Hamblin and Comcare (Compensation) - [2021] AATA 371

Hamblin and Comcare (Compensation) [2021] AATA 371 (16 February 2021)
Division:GENERAL DIVISION
File Number: 2018/6728
Re:Janet Hamblin
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr A. Maryniak QC, Member
Date:16 February 2021
Date of written reasons: 4 March 2021
Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
...[sgd]....................................................................
Mr A. Maryniak QC, Member
Catchwords
COMPENSATION – medical treatment – ongoing massage treatment –– whether treatment is reasonable – decision affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988
Cases
Alamos and Comcare, Re [2014] AATA 629
Agius and Comcare, Re [2018] AATA 4075
Bayani and Australian Postal Corporation, Re [2015] AATA 342
Drummey and Comcare, Re [2016] AATA 738
Durham and Comcare, Re [2014] AATA 753
Evans and Comcare, Re [2016] AATA 827
Hamblin and Comcare, Re [2018] AATA 4451
O' Day and Comcare, Re [2017] AATA 1328
Pethes and Comcare, Re [2018] AATA 483
Rope and Comcare, Re [2018] AATA 42
Topping and Comcare, Re [2015] AATA 525
REASONS FOR DECISION
Mr A. Maryniak QC, Member
4 March 2021

At the conclusion of the hearing of this matter, the terms of the decision and the reasons thereof were stated orally.
The oral reasons for the decision have been transcribed by Epiq Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
An extract of the said transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.

I certify that the following 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision of Mr A. Maryniak QC, Member

...[sgd]....................................................................
Associate
Dated: 4 March 2021

Dates of hearing: 15–16 February 2021

Applicant: By telephone

Counsel for the Respondent: Mr Ray Ternes

Solicitors for the Respondent: MORAY & AGNEW LAWYERS
ANNEXURE A
EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MEMBER: This is a review of a reviewable decision dated 20 September 2018 which affirmed a determination dated 2 August 2018 which held that the Respondent was not liable to pay for further massage treatment for the Applicant under section 16 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).
The only issue or determination by this Tribunal following concessions by the Respondent in light of the evidence before the Tribunal is whether such massage treatment is “reasonable” according to law, namely pursuant to section 16 of the SRC Act.
The background facts as summarised in the Respondent’s Further Statement of Facts, Issues and Contentions and Outline of Submissions at paragraphs 5 to 17 are essentially not in issue and are established on the evidence before the Tribunal.[1]
[1] Respondent’s Statement of Facts, Issues and Contentions and Outline of Submissions, dated 3 October 2020 at paras [5] to [17] (citations omitted):
Ms Hamblin is 65 years of age, having been born on 17 January 1955.
She has a long history of low back pain and problems,…

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 Hamblin and Comcare (Compensation)

Details

AGLC: Hamblin and Comcare (Compensation) [2021] AATA 371
Case: [2021] AATA 371
Decision Date: 16 February 2021

CaseChat Overview and Summary

This matter concerned an appeal by Mr Hamblin against a decision by Comcare to refuse funding for ongoing remedial massage treatments. Mr Hamblin sought compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for these treatments, which he argued were necessary for his work-related injury. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the proposed massage treatments were reasonable and necessary.

The primary legal issue before the Tribunal was whether the ongoing remedial massage treatments constituted "medical treatment" as defined by the Act and, if so, whether such treatment was "reasonable" and "necessary" in the circumstances of Mr Hamblin's injury. The Tribunal had to consider the evidence presented regarding the efficacy and necessity of the massage therapy in managing Mr Hamblin's condition and facilitating his rehabilitation.

The Tribunal affirmed the decision of Comcare, finding that the evidence did not establish that the ongoing remedial massage treatments were reasonable or necessary. While acknowledging the potential benefits of massage therapy in some contexts, the Tribunal concluded that the specific circumstances of Mr Hamblin's case, based on the material before it, did not meet the threshold for ongoing funded treatment. The Tribunal applied the principles of the Act, requiring a demonstration of both reasonableness and necessity for compensation to be granted for medical treatment.

Orders