Cremona and Comcare (Compensation) - [2015] AATA 971

Cremona and Comcare (Compensation) [2015] AATA 971 (16 December 2015)

Division

GENERAL DIVISION

File Number(s)

2015/0178

Re

Maria Cremona

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member McCabe

Date 16 December 2015

Place Brisbane
The decision under review is affirmed.

............................[Sgd].......................................
Senior Member McCabe
Catchwords
WORKER’S COMPENSATION – somatization disorder – whether physiotherapy is compensable medical treatment – compensable treatment must have therapeutic purpose – physiotherapy not obtained in relation to the injury
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16
REASONS FOR DECISION
Senior Member McCabe
16 December 2015

Ms Maria Cremona had an accident at work in 1998. She sustained a number of physical injuries. Comcare accepted liability for those injuries under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Comcare subsequently accepted liability for a somatization disorder. In more recent times, Comcare has been paying for physiotherapy sessions pursuant to s 16 of the Act. In its reviewable decision dated 4 December 2014, Comcare confirmed it would not continue paying for physio sessions after 22 June 2015. The applicant has asked the Tribunal to review that determination.
Comcare says physiotherapy is not an appropriate treatment for a somatization disorder. Using the language of the Act, Comcare denies physiotherapy is a medical treatment in the circumstances of this case. It also denies the treatment was “obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances)”: s 16.
I am not satisfied physiotherapy is reasonable medical treatment for the purposes of the Act. It follows Ms Cremona cannot succeed. I explain my reasons below.
What is medical treatment?
Comcare is not obliged to pay for every treatment demanded by an injured person. To begin with, s 16 refers to a liability to pay for medical treatment, as opposed to other forms of treatment or assistance. The expression medical treatment is defined in s 4. It includes “therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor…” [Emphasis added]. The requirement that the treatment in question must be therapeutic excludes treatments – including treatments provided by a physiotherapist – that do not have a therapeutic purpose.
What ails Ms Cremona?
Ms Cremona experiences pain and other physical symptoms for which there is no clear organic cause. The medical evidence tends to suggest whatever physical damage she sustained in the 1998 accident has long since resolved: see, for example, the report of Dr Thomas Davis dated 3 February 1999 (exhibit one at pp 30-36). These days, she suffers from a somatization disorder, which is a psychiatric condition. (Dr Varghese, the consultant psychiatrist called by Comcare, questioned whether Ms Cremona also suffered from dysthymia. There is no evidence of any other serious medical problem, as opposed to psychiatric issues that may generate physical symptoms.)
Ms Cremona has received regular treatment at the hands of a physiotherapist over a long period. She says she needs that treatment to…

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) [2015] AATA 971
Case: [2015] AATA 971
Decision Date: 16 December 2015

CaseChat Overview and Summary

Cremona sought compensation from Comcare for physiotherapy treatment related to a work-related injury. The matter was heard by the Administrative Appeals Tribunal (AAT). The applicant argued that the physiotherapy provided was a form of medical treatment for her work-related injury and should be compensated. Comcare, on the other hand, contended that the physiotherapy was not a compensable medical treatment as it did not have a therapeutic purpose in relation to the injury.

The legal issues before the tribunal were whether physiotherapy provided to the applicant was a compensable medical treatment and, if so, whether it was reasonable for the applicant to obtain such treatment at Comcare’s expense. The tribunal needed to determine if the physiotherapy had a therapeutic purpose in relation to the injury and if it was reasonable for the applicant to obtain it under the circumstances.

The tribunal found that the physiotherapy did not have a therapeutic purpose in relation to the applicant’s injury. The tribunal accepted that physiotherapy could be considered a form of medical treatment but determined that it was not reasonable for the applicant to obtain it under the circumstances. The applicant only experienced temporary relief and showed limited improvement in her condition over a long period of treatment. The evidence of the applicant's treating physiotherapist and an expert witness confirmed that the treatment was counterproductive. The tribunal concluded that it was difficult to justify the expense of continued treatments when the applicant could self-manage her condition and when expert evidence indicated that the treatment was counterproductive.

The tribunal affirmed the decision under review, denying compensation for the physiotherapy treatment provided to the applicant.

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

Even if I accepted physiotherapy was a medical treatment in relation to the applicant’s work-related injury, I am not satisfied it would be reasonable for her to obtain it in the circumstances. The applicant thinks she needs it, and that it helps – but she acknowledges she only ever obtains temporary relief and there is limited evidence of any improvement in her condition following a long period of treatment. I note Ms Cremona’s treating physiotherapist, Ms Kim Bull, doubted whether the applicant would derive significant benefit from further sessions. Ms Bull said in her oral evidence and in her statement that Ms Cremona “should now be able to self-manage her condition”: exhibit 2. It would be difficult to justify the expense of continued treatments in those circumstances. But the evidence of Dr Varghese confirms the treatment is counterproductive. It cannot be reasonable for Ms Cremona to obtain treatment at Comcare’s expense when the most credible, well-informed expert available to me said it is counterproductive. Conclusion The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number(s)	2015/0178
Re	Maria Cremona
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member McCabe
Date	16 December 2015
Place	Brisbane