Drummey and Comcare (Compensation) - [2016] AATA 738

Drummey and Comcare (Compensation) [2016] AATA 738 (23 September 2016)

Division

GENERAL DIVISION

File Number

2015/3792

Re

Jeffrey Drummey

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Deputy President I R Molloy

Date 23 September 2016

Place Brisbane
The Tribunal affirms the decision under review.
…………………[Sgd]…………………………….
Deputy President I R Molloy
Catchwords
COMPENSATION – Compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – claims for massage therapy and pharmaceuticals – medical treatment obtained in relation to an injury – whether treatment was reasonable to obtain – reviewable decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19
Cases
Drummey v Comcare [1997] AATA 789;
Popovic v Comcare [2000] AATA 264;
Bayani v Australian Postal Corporation [2015] AATA 342;
Alamos v Comcare [2014] AATA 629.
REASONS FOR DECISION
Deputy President I R Molloy
23 September 2016
INTRODUCTION

The applicant, Mr Drummey, has applied for review of a decision of Comcare (“the respondent”) dated 8 July 2015 affirming a determination dated 14 April 2014 denying his claims for massage therapy and pharmaceuticals under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act”).
BACKGROUND
Mr Drummey was born on 28 April 1957. He suffered an injury on 2 June 1992 for which liability to pay compensation under s 14 of the SCR Act was accepted in respect of “injury left scapular, back injury”.
Liability was subsequently ceased under ss 16 and 19 of the SRC Act but that decision was set aside and substituted with a decision that Mr Drummey was entitled to compensation under the SRC Act beyond November 1993.[1]
[1] Drummey v Comcare [1997] AATA 789.
Section 16(1) of the SCR Act provides that Comcare is liable to pay, in respect of the costs of medical treatment obtained in relation to an injury (being treatment that it was reasonable to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Massage therapy
Mr Drummey had been receiving treatment from Alfio Sorbello, a remedial massage therapist. Mr Sorbello said he first saw Mr Drummey when he walked in one day. He said he treated him for approximately seven years on a weekly basis until May 2015. The cost of treatment at that time was $81.32 per session.
The purpose of the treatment is pain relief. Mr Sorbello considers the treatment is “highly beneficial for reducing pain and freeing up the scapular and shoulder girdle to reduce tension on the trigger points and to improve the quality of life for Mr Drummey.”[2] He based this opinion on what Mr Drummey told him and his experience.
[2] Exhibit 1, T Documents, T 15, page 57, Letter from Alfio Sorbello dated 27 May 2015.
Mr Sorbello described how he treated the whole body. His method is to balance the body having regard to “stress lines”. This may call for treatment in an area seemingly far removed from Mr Drummey’s left shoulder, such as his knee. Mr Sorbello has…

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 Drummey and Comcare (Compensation)

Details

AGLC: Drummey and Comcare (Compensation) [2016] AATA 738
Case: [2016] AATA 738
Decision Date: 23 September 2016

CaseChat Overview and Summary

The applicant, Mr Drummey, sought a review of a decision by Comcare, the respondent, which affirmed a prior determination denying his claims for massage therapy and pharmaceuticals under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). Mr Drummey had suffered a compensable injury to his left scapula and back in 1992, and liability for compensation under the SRC Act had been accepted.

The primary legal issue before the court was whether the massage therapy and pharmaceuticals obtained by Mr Drummey in relation to his injury were reasonable to obtain in the circumstances, as required by section 16(1) of the SRC Act. This section mandates that Comcare is liable to pay compensation for the costs of medical treatment that is reasonable to obtain in relation to a compensable injury.

The court considered the evidence regarding Mr Drummey's weekly massage therapy sessions, which he claimed provided pain relief and improved his quality of life, and the opinion of his remedial massage therapist. However, the court also noted that the therapist's opinion was based on Mr Drummey's subjective reports and the therapist's experience, and that the treatment involved addressing the whole body. Regarding the pharmaceuticals, the court accepted the evidence of Dr Home, finding that where Dr Home did not expressly record a relationship between a pharmaceutical and Mr Drummey's compensable condition, the treatment was not reasonable to obtain.

The reviewable decision of Comcare was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The applicant, Mr Drummey, has applied for review of a decision of Comcare (“the respondent”) dated 8 July 2015 affirming a determination dated 14 April 2014 denying his claims for massage therapy and pharmaceuticals under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act”). BACKGROUND Mr Drummey was born on 28 April 1957. He suffered an injury on 2 June 1992 for which liability to pay compensation under s 14 of the SCR Act was accepted in respect of “injury left scapular, back injury”. Liability was subsequently ceased under ss 16 and 19 of the SRC Act but that decision was set aside and substituted with a decision that Mr Drummey was entitled to compensation under the SRC Act beyond November 1993.[1][1] Drummey v Comcare [1997] AATA 789. Section 16(1) of the SCR Act provides that Comcare is liable to pay, in respect of the costs of medical treatment obtained in relation to an injury (being treatment that it was reasonable to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment. Massage therapy Mr Drummey had been receiving treatment from Alfio Sorbello, a remedial massage therapist. Mr Sorbello said he first saw Mr Drummey when he walked in one day. He said he treated him for approximately seven years on a weekly basis until May 2015. The cost of treatment at that time was $81.32 per session. The purpose of the treatment is pain relief. Mr Sorbello considers the treatment is “highly beneficial for reducing pain and freeing up the scapular and shoulder girdle to reduce tension on the trigger points and to improve the quality of life for Mr Drummey.”[2] He based this opinion on what Mr Drummey told him and his experience.[2] Exhibit 1, T Documents, T 15, page 57, Letter from Alfio Sorbello dated 27 May 2015. Mr Sorbello described how he treated the whole body. His method is to balance the body having regard to “stress lines”. This may call for treatment in an area seemingly far removed from Mr Drummey’s left shoulder, such as his knee. Mr Sorbello has not suggested that Mr Drummey seek any other treatment. Mr Drummey says he suffers back pain which has never gone away. However the pain is reduced for three or sometimes four days after massage. He says that on occasions, once or twice, the pain has been more severe after massage. Nine times out of ten the treatment feels beneficial. Mr Drummey says he has not changed his activities since the massage ceased but he is in more pain. Those activities are typically watching the morning news, going on the computer, and walking for 6 to 7 kilometres. He says he does some of the housework which could include vacuuming (but not cleaning the bathroom). He does not do any shopping which he says he despises. He does not cook which he leaves to his wife. The evidence discloses that Mr Drummey had been receiving massage treatment before he visited Mr Sorbello.[3] Comcare estimates the Commonwealth has paid for 648 sessions of massage therapy since 2002 at a cost of between $63.00 and $81.32 per session. [3] Exhibit 1, T Documents, T 35, Summary of entitlements paid.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Some of the pharmaceuticals the subject of the reviewable decision, as I have said, were not (or are not now) the subject of Mr Drummey’s claim. Accordingly, in general I have not found it necessary to deal with them individually. They have, however, been referred to by Dr Home.[24] I have considered what he has had to say. For the avoidance of doubt, I should record that I accept his evidence in this regard. Where Dr Home does not expressly record a relationship between the pharmaceutical and Mr Drummey’s compensable condition I find the treatment is not reasonable to obtain in the circumstances.[24] Ibid, page 39.CONCLUSION The reviewable decision is affirmed.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number	2015/3792
Re	Jeffrey Drummey
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President I R Molloy
Date	23 September 2016
Place	Brisbane