Bennett and Comcare (Compensation)

Case [2017] AATA 1269

Bennett and Comcare (Compensation) [2017] AATA 1269 (9 August 2017)

Division:GENERAL DIVISION

File Number(s):      2016/3602

Re:Rosalie Bennett

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:L M Gallagher, Member

Date:9 August 2017

Place:Perth

The decision under review is affirmed.

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

L M Gallagher, Member

CATCHWORDS

COMPENSATION – Commonwealth employees – accepted injury - repetitive strain injury (right) arm – distinction between injury and diagnosis – distinction between injury and symptoms – distinction between diagnosis and symptoms - whether proposed physiotherapy treatment in relation to accepted injury – decision under review affirmed

LEGISLATION

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth) subsection 5A(1)(b), sections 14, 16, 124

CASES

Canute and Comcare (2006) 91 ALD 552

Re Rosalie June Bennett and Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1991] AATA 331

SECONDARY MATERIALS

Peter Sutherland, John Oman Ballard and with Allan Anforth, Annotated Safety, Rehabilitation and Compensation Act 1988 (The Federation Press, 10th ed, 2014)

Clinical Framework for the Delivery of Health Services

REASONS FOR DECISION

L M Gallagher, Member

9 August 2017

INTRODUCTION

  1. Ms Bennett has an accepted workers’ compensation claim in respect of ‘repetitive strain injury (right) arm’ with a date of injury of 15 March 1985 (‘the injury’).  Ms Bennett sustained her injury in the course of her employment with Centrelink (now the Department of Human Services).

  2. Ms Bennett has received compensation for various physiotherapy treatment expenses since 1993.

  3. On 17 May 2016, a Comcare delegate determined that compensation was not payable under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’), for Ms Bennett’s physiotherapy treatment.  In the determination, the Comcare delegate noted that (T115):

    “In line with Comcare’s clinical framework, treatment should medically treat the compensable condition within a reasonable timeframe, and not just provide temporary relief of the symptoms for a short period of time.  The Clinical Framework is designed to assist the providers to empower employees and to teach them self-management strategies.”

  4. The physiotherapy treatment the subject of the reviewable decision is the physiotherapy treatment notification plan dated 26 April 2016 in relation to Ms Bennett, (T114) (the ‘proposed physiotherapy treatment’).  The plan states, relevantly, and in part:

    “Current reported symptoms and physical assessment findings

    Range of Movement restricted.  Cervical, thoracic right side flexion/rotation at 4/5.

    Right shoulder impingement at end of range flexion.

    Hand behind back – Thoracic 8 level.

    Reduced strength.  Cervical, thoracic, right shoulder rotator cuff 5(-)/5

    Pain and tightness with tenderness on palpation for right cervical, thoracic and rotator cuff muscles 2-5/10…

    Proposed treatment plan from today’s date

    Total no. of services 3 to 5 over 8 weeks from 01/05/2016 to 31/07/2016

    Proposed treatment methods including client self management strategies

    As per referral from Dr Martin Bender, 3 to 5 hands on sessions every 2 to 3 months due to flare up of chronic neck and shoulder pain.

    Hands on treatment – passive joint mobilisation, soft tissue massage, dry needling,…

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AGLC
Bennett and Comcare (Compensation) [2017] AATA 1269
Case
[2017] AATA 1269
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Bennett against a decision by Comcare to affirm a determination that proposed physiotherapy treatment was not reasonable treatment in relation to her accepted repetitive strain injury to her right arm. The dispute arose from Comcare's assessment that the physiotherapy treatment did not align with the principles of the Clinical Framework for the Delivery of Health Services, deeming it not effective, empowering, goal-focused, evidence-based, or possessing a biopsychosocial approach, and therefore not clinically justifiable or reasonable. The Administrative Appeals Tribunal (AAT) heard the matter in Perth.

The primary legal issue before the Tribunal was whether Comcare was liable to pay Ms Bennett compensation for the proposed physiotherapy treatment under section 16 of the *Compensation (Commonwealth Government Employees) Act 1971* (Cth). This overarching question required the Tribunal to determine three specific points: firstly, whether the proposed physiotherapy treatment was obtained, or would be obtained, "in relation to" Ms Bennett's accepted injury; secondly, if so, whether the treatment constituted "medical treatment"; and thirdly, if it was medical treatment, whether it was "reasonable in the circumstances" for Ms Bennett to obtain it.

