D'Amico and Comcare (Compensation)

Case [2018] AATA 54

D'Amico and Comcare (Compensation) [2018] AATA 54 (19 January 2018)

Division:GENERAL DIVISION

File Number(s):      2016/4934

Re:Donato D'Amico

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:19 January 2018

Place:Canberra

The decision under review is affirmed.

........................................................................

Deputy President J Sosso

Catchwords

COMPENSATION – interpretation of the phrase “in relation to” in s 16 of the Safety, Rehabilitation and Compensation Act 1988 – threshold question whether massage treatment received by Applicant obtained “in relation to” original compensable injury – if there is conflicting medical evidence, on the balance, which is preferable – more weight given to specialist physicians expert in their field than to opinions of general practitioners or other unqualified persons – treating doctor may be more of an advocate than a dispassionate professional – definition of “medical treatment” and “therapeutic treatment” – aggravation of Applicant’s underlying condition brought about by original compensable injury now resolved – injury to back while moving furniture in 1984 – degenerative spinal disease and diabetes – reviewable decision affirmed.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4 and 16

Cases

D’Amico and Comcare [2007] AATA 77

Howes v Comcare [2016] FCA 1521

Kennon v Spry (2008) 238 CLR 366

Manns and Comcare [2012] AATA 462

Pratt and Comcare [2004] AATA 1281

Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

Workers Compensation Board v Technical Products Pty Ltd (1998) 165 CLR 642

REASONS FOR DECISION

Deputy President J Sosso

19 January 2018

INTRODUCTION

  1. Mr Donato D’Amico (the Applicant) was employed as a security attendant at the Old Parliament House when he injured his back on 1 May 1984 while moving furniture. It was accepted that he sustained a personal injury (lumbago pain) arising out of, or in the course of, his employment – Exhibit 1 T3 pp. 15 – 17.

  2. Apart from short periods when the Applicant attempted to return to work, he has been unable to engage in remunerative employment since that time. He is now 78 years of age.

  3. The background to both the Applicant’s injury and the history of the many forms of treatment he received for  both rehabilitation and relief of pain are set out in the decision of Senior Member Constance (as he then was) in D’Amico and Comcare [2007] AATA 77. As Senior Member Constance noted, the Applicant has tried the following forms of treatments: heat packs, wearing a brace, hydrotherapy, chiropractic treatment, laser treatment, physiotherapy, needle acupuncture, analgesic and neuralgic medication and massage – at [9] – [10].

  4. On 1 July 2016, in response to a claim for remedial massage, a determination was made by Comcare (the Respondent) denying liability to pay compensation for massage therapy under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) – Exhibit 1 T 27 pp. 92 – 93.

  5. The Respondent noted in the Determination that the Applicant had received, to that time, approximately 1016 massage sessions, and stated – Exhibit 1 T27 p. 93:

    “Taking into consideration Dr…

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D'Amico and Comcare (Compensation) [2018] AATA 54
Case
[2018] AATA 54
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal regarding a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988. The applicant, Mr. D’Amico, sought compensation for massage treatment. The core dispute revolved around whether this treatment was obtained "in relation to" a compensable injury sustained in a workplace incident in 1984.

The Tribunal was required to determine two key legal issues. Firstly, it had to ascertain the correct interpretation of the phrase "in relation to" as used in section 16 of the Act, and whether the massage treatment received by the applicant met this threshold. Secondly, if the threshold was met, the Tribunal would have needed to consider whether the massage treatment was reasonable in the circumstances, although this second issue ultimately did not require determination.

The Tribunal applied a broad and expansive interpretation to the phrase "in relation to," drawing on established case law which indicates the phrase is of wide import and should not be read down without compelling reason. The Tribunal noted that the phrase gathers meaning from its context, and in the context of beneficial legislation like the Act, a wide interpretation is favoured. The Tribunal considered that if Parliament intended a more restrictive meaning, such as treatment "of" the injury, it would have used more specific language. The Tribunal also considered conflicting medical evidence, giving more weight to specialist physicians over general practitioners, and noting that a treating doctor may act as an advocate. The Tribunal found that the applicant's underlying degenerative spinal condition, which was aggravated by the 1984 incident, had resolved many years prior and was now unrelated to that incident.

Having determined that the massage treatment was not obtained "in relation to" the original compensable injury, the Tribunal did not proceed to consider the reasonableness of the treatment. The decision under review, which affirmed the refusal of compensation for the massage treatment, was therefore 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

