Cremona and Comcare (Compensation) - [2018] AATA 3598

Cremona and Comcare (Compensation) [2018] AATA 3598 (21 September 2018)
Division:GENERAL DIVISION
File Numbers: 2017/4996 & 2017/6751
Re:Maria Cremona
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:21 September 2018
Place:Brisbane

The decisions under review are affirmed.
.....................[sgd]...................................................
Senior Member Theodore Tavoularis
CATCHWORDS
COMPENSATION – where Applicant suffers from somatization disorder – where Applicant has been in receipt of gardening and household services – where Applicant seeks compensation for an MRI – whether Applicant continues to suffer from somatization disorder – whether the Applicant reasonable requires gardening and household services as a resolute of her accepted condition – whether the MRI scan constitutes medical treatment – whether the MRI scan is treatment obtained in relation to the Applicant’s accepted injury – whether it was reasonable for the Applicant to obtain an MRI in the circumstances – decisions under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 43
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 14, 16, 29
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
Re Jorgensen and Commonwealth (1990) 23 ALD 321
REASONS FOR DECISION
Senior Member Theodore Tavoularis
21 September 2018
INTRODUCTION

There are two applications before the Tribunal. The first (2017/4996) seeks review of a decision to determine that compensation is not payable for (1) household services for three hours per week; and (2) gardening services for two hours per week for the period 6 October 2016 to 6 October 2017. These services were being funded by the Respondent pursuant to s 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”).
The second application (2017/6751) seeks review of a decision denying liability under s 16 of the SRC Act on the part of the Respondent to compensate the Applicant for an MRI scan of her lumbar spine and her knee.
DETERMINATION OF THE APPLICATIONS
For the Tribunal to ascertain whether the household and gardening services were payable in the period ending 6 October 2017, the Tribunal must examine three issues:
(a)Whether the Applicant continues to suffer from the accepted somatization disorder;
(b)If this question is answered in the affirmative, whether the Applicant – “as a result of” – this accepted somatization disorder reasonably requires such household services; and
(c)If this question is answered in the affirmative, what amount of such services per week is “reasonable in the circumstances”?
In relation to compensation for the MRI scan, the three issues for determination by the Tribunal are:
(a)Whether the MRI scan constitutes medical treatment under the SRC Act;
(b)If question (a) is answered in the affirmative, whether the MRI scan is treatment obtained “in relation to the injury”; and
(c)Whether it was reasonable to obtain that treatment in the circumstances.
HISTORY OF THESE APPLICATIONS
The Applicant has a lengthy history with the Tribunal. She was originally injured while working for AusAid. On 12 February 1998…

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 Cremona and Comcare (Compensation)

Details

AGLC: Cremona and Comcare (Compensation) [2018] AATA 3598
Case: [2018] AATA 3598
Decision Date: 21 September 2018

CaseChat Overview and Summary

This matter concerned an application for review before the Administrative Appeals Tribunal, brought by the Applicant, Ms Cremona, against Comcare. The Applicant sought compensation for household and gardening services and for an MRI scan, alleging these were reasonably required as a result of her accepted somatisation disorder. Comcare had affirmed decisions denying these claims.

The Tribunal was required to determine whether the Applicant continued to suffer from somatisation disorder, whether she reasonably required gardening and household services as a result of this condition, whether the MRI scan constituted medical treatment, and if so, whether it was treatment obtained in relation to her accepted injury and whether it was reasonable in the circumstances.

The Tribunal found that while the Applicant did suffer from somatisation disorder, expert evidence indicated that the nature of this disorder precluded a finding of physical disability that would necessitate household and gardening services. The disorder was characterised as a compulsion or propensity to "do" rather than "have" or "suffer" from a condition, with the individual seeking acknowledgement of physical problems or obtaining a benefit. The Tribunal accepted that the Applicant's behaviour was consistent with this, and that providing such services would perpetuate her behaviour. Regarding the MRI scan, the Tribunal determined it constituted medical treatment, but was not obtained in relation to the accepted injury, nor was it reasonable in the circumstances of the Applicant's condition.

