Howes and Comcare (Compensation) - [2016] AATA 448

Howes and Comcare (Compensation) [2016] AATA 448 (30 June 2016)

Division

GENERAL DIVISION

File number

2013/1987

Roseanne Howes

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal Dr James Popple, Senior Member

Date 30 June 2016

Place Canberra
Comcare’s decision on 22 April 2013 is affirmed.
.................[sgd]......................................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — remittal from Federal Court for reconsideration according to law — liability accepted for physical injuries — breast reduction surgery — whether surgery was medical treatment — whether relationship required between surgical treatment and a particular injury for that treatment to be medical treatment — whether surgery obtained in relation to accepted injuries — whether surgery could have affected the accepted injuries or their symptoms — decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 16

CASES
Howes and Comcare [2015] AATA 39

Howes v Comcare [2015] FCA 1078

REASONS FOR DECISION
Dr James Popple, Senior Member
30 June 2016
Summary

Comcare accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for a number of injuries suffered by the applicant. Several doctors advised the applicant that breast reduction surgery might reduce her pain. She underwent that surgery. After the surgery, she continued to experience the symptoms of her injuries (including pain), though to a lesser degree.
Notwithstanding the advice she received before the breast reduction surgery, that surgery could not have affected the symptoms of the applicant’s accepted injuries. It follows that the breast reduction surgery was not obtained in relation to those accepted injuries, so Comcare is not liable under s 16 of the SRC Act to pay the applicant compensation for the costs associated with the surgery.
Background
On 28 January 2015, the Tribunal made a decision in this review.[1] On 26 February 2015, the applicant (Ms Roseanne Howes) appealed that decision to the Federal Court. On 7 October 2015, the Federal Court set aside the Tribunal’s decision, and remitted the application for review to the Tribunal for reconsideration according to law.[2]
[1] Howes and Comcare [2015] AATA 39 per Denovan M.
[2] Howes v Comcare [2015] FCA 1078 per Griffiths J.
I respectfully adopt the Federal Court’s summary of the background facts in this review:
In August 2003, the applicant commenced work with the Australian Taxation Office (ATO). Her employment required her to use a computer constantly. In April 2005 she experienced intermittent pain in her neck and by July 2005 she was experiencing constant pain in her neck and pain in her right shoulder. After she submitted a workers’ compensation claim in September 2005, Comcare determined that liability was accepted for “intervertebral disc disorder—cervical region”, “sprain of shoulder and upper arm (right)”, “subacromial bursitis (right)” and “erosion of teeth” (caused by the applicant grinding her teeth at night in response to her pain) (the compensable injuries).
The applicant claimed that the weight of her breasts increased the pain in her neck and shoulder and that she had also put on…

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 Howes and Comcare (Compensation)

Details

AGLC: Howes and Comcare (Compensation) [2016] AATA 448
Case: [2016] AATA 448
Decision Date: 30 June 2016

CaseChat Overview and Summary

This matter concerned an appeal by Ms Roseanne Howes against a decision by Comcare to refuse reimbursement for the costs associated with breast reduction surgery. Comcare had accepted liability for certain physical injuries sustained by Ms Howes during her employment, including intervertebral disc disorder of the cervical region and shoulder and upper arm sprain. Ms Howes contended that the weight of her breasts exacerbated her accepted injuries and that the breast reduction surgery was therefore medical treatment obtained in relation to those injuries. The Administrative Appeals Tribunal (AAT) was required to reconsider the application for review after the Federal Court set aside a previous AAT decision and remitted the matter for reconsideration according to law.

The primary legal issue before the Tribunal was whether the breast reduction surgery constituted "medical treatment" for the purposes of section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). This required the Tribunal to determine whether the surgery was obtained in relation to Ms Howes's accepted injuries, and if so, whether it was reasonable for her to obtain such treatment in the circumstances. The Tribunal noted that the Federal Court had previously summarised the factual background, including the nature of Ms Howes's accepted injuries and the various medical opinions and treatments she had received, including consultations with surgeons regarding breast reduction.

In its reasoning, the Tribunal accepted that the breast reduction surgery was "medical treatment" as defined by the *SRC Act*. However, the Tribunal found that the surgery was not obtained in relation to Ms Howes's compensable injuries. This conclusion was based on the advice Ms Howes received that the surgery could not have affected the symptoms of her accepted injuries. Consequently, the Tribunal determined that Comcare was not liable under section 16 of the *SRC Act* to pay compensation for the costs associated with the surgery.

The Tribunal affirmed Comcare's decision of 22 April 2013.

Orders

Orders of the court

Comcare’s decision on 22 April 2013 is affirmed.