The term “therapeutic treatment” is defined in s 4(1) as including:“an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.”HISTORICAL MEDICAL EVIDENCE With the consent of the parties, the Tribunal admitted into evidence the T documents which were marked as Exhibit 1. These are the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. Included in those documents were medical reports prepared by various medical specialists over an extended period of time. In September 2003 the Applicant was examined by Dr Derrick Billett, Consultant Orthopaedic Surgeon. In his report dated 9 September 2003 Dr Billett made the following observations – Exhibit 1 T5 pp. 23-24:“Following the incident on 1 May 1984, Mr D’Amico experienced pain in the lumbar region. He has not resumed any gainful employment since that time.Since 1984 his lumbar pain has remained on a constant daily basis, although variable, accompanied by intermittent pain down his right leg to the foot, occurring during the course of the week, with paraesthesia in a similar manner. His treatment has been conservative.Quite surprisingly he had massage treatment for 15 years (up to two years ago), but I do not consider that this prolonged treatment would have been of any benefit. He has also been having laser treatment twice per week, since last year. However, I do not consider that this prolonged treatment would be of any benefit.The clinical examination has not produced any evidence of an intervertebral disc prolapse or nerve root irritation. The MRI studies have documented marked degenerative changes throughout the lumbar spine, in the facet joints, in the ligamentum flavum and in the discs themselves. These changes did not occur during the course of his work and are constitutional, age-related and degenerative in type.The incident of 1 May 1984 would not have led to these changes, nor would it have led to an increase in the anatomical components.In summary, the incident of May 1984 resulted in an aggravation of the pre-existing constitutional age-related degenerative changes in his lumbar spine, which are quite marked, the effects of which would have resolved many years. Thus, there is no further relationship to the incident of May 1984.I would attribute any pain he experiences to underlying pre-existing constitutional age-related degenerative changes in the discs and facet joints of his lumbar spine and any impairment would be due to the underlying degenerative changes…” The Applicant was also assessed by Dr Virginia Pascall, Occupational Physician, on 7 December 2005. In her extensive report, dated 20 January 2006, she made the following observations – Exhibit 1 T7 p. 36:“It is clear that Mr D’Amico has had symptoms from these degenerative changes since 1978, and that even with the incident at work, whilst there may have been a small injury or aggravation of these degenerative changes, was abating over several months only to have the degenerative changes aggravated on 31st July for reasons unrelated to work. According to the GP notes, there was a definite change for the worse in Mr D’Amico’s symptoms on 31st July.It is possible that there was a slight musculoligamentous injury in May 1984 because of the very sudden onset of symptoms, or there may have been some instability in his lumbar spine causing irritation of an already slightly arthritic facet joint. This aggravation had almost abated, as it required very little and probably no treatment, at the time that he experienced further flare up of the degenerative changes several months later.There has been no acceleration of the degenerative changes caused by any work-related (or any other) injury. These degenerative changes have continued gradually increasing and worsening as is their nature. Any aggravation that occurred due to the incident at work has long since resolved and had it not been superceded by a further, non-work-related aggravation, Mr D’Amico’s back pain caused by the work incident would have ceased by August/September 1984, particularly if he resumed his normal lifestyle sooner than he did.What Mr D’Amico experiences these days in the way of back pain and any referred pain into his legs is unrelated to the work circumstances apart from the problems caused by the condition being originally associated with a workers compensation claim and being further compounded by the inability to get him back into the workplace at the time. Unfortunately, his original treatment was overly conservative, compounding in Mr D’Amico’s thinking that he suffered a severe injury.”

Decision

Reasons for decision

Having determined the threshold question in favour of the Respondent, it is not necessary to proceed to the second question, namely whether massage therapy was a reasonable treatment to obtain in the circumstances.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Mr Radnedge also opined that the 1984 workplace accident had ongoing deleterious impacts on the Applicant’s condition.CONSIDERATIONIs the massage treatment obtained in relation to the injury? The threshold question to be determined is whether the medical treatment obtained by the Applicant (in this matter, massage therapy), is in relation to the workplace injury he sustained in 1984. The phrase “in relation to” has been given a broad and expansive interpretation by the Courts. In Kennon v Spry (2008) 238 CLR 366 Kiefel J (as she then was) opined (at [217]) that “in relation to” “is of wide and general import and should not be read down in the absence of some compelling reason to do so.” The expression is also to be understood contextually. In Workers Compensation Board v Technical Products Pty Ltd (1998) 165 CLR 642 at 653-654 Deane, Dawson and Toohey JJ observed:“The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends.” A helpful Tribunal determination on the proper interpretation of “in relation to” in the s 16 context is Pratt and Comcare [2004] AATA 1281. In that matter Comcare refused compensation for the cost of a stenting operation carried out five months after Mr Pratt suffered a myocardial infarct at work. Comcare accepted that the myocardial infarct was a compensable injury but determined that the stenting was not “medical treatment obtained in relation to the injury”. The Tribunal set aside the reviewable decision and gave the following reasons:“25. The phrase ‘in relation to’ in section 16 needs to be looked at in the context of being part of beneficial legislation and within a section which provides generally for the payment of medical expenses under the compensation scheme set up by the legislation…we should interpret the phrase widely unless the context requires it to be read down. Comcare contends that it should be interpreted as meaning that the medical treatment for which compensation is payable should be restricted to treatment ‘of’ the injury. On this argument the stenting procedure was treatment of the underlying condition and not treatment of the injury. We do not accept this argument. Had Parliament intended to restrict compensation for treatment in this way it could simply have said so by using the far more restrictive preposition ‘of’ rather than ‘obtained in relation to’.26. We find the cost of the whole of the stenting procedure is compensable. Dr Coles and Professor O’Rourke agreed that stenting would now be used to treat a myocardial infarct provided that the procedure could be undertaken within a short period of the injury occurring. In those circumstances clearly the procedure in part would be treatment of the infarct itself and part treatment of the underlying condition to reduce the risk of recurrences of an infarct. For the reasons stated above, the section should be interpreted broadly so as to include Mr Pratt’s treatment in this case. Dr Coles stated that the stenting was to prevent a recurrence of the injury and that it became necessary because of the injury Mr Pratt had already suffered. This is sufficient connection for the purposes of section 16 of the Act.”