I consider to be significant past traumas. Of particular significance was the non-reporting of the motor vehicle accidents to examining specialists, the effect of which is discussed further below.History of motor vehicle accidents

Decision

Reasons for decision

I would therefore accept that massage administered by a physiotherapist and physiotherapy treatment to be reasonable treatment if there was a material contribution to the ailment from the Applicant’s employment at the ATO.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Aylett and Comcare (Compensation) [2019] AATA 1474

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Cases cited in this decision · 16 of 16 shown

Rope and Comcare (Compensation)
[2018] AATA 42 Para 9

…It is open to the Tribunal to determine that medical treatment is reasonable if it results in temporary relief, see Rope and Comcare [2018] AATA 42 per Deputy President Humphries at paragraphs 35-46: 35. A number of decisions, both of the Tribunal and the Federal Court, are pertinent. In Bayani and Australian Pos…
Topping and Comcare (Compensation)
[2015] AATA 525 Para 9

…the extent of the therapeutic benefit no longer justifies the cost in the light of past experience...(at [26]) 42. In Topping and Comcare [2015] AATA 525 the Tribunal at [47] rejected Ms Topping’s claim for massage and osteopathy under s 16, finding that: ...the therapies have become a ritual, fostering a dependen…
Zahra Bayani and Australian Postal Corporation
[2015] AATA 342 Para 9

…t paragraphs 35-46: 35. A number of decisions, both of the Tribunal and the Federal Court, are pertinent. In Bayani and Australian Postal Corporation [2015] AATA 342 the Tribunal considered the principles found in the Clinical Framework for the Delivery of Health Services (the Framework). It referred to the adopti…
Re Durham and Comcare
[2014] AATA 753 Para 9

…and will not provide long-term improvement in [the applicant’s] condition (at [39]). On a similar basis, the Tribunal in Durham and Comcare [2014] AATA 753 rejected a claim for physiotherapy, even though evidence had been led that this treatment, while ineffective in overcoming the applicant’s pain, did allow him…
Alamos v Comcare
[2014] AATA 629 Para 9

…where it is no longer reasonable unless it is part of a plan for permanent improvement in the health of the employee. 40. In Alamos and Comcare [2014] AATA 629 the Tribunal rejected a claim for physiotherapy on the basis that short-term alleviation of the applicant’s symptoms, is not medically indicated and will n…
Eleanor Rope and Comcare
[2013] AATA 280 Para 9

…ity to self manage her condition and foster future self-reliance. 43. In another case involving the present applicant, Rope and Comcare [2013] AATA 280 (Rope No2), the Tribunal decided that Mrs Rope was entitled to compensation under s 16 in respect of the costs of attending mindfulness classes as directed by her…
Dunstan v Comcare
[2011] FCAFC 108 Para 25

…A useful summary of the considerations surrounding ‘material’ is contained in Dunstan v Comcare [2011] FCAFC 108: 18. The effect of s 19(1) and (2) of the SRC Act is to create an obligation on Comcare to pay, and an entitlement to an employee who is incapacitated for work as a result of an injury to receive, compen…
Kowalski v Military Rehabilitation and Compensation Commission
[2011] FCAFC 44 Para 25

…award of compensation: see Kowalski v The Military Rehabilitation and Compensation Commission (2011) 191 FCR 345 at [47]. In Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536 at [16], Finn J observed that the definition of “disease” in s 4 of the SRC Act required a much stronger causal relationship between the em…
Comcare v Holt
[2007] FCA 405 Para 9

…n led that this treatment, while ineffective in overcoming the applicant’s pain, did allow him to continue working. 41. In Comcare v Holt [2007] FCA 405 Mansfield J concluded that a cost/benefit analysis, of the kind recommended in Rope, ought to be undertaken. His Honour decided that there may be circumstances w…
Comcare v Sahu-Khan
[2007] FCA 15 Para 25

…Rehabilitation and Compensation Commission (2011) 191 FCR 345 at [47]. In Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536 at [16], Finn J observed that the definition of “disease” in s 4 of the SRC Act required a much stronger causal relationship between the employment and the ailment than that prescribed…
Bashar v Comcare
[2002] FCA 837 Para 9

…(1), may include treatment to alleviate the symptoms of an injury and palliative or preventative treatments (Bashar v Comcare Australia [2002] FCA 837 at [9]). Treatments of that kind are unlikely to appear in a plan for the permanent improvement of an injury. Some injuries cannot be permanently improved, and I d…
Re Popovic and Comcare
[2000] AATA 264 Para 9

…nd subsequently practice and implement appropriate strategies as determined by a competent physiotherapist. 37. Similarly, in Popovic and Comcare [2000] AATA 264; (2000) 64 ALD 171 the applicant claimed for physiotherapy which provided short-term relief of his symptoms, including affording better sleep making him…
Comcare v Watson
[1997] FCA 149 Para 9

…received was small and short-lived. We accept that pain relief, even short-term relief or reduction in pain, can be therapeutic: Comcare v Watson [1997] FCA 149; (1997) 73 FCR 273 at 276 ; [1997] FCA 149; 46 ALD 481 at 484 ; [1997] FCA 149; 154 ALR 173 at 176 per Finn J. However, in this case any benefit is outwe…
[1990] AATA 129
[1990] AATA 129 Para 9

…se it was not in his best interest for passive physiotherapy modalities to have continued beyond 16 September 1997: Re Jorgenson and Commonwealth [1990] AATA 129; (1990) 23 ALD 321. 38. The Tribunal went on to say at [30] that the applicant’s case is one in which, while temporary relief can be reasonable treatment…
Chowdhary v Comcare
[1998] AATA 448 Para 9

…pplicant’s case is one in which, while temporary relief can be reasonable treatment, it has become unreasonable... 39. In Chowdhary and Comcare [1998] AATA 448 the Tribunal commented, with respect to a claim for physiotherapy treatment under s 16 at [53]: In particular, there is no evidence of any plan to have the…
[2005] FCAFC 262
[2005] FCAFC 262 Para 25

…The relevant text of the speech is reproduced in Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232 at [66] per French and Stone JJ: It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordin…

Legislation cited in this decision · 3

Safety, Rehabilitation and Compensation Act 1988 (Cth)
16 2 mentions (from Para 5)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
1 mention (from Para 25)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
1 mention (from Para 25)