The Tribunal concluded that the proposed physiotherapy treatment, even if undertaken, would not be considered "in relation to" Ms Bennett's accepted injury as required by section 16 of the Act. Consequently, the Tribunal found it unnecessary to consider the further issues of whether the treatment qualified as "medical treatment" or whether it was "reasonable in the circumstances" to obtain. The decision affirmed Comcare's determination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The matter was heard in Perth on 13 June 2017. The parties were represented as follows:·Ms Bennett appeared in person, represented by Counsel, Mr David Bruns. Mr Bruns was instructed by Ms Kate Dempster, from JDK Legal Services; and·Comcare was represented by Counsel, Mr Thomas Offer. Mr Offer was instructed by Ms Allyson Ladhams, from the Australian Government Solicitor.Evidence before the Tribunal The Tribunal received the following evidence:·Ms Bennett’s statement dated 15 March 2017 (A1);·Ms Bennett’s supplementary statement dated 10 May 2017 (A2);·Report of Dr Evan Jenkins, General Practitioner, dated 23 November 2016, with accompanying letter of instruction from JDK Legal Services dated 23 November 2016 (A3);·T Documents (R1);·Anatomical diagram (R2);·Joint statement prepared by Dr Farham Shahzad, Consultant Occupational Physician and Dr Evan Jenkins dated 31 May 2017, with accompanying request letter prepared by the Australian Government Solicitor dated 12 May 2017 (R3);·Report by Dr Shahzad dated 31 October 2016 with accompanying letter of instruction prepared by the Australian Government Solicitor dated 13 October 2016 (R4);·Supplementary report by Dr Shahzad dated 29 December 2016 with accompanying letter of instruction prepared by the Australian Government Solicitor dated 15 December 2016 (R5); and·Clinical Framework for the Delivery of Health Services (R6). Ms Bennett gave oral evidence at hearing. The Tribunal also heard oral evidence, given concurrently, from Drs Shahzad and Jenkins. Relevant aspects of the evidence and material before the Tribunal will be referred to below.Ms Bennett At the hearing, Ms Bennett gave oral evidence to the Tribunal in person. Ms Bennett had earlier provided a statement dated 15 March 2017 (A1) and a supplementary statement dated 10 May 2017 (A2). Ms Bennett gave evidence before the Tribunal that when she attended physiotherapy in the past (prior to the reviewable decision), the therapist mainly worked on her neck area and performed manipulation and mobilisation movements with their hands. Ms Bennett said that in more recent times, the physiotherapist still works on the same areas, although they don’t ‘do as much’ with her neck. Ms Bennett says the physiotherapist usually works on her shoulders and ‘low neck to back’ areas and on the top of the right shoulder ‘going a bit over the back.’ Ms Bennett said she used to attend for physiotherapy treatment ‘reasonably often’ in the early stages, but this has ‘settled down over the years.’ Ms Bennett said that for the last few years, she would attend three sessions of physiotherapy every few months, maybe every two months. Ms Bennett described the benefits she experiences from physiotherapy treatment as the feeling of ‘tightness’ having been relieved from the top of the shoulder to the neck and into the trapezius muscle. Ms Bennett said she took Mersyndol (pain relief) at night, which helps with her pain, however the Mersyndol ‘does not have the same effect’ as physiotherapy. Ms Bennett said she has tried ‘lots of pills’ for headaches but ‘nothing else works.’

Decision

Reasons for decision

On 6 July 2016, a Comcare delegate affirmed the determination of 17 May 2016 (‘reviewable decision’). The delegate stated in the reviewable decision that she did not consider that the proposed physiotherapy treatment was consistent with the principles of the Clinical Framework for the Delivery of Health Services. The delegate also stated, having reviewed the available evidence (T123 at 287):“…I find that physiotherapy is not effective, empowering to you, goal focused, evidence based or has a biopsychosocial approach. This means I cannot find that the treatment can be clinically justified, or is reasonable for you to undertake in your circumstances.” On 11 July 2016, Ms Bennett sought review of the reviewable decision. In her application, Ms Bennett states that she considers the reviewable decision to be wrong on the basis that physiotherapy treatment is reasonable treatment as recommended by her treating practitioners (T1).RELEVANT LEGISLATION As Ms Bennett’s injury was sustained on 15 March 1985, liability was accepted under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (‘1971 Act’). By section 124 of the Act[1], Ms Bennett’s entitlement to compensation for medical treatment is determined under section 16 of the Act.[1] The Tribunal also notes the comments by Deputy President Bean in MacDonald and Comcare (Compensation) [2016] AATA 1049 at [10] with regard to the effect of section 124 of the Act as well as the other transitional provisions in the Act more generally. Relevantly, subsection 16(1) of the Act provides:16 Compensation in respect of medical expenses (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.[emphasis added] The term ‘injury’ in relevantly defined in subsection 5A(1)(b) of the Act to mean an injury other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment.ISSUES FOR DETERMINATION The key issue for the Tribunal is whether Comcare is liable to pay Ms Bennett compensation pursuant to section 16 of the Act in respect of her accepted injury. This issue requires the Tribunal to consider the following:(a)whether the proposed physiotherapy treatment was or would be obtained ‘in relation to’ Ms Bennett’s accepted injury;(b)if so, whether the physiotherapy treatment received by Ms Bennett is ‘medical treatment’; and(c)if so, whether it is ‘reasonable in the circumstances’ for Ms Bennett to obtain the proposed physiotherapy treatment,in accordance with subsection 16(1) of the Act. The Tribunal has concluded below that the proposed physiotherapy treatment, if obtained, would not be ‘in relation to’ Ms Bennett’s accepted injury in accordance with section 16 of the Act. Accordingly, the Tribunal has not addressed the legislation nor considered the issues relevant to whether the physiotherapy treatment received by Ms Bennett is ‘medical treatment’ and if so, whether it is ‘reasonable to obtain in the circumstances’. It is not required to do so.

Ratio Decidendi

Legal Principle Established

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