Excell and Comcare - [2010] AATA 104

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 104
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/6087

GENERAL ADMINISTRATIVE DIVISION )

Re KATHERINE HEATHER EXCELL

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)
Dr R J Walters RFD (Part-time Member)
Date12 February 2010
PlaceHobart

Decision
The decision under review is affirmed.

.[Sgd Ms A F Cunningham]
Senior Member

CATCHWORDS
WORKERS' COMPENSATION - whether massage therapy constitutes reasonable treatment for accepted condition of PTSD - history of massage therapy treatment over four years - no evidence of long term benefit - not appropriate long term treatment for psychiatric illnesses - self managed exercise program recommended in the circumstances as appropriate medical treatment - decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988, ss 4, 16
Compensation (Commonwealth Government Employees) Act 1997
Re Jorgensen and Commonwealth (1990) 23 ALD 321
Popovic and Comcare (2000) 64 ALD 171
Mikic v Comcare [2002] AATA 125
Re Kentish and Telstra Corporation Ltd [1999] AATA 661
Re Lovrinovic and Comcare [1998] AATA 1038
Comcare v Watson (1997) 22 AAR 516
Tiranti-Valenti and Comcare (1996) 45 ALD 478
Nolan and Comare [2009] AATA 680
REASONS FOR DECISION

12 February 2010 Ms A F Cunningham (Senior Member)
Dr R J Walters RFD (Part-Time Member)

1.      This application for review concerns a determination which was made on 8 August 2009 denying liability for massage treatment on the basis that it is not reasonable treatment for the compensable condition.
2.      At the applicant, Katherine Excell's request, the compensable condition originally accepted on 13 July 1988 as "anxiety, depression" was changed to post traumatic stress disorder (PTSD) on 8 February 2005.
3. Comcare's decision to refuse the claim was based on a finding that massage treatment is not treatment that is directed towards treating the cause of the compensable psychological condition, but rather the symptoms and therefore does not constitute reasonable medical treatment for the purposes of section 16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
4.      The issue for the Tribunal to determine is whether massage treatment is reasonable treatment for the applicant's accepted condition of PTSD.
Background
5.
Ms Excell made a claim for workers' compensation in respect of "stress" on 9 March 1988 whilst employed by the Commonwealth in the Department of Social

Security. Liability was accepted and incapacity payments were made by Comcare on an ongoing basis from 15 June 1988. Ms Excell retired from the Commonwealth on invalidity grounds with effect from 21 April 1989 and is in receipt of a superannuation pension. Ms Excell continued to receive incapacity payments until 30 October 1992 when she was paid a lump sum by way of redemption.
6.      In May 2005 Ms Excell made an application for a permanent impairment payment pursuant to section 24 of the Act. The claim was refused by Comcare which determination was affirmed on reconsideration. Ms Excell sought a review by the Administrative Appeals Tribunal (AAT) which found that the transitional provisions…

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 Excell and Comcare

Details

AGLC: Excell and Comcare [2010] AATA 104
Case: [2010] AATA 104
Decision Date: 12 February 2010

CaseChat Overview and Summary

Excell v Comcare involved a dispute over whether massage therapy constituted reasonable treatment for a condition of post-traumatic stress disorder (PTSD). The case was heard by the Administrative Appeals Tribunal (AAT). The applicant, Mr Excell, was claiming compensation for the PTSD, which was accepted as arising out of his employment. The central legal issue before the AAT was whether the massage therapy provided to Mr Excell for his PTSD was appropriate and reasonable treatment, particularly in light of the lack of evidence showing long-term benefits of such therapy for psychiatric illnesses.

The AAT examined the history of massage therapy treatment provided to Mr Excell over a period of four years. The tribunal found that there was no evidence to support the notion that massage therapy provided long-term benefits for the treatment of psychiatric illnesses such as PTSD. The tribunal emphasised that massage therapy was not generally considered an appropriate long-term treatment for psychiatric conditions. Instead, the tribunal recommended a self-managed exercise program as a more suitable form of medical treatment in Mr Excell's circumstances.

In light of the above findings, the AAT affirmed the decision under review. The tribunal held that the massage therapy provided to Mr Excell did not constitute reasonable treatment for his accepted condition of PTSD. The tribunal's decision underscores the importance of basing medical treatment recommendations on evidence-based practices, particularly in the context of workers' compensation claims.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		KATHERINE HEATHER EXCELL