Blackwell and Comcare (Compensation) - [2017] AATA 1357

Blackwell and Comcare (Compensation) [2017] AATA 1357 (28 August 2017)
Division:GENERAL DIVISION
File Number(s): 2015/3123
Re:Kym Blackwell
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:28 August 2017
Place:Brisbane

The decision under review is affirmed.
.......................[sgd]..........................................
Senior Member T. Tavoularis
CATCHWORDS
COMPENSATION – medical treatment – therapeutic treatments – previously accepted injury –where Applicant claimed additional physiotherapy, gym treatment, massage and Pilates – whether treatments were “therapeutic” – whether treatments were reasonable in the circumstances – treatments were not “therapeutic” – treatments not reasonable in the circumstances – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 16
CASES
Alamos and Comcare
[2014] AATA 629

Chowdhary and Comcare
[1998] AATA 448
Comcare v Holt [2007] FCA 405
Comcare v Rope (2004) 135 FCR 443

Durham and Comcare
[2014] AATA 753
Re Jorgensen and Commonwealth (1990) 23 ALD 321

Popovic and Comcare
[2000] AATA 264
SECONDARY MATERIALS
Clinical Framework for the Delivery of Health Services
REASONS FOR DECISION
Senior Member T. Tavoularis
28 August 2017
INTRODUCTION

Ms Kym Blackwell (“the Applicant”) seeks review of a decision made by Comcare (“the Respondent”) to deny liability under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for several treatments she is receiving or seeking to receive to treat various work-related injuries she has suffered.
The Applicant first suffered a work-related injury in February 2002, when she fell whilst walking home from work at a Commonwealth Government agency. The Respondent accepted liabilities for the following of the Applicant’s claimed conditions resulting from that fall:[1]
(a)Unspecified disc disorder;
(b)Left ankle sprain;
(c)Wrist sprain (bilateral);
(d)Left knee and leg sprain;
(e)Open wounds; and
(f)Major depressive disorder, single episode.
[1] Exhibit 3, T Documents, T 11, p 120.
The Applicant successfully returned to work after suffering these injuries. However, she again suffered some work-related injuries in July 2009, while pulling a file from a shelf. The Respondent accepted liabilities for the following of the Applicant’s injuries resulting from this incident:[2]
(a)Wrist sprain (right);
(b)Hand sprain (right);
(c)Disorder of bursae and tendons in the right shoulder region.
[2] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), [6].
The matter presently before the Tribunal does not relate directly to these claims. Rather, it relates to the question of whether the treatment the Applicant now seeks compensation for is compensable by the Respondent in light of the fact it has accepted liability for these injuries. The source of the Applicant’s claims is a Medical Certificate provided to the Respondent by Dr Glenda McDonald, the Applicant’s treating General Practitioner.[3] In this Medical Certificate, Dr McDonald named the following treatments the Applicant was receiving in relation to her injuries:[4]
[3] Exhibit 3, T Documents, T 8, p 108.
[4] Ibid.

Medical Treatment

Frequency

Reason

End/Review Date

Psychiatric Clinic

Directed by Dr Likely

Severe chronic refractory major depressive disorder, chronic pain and insomnia, paraethesia, and associated injuries

Ongoing indefinitely

Psychiatrist, Psychologist and Medical Practitioner

Weekly, fortnightly &…

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 Blackwell and Comcare (Compensation)

Details

AGLC: Blackwell and Comcare (Compensation) [2017] AATA 1357
Case: [2017] AATA 1357
Decision Date: 28 August 2017

CaseChat Overview and Summary

This matter concerned an application by the Applicant, Ms. Blackwell, for compensation from Comcare for additional medical treatments, specifically physiotherapy, gym sessions, massage, and Pilates, following a workplace injury sustained over fifteen years prior. The dispute centred on whether these claimed treatments were "therapeutic" and "reasonable" in the circumstances, as required by section 16 of the relevant Act. The decision was made by T. Tavoularis SM.

The court was required to determine two primary legal issues: first, whether the claimed treatments constituted "therapeutic" treatment in relation to the Applicant's accepted workplace injury; and second, whether these treatments were reasonable for the Applicant to continue to obtain in the circumstances. The court also considered the application of the Clinical Framework as a reference for assessing the objective reasonableness of medical treatment.

