FEDERAL COURT OF AUSTRALIA
Howes v Comcare [2016] FCA 1521
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Details
- AGLC
- Howes v Comcare [2016] FCA 1521
- Case
- [2016] FCA 1521
- Decision Date
CaseChat Overview and Summary
In the case of Howes v Comcare, the applicant sought reimbursement for the cost of breast reduction surgery under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The applicant, who had been employed by the Australian Taxation Office, claimed that her compensable injury, which included intervertebral disc disorder and shoulder sprain, was exacerbated by the weight of her breasts. She underwent breast reduction surgery in 2009 and sought reimbursement from Comcare, which was refused. The matter was reviewed by the Administrative Appeals Tribunal (AAT), which affirmed Comcare's decision. The applicant appealed the AAT's decision to the Federal Court of Australia.
The central legal issues in this case were whether the AAT misconstrued section 16 of the SRC Act in holding that the medical treatment (breast reduction surgery) was not obtained "in relation to" the compensable injury, and whether the AAT's decision or fact-finding was unreasonable in the legal sense. Additionally, the applicant argued that the AAT misapplied the principle from Jones v Dunkel by preferring the evidence of Dr Maxwell over the applicant's medical advisors.
The Federal Court found no merit in the applicant's arguments. Regarding the alleged inconsistency in addressing Dr Coyle's evidence, the Court held that the AAT correctly made its own findings of fact based on all the evidence before it, and there was no inconsistency. The Court also found that the AAT did not err in preferring Dr Maxwell's evidence over that of the applicant's medical advisors. The Court held that the AAT's analysis and findings were reasonable, and there was no basis for concluding that the AAT's decision or fact-finding was unreasonable in the legal sense.
Accordingly, the Court dismissed the appeal and ordered the applicant to pay Comcare's costs. The appeal was dismissed, and the applicant was ordered to pay Comcare's costs, as agreed or assessed.
The central legal issues in this case were whether the AAT misconstrued section 16 of the SRC Act in holding that the medical treatment (breast reduction surgery) was not obtained "in relation to" the compensable injury, and whether the AAT's decision or fact-finding was unreasonable in the legal sense. Additionally, the applicant argued that the AAT misapplied the principle from Jones v Dunkel by preferring the evidence of Dr Maxwell over the applicant's medical advisors.
The Federal Court found no merit in the applicant's arguments. Regarding the alleged inconsistency in addressing Dr Coyle's evidence, the Court held that the AAT correctly made its own findings of fact based on all the evidence before it, and there was no inconsistency. The Court also found that the AAT did not err in preferring Dr Maxwell's evidence over that of the applicant's medical advisors. The Court held that the AAT's analysis and findings were reasonable, and there was no basis for concluding that the AAT's decision or fact-finding was unreasonable in the legal sense.
Accordingly, the Court dismissed the appeal and ordered the applicant to pay Comcare's costs. The appeal was dismissed, and the applicant was ordered to pay Comcare's costs, as agreed or assessed.
Orders
Orders of the court
1. The appeal be dismissed.
2. The applicant pay the respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The application for review was reconsidered by a different member of the AAT who, as noted above, again dismissed the application. Before summarising the AAT’s reasons for this second decision, it is convenient to set out the background matters (which were largely undisputed) and the relevant legislative provisions. Summary of background matters After working with the Australian Taxation Office (ATO) for approximately 18 months, which work required the applicant to use a computer constantly, in April 2005 she experienced intermittent pain in her neck. By July 2005 the applicant was experiencing constant pain in her neck and right shoulder. Comcare accepted liability for the injury under s 14 of the SRC Act in respect of what was described as “intervertebral disc disorder – cervical region”, “sprain of shoulder and upper arm (right)”; “subacromial bursitis (right)” and “erosion of teeth” (which was caused by the applicant grinding her teeth at night in response to her pain). It is convenient to summarise other relevant background facts by reference to the summary set out in Howes (Fed Court 1) at [3]-[9], while noting that the applicant contests the accuracy of the highlighted phrases in [6] and [7]:3The 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.4Throughout 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.5Dr 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.6In 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.7On 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”.8On 2 November 2009, the applicant underwent breast reduction and abdominoplasty surgery, which was carried out by Dr Milovic.9In 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.Relevant legislative provisions summarised
Evidence
Evidence Before The Court
Applying those general principles here, and having regard to the way in which the applicant presented her case in relation to question of law 3, I am not satisfied that she has made good her contentions in respect of any of the three matters to which question of law 3 relates. (i) Alleged inconsistency in addressing Dr Coyle’s evidence The alleged inconsistency relates to the fact that, while adopting this Court’s summary of the background facts in Howes (Fed Court 1), the AAT then proceeded to make a finding of fact that Dr Coyle did not give the applicant the advice which she claimed. There is no substance in this contention. There is, in fact, no inconsistency. In the early section of the AAT’s reasons for decision under the heading “Background”, the Senior Member adopted the summary of the background facts in the matter as set out in [2]-[12] of Howes (Fed Court 1). Those paragraphs in the Court’s earlier judgment summarise the background to the litigation. They are not in the nature of findings of fact by the Court, but rather are an introductory summary narrative of the events that had occurred which gave rise to the litigation. In adopting those paragraphs, the AAT was, in effect, taking the convenient course of commencing its analysis of the issues in the appeal by reference to the Court’s earlier description of the key events which formed a backdrop to the litigation which led to the remitter. Quite correctly, the AAT did not view itself as being bound by the Court’s summary of those background matters. In particular, notwithstanding the Tribunal’s adoption of those passages from Howes (Fed Court 1) in [4] of its reasons for decision, it correctly saw its task as having to make its own findings of fact on the basis of all the evidence before it for the purposes of the remitted hearing. The Senior Member turned his mind to Dr Coyle’s evidence in [22] and [23] and made his own findings of fact in relation to that subject. The Senior Member noted the applicant’s claims that, prior to her surgery, Dr Coyle advised her that breast reduction surgery might reduce her pain (i.e. reflecting [3] of Howes (Fed Court 1) where, in summarising the applicant’s claims, reference was made to the applicant’s evidence that, in March 2007, she consulted Dr Coyle who suggested that breast reduction would help her pain). It was open to the AAT to make its own findings of fact in relation to this evidence. In a footnote to [22], the Senior Member made specific reference to [3] of Howes (Fed Court 1) and said that he did not “take the Court to have made a finding of fact that Dr Coyle advised Ms Howes about breast reduction surgery” – rather, “the Court was noting that Ms Howes claimed that Dr Coyle gave her that advice”. These observations disclose no appealable error. The Senior Member had to make his own findings in respect of the applicant’s claim regarding what she was told by Dr Coyle. He did so in [23] when he found that Dr Coyle did not advise the applicant that breast reduction surgery might reduce her pain having particular regard to the fact that Dr Coyle’s written report, while canvassing surgical treatment, did not mention breast reduction surgery. That inference was reasonably open to be drawn. The AAT’s analysis and findings in respect of Dr Coyle’s evidence fall far short of being unreasonable in the legal sense. (ii) The Jones v Dunkel contention
Decision
Reasons for decision
For these reasons, the applicant’s challenge to the AAT’s preference for Dr Maxwell’s evidence over that of the applicant’s medical advisors on the ground of unreasonableness in the legal sense is rejected. Conclusion For these reasons, the appeal should be dismissed and the applicant ordered to pay Comcare’s costs.
Ratio Decidendi
Legal Principle Established
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