Bhat and Comcare (Compensation) - [2018] AATA 2094

Bhat and Comcare (Compensation) [2018] AATA 2094 (5 July 2018)
Division: GENERAL DIVISION
File Number(s): 2016/2466
2016/6982

Re:Shashi Bhat
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:5 July 2018
Place:Sydney

2016/2466
The reviewable decision dated 16 March 2016 is affirmed.
2016/6982
The reviewable decision dated 21 November 2016 is affirmed.
...................[sgd].................................................
Senior Member A Poljak
CATCHWORDS
COMPENSATION – workers compensation – chronic back pain – section 16 claim –physiotherapy treatment – treatment provides temporary alleviation not permanent improvement – no other medical treatment recommended – section 19 claim – incapacity for work – applicant fit for normal work duties – decisions under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16, 19
CASES
Bashar v Comcare [2002] FCA 837
Chowdhary v Comcare [1998] AATA 448
Comcare Australia v Rope (2004) 135 FCR 443
Comcare v Holt (2007) 94 ALD 576
REASONS FOR DECISION
Senior Member A Poljak
5 July 2018

Mr Shashi Bhat, the applicant, has been employed by the Australian Taxation Office (“ATO”) since 2003 as a Customer Service Representative.
On 18 December 2009, the applicant suffered a ‘lumbar sprain’ at work when his desk chair failed (“compensable condition”). On 5 March 2010, the respondent accepted liability to pay compensation to the applicant pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). Liability was also accepted to pay compensation pursuant to section 16 of the Act in respect of medical treatment obtained in relation to the compensable condition, up to and including 8 January 2010. Further determinations have also been issued accepting liability to pay compensation to the applicant for various treatments pursuant to section 16 of the Act.
The applicant has received compensation under section 16 of the Act in respect of 67 sessions of physiotherapy treatment and 44 sessions of massage treatment.
On 21 January 2016, the ATO, as delegate for the respondent, issued a determination stating that physiotherapy treatment received by the applicant was no longer reasonably required in relation to the compensable condition in accordance with section 16 of the Act. Following reconsideration, the ATO affirmed the determination on 16 March 2016. This is the first application under review in these proceedings (“2016/2466”; “first application”).
On 14 September 2016, the ATO, as delegate for the respondent, issued a determination stating that the applicant had no present entitlement to compensation in respect of incapacity benefits under section 19 of the Act and no entitlement to compensation in respect of medical treatment under section 16 of the Act for the compensable condition. Following reconsideration, the ATO affirmed the determination on 21 November 2016. This is the second application under review in these proceedings (“2016/6982”; “second application”).
The issues for determination in these proceedings are as follows:
(a)whether the applicant continues to suffer the effects of the compensable condition; and if so,
(i)whether the compensable condition continues…

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 Bhat and Comcare (Compensation)

Details

AGLC: Bhat and Comcare (Compensation) [2018] AATA 2094
Case: [2018] AATA 2094
Decision Date: 5 July 2018

CaseChat Overview and Summary

This matter concerned an application by the applicant, Mr. Bhat, against Comcare regarding a claim for workers' compensation for chronic back pain. The core dispute revolved around whether the applicant continued to suffer the effects of his compensable condition, and consequently, whether he remained entitled to physiotherapy treatment and compensation for incapacity for work. The proceedings were heard by A. Poljak SM.

The court was required to determine several key issues. Firstly, it needed to ascertain if the applicant still suffered from the effects of his compensable condition. If so, the court had to decide whether this condition necessitated physiotherapy treatment after 3 February 2016 and any other medical treatment after 1 October 2016, pursuant to section 16 of the relevant Act. Finally, the court had to determine if the applicant's condition resulted in incapacity for work after 14 September 2016, under section 19 of the Act.

In reaching its decision, the court considered medical evidence, including reports from an occupational physician, an orthopaedic surgeon, and a rheumatologist, as well as MRI scans. The medical assessments indicated that while the applicant experienced chronic lower back pain and had developed fear avoidance behaviour, there were no objective findings of significant change in his condition since 2011. Notably, an occupational physician found no medical reason for work restrictions and recommended a return to full pre-injury duties. The court found that the applicant's condition did not result in incapacity for work from 14 September 2016 onwards.

Consequently, the court affirmed the reviewable decisions made on 16 March 2016 and 21 November 2016.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues for determination in these proceedings are as follows:(a)whether the applicant continues to suffer the effects of the compensable condition; and if so,(i)whether the compensable condition continues to result in a requirement for physiotherapy treatment pursuant to section 16 of the Act after 3 February 2016;(ii)whether the compensable condition continues to result in a requirement for medical treatment generally pursuant to section 16 of the Act after 1 October 2016; and(iii)whether the compensable condition continues to result in incapacity for work pursuant to section 19 of the Act after 14 September 2016.Medical Evidence and Continuation of Effects of Compensable Condition The applicant claims that since he returned to work in about the middle of February 2010, he has continuously suffered background back pain and also suffers flare-ups of more intense pain on occasion. He states that when he experiences pain flare-ups, it has been necessary for him to take time off from work. Dr Matthew Paul, an independent occupational physician, assessed the applicant on 9 June 2010, and provided a report dated 24 June 2010. Dr Paul recorded that the applicant said his pain was present at 1/10 severity with occasional aggravations resulting in 2/10 severity. He noted that the applicant reported his pain worsened over time however, he noted that the applicant was capable of taking leave and going on holiday to India in January for 6 weeks and was able to tolerate the more than 10 hour flight. On informal examination, Dr Paul noted that the applicant sat comfortably in the waiting room, walked easily, sat comfortably throughout the 60 minute interview and at no time appeared to be in any discomfort and he moved easily throughout the examination. Dr Paul assessed the applicant as having chronic lower back pain and that the applicant has developed fear avoidance behaviour. He stated that there was no medical reason why the applicant should be restricted from any activity at work. Dr Paul recommended that the applicant return to his full pre-injury duties without any restrictions. An MRI report of the applicant’s lumbar spine dated 2 August 2011, showed disc desiccation at L4/5 and L5/S1 with bulging at both levels but no neural compression. It appears that on 24 August 2016, the applicant underwent a further MRI of his lumbar spine. I do not have a copy of the radiological report available in evidence. However, Dr Matthew Giblin, Orthopaedic Surgeon, records in his report dated 31 August 2016, “the MRI showed no significant change compared to the 2 August 2011. He still has disc desiccation at L4/5 and L5/S1 and a small annular tear at L5/S1”. Associate Professor Neil McGill, consultant rheumatologist, notes in his report dated 1 December 2016, that the applicant provided him with imaging studies conducted on 24 August 2016. He notes that the MRI of the applicant’s lumbar spine showed “exactly the same findings as those demonstrated in August 2011”.

Decision

Reasons for decision

Accordingly, for all of the above reasons I find that the applicant no longer suffers from incapacity for work as a result of the compensable condition on and from 14 September 2016. Decision For all the above reasons I affirm the reviewable decisions dated 16 March 2016 and 21 November 2016.

Ratio Decidendi

Legal Principle Established

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