The court reasoned that the claimed ongoing treatments, including additional physiotherapy, Pilates, gym sessions, and massage, were unlikely to achieve any curative outcome. It found that the treatments appeared to be more for the purpose of managing a perceived psychological distress at the thought of cessation rather than for measurable physical benefit. Furthermore, the court noted an inadequate focus on an overall health management plan as an alternative means of improving the Applicant's condition. The court agreed with the Respondent's contentions that the claimed treatments were not obtained in relation to the injury and were not reasonable to continue obtaining, particularly in light of the lack of positive application of the Clinical Framework's principles by the Applicant's medical practitioners to justify these ongoing, seemingly infinite, treatments.

Consequently, the court affirmed the decision under review, denying compensation for the increased physiotherapy and the claimed Pilates, gym, and massage services.

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

On the available evidence, I can only conclude that there would be little, if any benefit in the Applicant undertaking massage therapy. Having regard to the cost involved in this, and to the potential for the Applicant to become dependent upon this additional form of therapy, I do not consider that massage treatment constitutes a reasonable course of treatment for the Applicant. Summary of Findings About the Medical Evidence My findings as to the totality of the medical evidence are predicated on two things. First, the abovementioned requirement to meet the elements of s 16 of the Act. Secondly, the requirement for all of the claimed treatments to meet the requirements of the relevant Clinical Framework. First, with initial reference to s 16 of the Act, I have misgivings about, and difficulty in, supporting any finding that ongoing provision of the claimed treatments is suitable or necessary to alleviate the symptoms of her workplace injury[33] that occurred over fifteen years ago, in 2002. Viewed holistically, the totality of her medical evidence seems to be:(a)There is no prospect of ongoing treatments in the form of extra physiotherapy, Pilates, gym sessions and massage ever achieving any curative outcome or similar effect;(b)That ongoing provision of any of these treatments would be more for the purpose of her dealing with a perceived psychological calamity or crisis at the thought of cessation of such treatments, as opposed to any measurable physical benefit; and(c)There has been an inadequate focus on the implementation of an overall health management plan as an alternate means of improving her condition;[33] In fact, it was a deemed workplace injury because the Applicant sustained her injuries as the result of a fall while walking home from work. I note that the Applicant suffered a second workplace injury in 2009, too. Secondly, with reference to the Clinical Framework, none of the Applicant’s medical practitioners positively apply the principles of the Clinical Framework when seeking to justify the continued provision of the claimed treatments. Their evidence – predominantly – is that provision of the ongoing claimed treatments will most likely be remedial, not curative. None of her medical practitioners apply the guiding principles in the Clinical Framework to arrive at any alternate means of symptomatic management other than ongoing and seemingly infinite treatments in the form of physiotherapy, Pilates, gym programs and massage. In my view, this is not the basis on which a decision-maker in my position must determine this matter. On a best case scenario for the Applicant, the net sum gain from this application would be: (1) an increase from 1 hour to 1.5 hours a week of physiotherapy; and (2) 1 hour a week each of Pilates, gym and massage services.[34] The Respondent contends that compensation for (1) any increase in weekly physiotherapy; and (2) 1 hour per week each of Pilates, gym and massage services, should be denied to this Applicant. The further contention of the Respondent is that the Clinical Framework, although not official government policy, is an appropriate reference for the measurement of the objective reasonableness of medical treatment. I agree with both of the Respondent’s contentions.[34] This is in addition to the accepted 1 hour a week of physiotherapy.

Decision

Reasons for decision

I therefore also agree with the Respondent’s contentions to the effect that for the requirements of s 16 of the Act, the claimed increase from 1 hour to 1.5 hours a week of physiotherapy, and the claimed 1 hour a week each of Pilates, gym and massage services:[45](a)Are not treatments “obtained in relation to the injury”; and(b)Are not treatments that are reasonable for the Applicant to continue to obtain in the circumstances. [45] In addition to the accepted 1 hour per week of physiotherapy.CONCLUSION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medical Treatment	Frequency	Reason	End/Review Date
Psychiatric Clinic	Directed by Dr Likely	Severe chronic refractory major depressive disorder, chronic pain and insomnia, paraethesia, and associated injuries	Ongoing indefinitely
Psychiatrist, Psychologist and Medical Practitioner	Weekly, fortnightly &…