Background

Background to the litigation

Notwithstanding the advice she received before the breast reduction surgery, that surgery could not have affected the symptoms of the applicant’s accepted injuries. It follows that the breast reduction surgery was not obtained in relation to those accepted injuries, so Comcare is not liable under s 16 of the SRC Act to pay the applicant compensation for the costs associated with the surgery.Background On 28 January 2015, the Tribunal made a decision in this review.[1] On 26 February 2015, the applicant (Ms Roseanne Howes) appealed that decision to the Federal Court. On 7 October 2015, the Federal Court set aside the Tribunal’s decision, and remitted the application for review to the Tribunal for reconsideration according to law.[2][1] Howes and Comcare [2015] AATA 39 per Denovan M.[2] Howes v Comcare [2015] FCA 1078 per Griffiths J. I respectfully adopt the Federal Court’s summary of the background facts in this review:In August 2003, the applicant commenced work with the Australian Taxation Office (ATO). Her employment required her to use a computer constantly. In April 2005 she experienced intermittent pain in her neck and by July 2005 she was experiencing constant pain in her neck and pain in her right shoulder. After she submitted a workers’ compensation claim in September 2005, Comcare determined that liability was accepted for “intervertebral disc disorder—cervical region”, “sprain of shoulder and upper arm (right)”, “subacromial bursitis (right)” and “erosion of teeth” (caused by the applicant grinding her teeth at night in response to her pain) (the compensable injuries).The applicant claimed that the weight of her breasts increased the pain in her neck and shoulder and that she had also put on weight because of the medication she was taking for her pain. In November 2006, she consulted a plastic surgeon, Dr Ferguson about the possibility of breast reduction for the relief of the pain. In March 2007, she consulted an orthopaedic surgeon, Dr Coyle, who suggested that breast reduction might help the pain.Throughout 2006–2007 the applicant undertook various treatments including for weight loss. She also consulted another orthopaedic surgeon (Dr Damiani) in August 2007. She underwent a shoulder operation with Dr Damiani on 25 March 2008, but this operation did not help her pain. From late 2005 until at least November 2008, the applicant was treated by a rehabilitation specialist, Dr May, who prescribed oral pain medication, massage, hydrotherapy, physiotherapy, a home exercise program and guided injections around the C6 nerve root.Dr May ultimately referred the applicant to a neurosurgeon, Dr Pell, in respect of her neck pain. In December 2008 Dr Pell diagnosed that Ms Howes had a C5-C6 disc prolapse. He advised that she undergo neck surgery. The applicant was reluctant to do so; consequently he recommended further nerve root injections.In July 2009, the applicant’s general practitioner (Dr Donaghy) referred her to Dr Milovic, a plastic surgeon, for consideration of a breast reduction for pain relief. The applicant claimed that she was advised by Dr Milovic that a breast reduction might assist in the reduction of her pain. In August 2009, the applicant was referred again to Dr Damiani. She was also referred for a second opinion to a plastic surgeon, Dr Taylor, who in August 2009 advised her that a breast reduction might assist in pain reduction.On 23 October 2009, at the ATO’s request, the applicant attended a consultant, Dr Macauley (a consultant rheumatologist). The applicant claimed that she asked Dr Macauley whether a breast reduction would be beneficial and that she was told that a breast reduction might assist in pain reduction and that she should “consider a breast reduction as a matter of urgency”.On 2 November 2009, the applicant underwent breast reduction and abdominoplasty surgery, which was carried out by Dr Milovic.In 2012, the applicant claimed reimbursement under s 16 of the SRC Act of the cost of the breast reduction ($19,956.80, comprising fees charged by or relating to the surgeon, the anaesthetist, pathology and the hospital), which was refused by Comcare on 22 August 2012. On 25 January 2013, a reconsideration was requested. The reconsideration was concluded on 22 April 2013. It resulted in an adverse decision. The applicant sought a review by the AAT of that reviewable decision.The hearing in the AAT commenced on 10 November 2014 and the AAT member reserved her decision at the end of that day. ……On 28 January 2015, the AAT handed down its reasons for decision for affirming the reviewable decision.[3][3] Howes v Comcare [2015] FCA 1078 at [2]–[12] per Griffiths J.Decision under review

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Because I have concluded that the surgery was not medical treatment obtained in relation to Ms Howes’s compensable injuries, I do not have to consider whether the surgery was “treatment that it was reasonable for [her] to obtain in the circumstances”.Conclusion The surgery was “medical treatment” as defined in s 4(1) of the SRC Act. However, the surgery was not obtained in relation to Ms Howes’s compensable injuries. Comcare is not liable under s 16 to pay her compensation for the costs associated with the surgery.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File number	2013/1987
Roseanne Howes
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Dr James Popple, Senior Member
Date	30 June 2016
Place	Canberra