Cremona and Comcare (Compensation) - [2017] AATA 1363

Cremona and Comcare (Compensation) [2017] AATA 1363 (25 August 2017)
Division:GENERAL DIVISION
File Number(s): 2015/6367
Re:Maria Cremona
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:25 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 suffered from somatization disorder – where Applicant claimed physical treatments – 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
PRACTICE AND PROCEDURE – where Applicant had a claim previously determined by the Tribunal – where current application pre-dated previous Tribunal decision – whether issues the same – whether there was a “good reason” to re-litigate the issues – re-litigation allowed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 16
Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 43
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
Cremona and Comcare [2015] AATA 971

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

Popovic and Comcare
[2000] AATA 264
Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80
SECONDARY MATERIALS
Clinical Framework for the Delivery of Health Services
REASONS FOR DECISION
Senior Member T. Tavoularis
25 August 2017
INTRODUCTION

Ms Maria Cremona (“the Applicant”) is seeking review of a decision by Comcare (“the Respondent”) dated 5 November 2015 that it was not liable to pay compensation to her under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) in relation to the following treatments for the Applicant’s accepted somatization disorder:
(a)Physiotherapy;
(b)Podiatry; and
(c)Massage treatment.
These claims – and the Applicant’s condition – stem from an incident in 1998 where the Applicant injured herself in the workplace. Although her physical injuries from that incident healed, the Applicant has developed ongoing psychological injuries, which have not.
Importantly for present purposes, the Applicant has been diagnosed with somatization disorder,[1] which manifests itself in the Applicant feeling pain in her back, legs and hand.[2] The crucial thing to note about somatization disorders is that, although they usually take the form of pain of one kind or another, that pain is purely psychological in terms of its genesis: the pain people with somatization disorders suffer from is entirely lacking in a physiological basis. However, it is for this pain that the Applicant claims the physiotherapy, podiatry and massage treatments.
[1] See e.g. Exhibit 1, T Documents, T 180, p 344.
[2] Ibid, T 187, p 354.
Although it initially accepted liability to pay for, inter alia, physiotherapy for the Applicant, the Respondent empanelled a “Clinical Panel Review” to determine its ongoing liability to pay for that treatment. This Panel determined that the Respondent would pay the Applicant compensation for the cost of physiotherapy for…

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) [2017] AATA 1363
Case: [2017] AATA 1363
Decision Date: 25 August 2017

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, Ms Cremona, against a decision by Comcare. The dispute centred on whether certain physical treatments, specifically massage, physiotherapy, and podiatry, constituted "therapeutic treatment" and were "reasonable in the circumstances" for the Applicant's previously accepted injury, for which Comcare was liable to compensate. The decision was made by Senior Member T. Tavoularis.

The legal issues before the court were whether the physical treatments sought by the Applicant qualified as "therapeutic treatment" under the relevant legislation, and whether these treatments were reasonable in the Applicant's specific circumstances. The court was also required to consider whether there was a "good reason" to re-litigate issues that had been the subject of a previous determination by the Tribunal, noting that the current application pre-dated that previous decision.

The Senior Member reasoned that while the Applicant might derive a minor, short-term benefit from the treatments, the evidence indicated that the physical treatments were actively hindering her recovery and had led to a dependency. Consequently, the treatments were found not to be "therapeutic" in nature, nor were they considered reasonable in the Applicant's circumstances. The Senior Member concluded that Comcare was not liable under section 16 of the Act to compensate the Applicant for these treatments. The decision under review was affirmed.

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

Full text does not contain this section.

Decision

Reasons for decision

In weighing up these factors, it is clear the best case for the Applicant is that she would get a minor benefit from continuing treatment into the long term, for a cost of between $40-$70 per session, around once per week. The truth, however, is that the physical treatment the Applicant seeks is actively setting her recovery back, and has already reached a stage where the Applicant is dependent upon it, at some cost to the Respondent (and thus to the Australian taxpayer). Consequently, I find that massage, physiotherapy and podiatry are not reasonable treatments for the Applicant in her circumstances.CONCLUSION The Applicant’s treatments neither meet the threshold to be “therapeutic treatment” nor that of being reasonable treatment in her circumstances. Consequently, the Respondent is not liable under s 16 of the Act to compensate the Applicant for her physiotherapy, massage or podiatry treatments. The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.