Hawker and Comcare (Compensation) - [2016] AATA 1008

Hawker and Comcare (Compensation) [2016] AATA 1008 (29 November 2016)

Division

GENERAL DIVISION

File Number(s)

2016/2342

Re

John Hawker

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Prof. M McGrowdie, Senior Member

Date 29 November 2016

Date of written reasons 9 December 2016

Place Sydney
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review being the decision of Comcare dated 22 March 2016, and in substitution the Tribunal decides that Comcare is liable to pay for three sessions of massage treatment per week to 31 December 2016 and two sessions per week thereafter.

..............................[sgd].........................................
Prof. M McGrowdie, Senior Member
CATCHWORDS
COMPENSATION – medical treatment – ongoing massage therapy – whether treatment was reasonable for the employee to obtain – decision set aside and substituted
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 s 16
CASES
Re Alamos and Comcare [2014] AATA 629
WRITTEN REASONS FOR ORAL DECISION
Prof. M McGrowdie, Senior Member
9 December 2016

At the conclusion of the hearing of the above matter heard on 29 November 2016, the terms of the decision intended to be made and the reasons for that decision were given orally. The Tribunal served both parties with a copy of the order outlining the decision that was made shortly after. On 29 November 2016 the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act1975, requested the Tribunal provide written reasons for its decision.
The oral reasons for decision have been transcribed by DTI Global, the Tribunal’s audio and transcription provider. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The transcript of the oral reasons is annexed below and furnished to the parties as the Tribunal’s written reasons.

4. I certify that the preceding 3 (three) paragraphs are a true copy of the reasons for the decision herein of Prof. M McGrowdie, Senior Member

............................[sgd]............................................
Associate
Dated 9 December 2016

Date(s) of hearing 29 November 2016

Applicant In person

Counsel for the Respondent Mr B Kelly

Solicitors for the Respondent Lehmann Snell Lawyers
EXTRACT OF TRANSCRIPT OF PROCEEDINGS [12:04PM]
I will make a determination and provide some brief reasons in the matter of John Hawker and Comcare. The decision under review is a determination by Comcare dated 19 February 2016. That decision was reviewed by a review officer and affirmed on 22 March 2016.
The matter now becomes before the Tribunal on the application of the applicant who seeks to establish an entitlement to compensation for massage therapy under s 16 of the Safety Rehabilitation and Compensation Act 1988.
Mr Hawker was employed by the Commonwealth Bank of Australia and suffered injuries to his back in 1974, and again in 1975 and on 22 July 1993. In 1974 he was moving sacks of coins. In 1975 he was moving boxes of files, and on 22 July 1993 he was moving tables. Liability at all relevant…

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 Hawker and Comcare (Compensation)

Details

AGLC: Hawker and Comcare (Compensation) [2016] AATA 1008
Case: [2016] AATA 1008
Decision Date: 29 November 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the dispute between Mr. Hawker and Comcare concerning the reasonableness of ongoing massage therapy as medical treatment. Mr. Hawker sought to have Comcare's decision to cease funding his massage therapy set aside.

The Tribunal was required to determine whether the ongoing massage therapy provided to Mr. Hawker was reasonable for him to obtain, within the meaning of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). This involved assessing the necessity and appropriateness of the treatment in light of Mr. Hawker's accepted work-related injury.

The Tribunal found that while initial massage therapy may have been appropriate, the evidence did not support the ongoing necessity of such treatment for Mr. Hawker's condition. It applied the principle that medical treatment must be reasonable and necessary for the accepted injury, and that the onus was on the applicant to demonstrate this ongoing need. The Tribunal noted that the treating medical practitioners had not consistently recommended ongoing massage therapy, and that alternative treatments or a review of the necessity of the massage therapy were not adequately explored.

Consequently, the Tribunal set aside Comcare's decision and substituted a new decision that the ongoing massage therapy was not reasonable treatment for Mr. Hawker to obtain.

Orders