Consequently, the Tribunal affirmed Comcare's decisions, finding that the Applicant did not require household or gardening services as a result of her accepted somatisation disorder, and that the MRI scan was not objectively reasonable. The claims for compensation under both section 29 and section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) were dismissed.

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

In relation to the issues requiring determination pursuant to s 16 of the SRC Act, I address each of those issues as follows: (a)Does the MRI scan constitute medical treatment under the SRC Act: Answer: Yes.(b)If question (a) is answered in the affirmative, is the MRI scan treatment obtained “in relation to the injury”: Answer: No.(c)Was it reasonable to obtain that treatment in the circumstances? Answer: No.CONCLUSION It cannot be said that the Applicant requires household or gardening services as a result of her accepted somatization disorder. The claim for compensation pursuant to s 29 of the SRC Act therefore fails. The MRI scan is not objectively reasonable in the subjective circumstances of the Applicant’s accepted somatization disorder. The claim for compensation pursuant to s 16 of the SRC Act therefore also fails. In accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), I affirm both: (a)the reconsideration of own motion dated 5 July 2017; and(b)the reviewable decision dated 6 October 2017.

Ratio Decidendi

Legal Principle Established

The Respondent affirmed this decision on 6 October 2017.[13] The Applicant subsequently sought review of this decision. [13] Exhibit 5, T-Documents for file 2017/6751, T40, pp 129-133.CONSIDERATION1. Is the Respondent liable to pay for household and gardening services pursuant to s 29 of the SRC Act? There is no resistance from the Respondent about the Applicant continuing to suffer from the accepted somatization disorder. I am similarly satisfied that she does indeed suffer from that ailment. The expert evidence of Dr Varghese is, to my mind, decisive. His evidence is to the effect that due to its very nature, somatization disorder precludes any finding of a physical disability such that could give rise to a need for the claimed assistance. The behaviour and demeanour of the Applicant matches Dr Varghese’s evidence of how somatization disorder manifests. The Applicant is behaving in such a way that she has convinced herself and consequently seeks to convince others that she would improve or be assisted by the Respondent’s paid household and gardening services. Dr Varghese’s further evidence addresses the consequences of yielding to the request for provision of such services: it would only serve to reinforce and perpetuate this behaviour of insisting she had something physically wrong with her. The Applicant did not call any evidence to refute this. In addition to receiving and accepting Dr Varghese’s evidence about somatization disorder precluding any finding of a physical disability, it is also important to understand how the propounded symptoms manifest in the Applicant. The disorder is not a condition that patients “catch” or “acquire” and, in turn, can be said to “suffer” from. Somatization disorder is more in the form of a compulsion or propensity in someone to “do” something. As put by Dr Varghese: Her abnormal illness behaviour can be understood as something she “does” as against something she “has” or “suffers” from. It is in the nature of Somatisation/Somatoform Disorder that the individual seeks some acknowledgement that their problems are physical and that they are disabled or else there is a benefit to be obtained. This, of course, is precisely what is occurring with the Applicant. She propounds an assertion of physical affliction in the absence of any such diagnosis or finding and does so for the primary purpose of securing approval for provision of paid household and gardening services. At the hearing, the Applicant sought to cross-examine Dr Varghese to adduce some measure of concession from him that she did in fact suffer from a physical disability. She referred him to his report of 14 October 2015 wherein Dr Varghese said: Ms Cremona may well have Somatisation Disorder or other Somatoform Disorder but a neurological opinion is required as to whether there is any underlying neurological cause for her problems. Dr Varghese responded with words to this effect: this part of his report comprised a summary of his provisional observations. Dr Varghese then read the other medical reports and – as outlined later in his report – it was clear that there was no underlying neurological condition and hence the diagnosis of Somatoform Disorder.