Kumar and Comcare (Compensation) - [2025] ARTA 1145

Kumar and Comcare (Compensation) [2025] ARTA 1145 (28 July 2025)
Applicant/s:  Saroj Kumar
Respondent:  Comcare
Tribunal Number:                2023/5708

Tribunal:General Member M. Carey
Place:Melbourne
Date:28 July 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides that from 1 April 2023 to the present date and at the present date, the Applicant is entitled to compensation pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988 for the cost of chiropractic treatment in respect of her compensable neck injury being treatment that is reasonable to obtain in the circumstances.

..............................SGD..........................................
General Member M Carey
Catchwords
COMPENSATION – entitlement to compensation for medical treatment – chiropractic treatment – whether therapeutic treatment – whether treatment obtained in respect of injury – nature of injury – whether treatment is reasonable to obtain in the circumstances –utility of Clinical Framework – cost/benefit analysis – treatment compensable
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare Australia v Rope (2004) 135 FCR 443
Comcare v Holt [2007] FCA 405; (2007) 94 ALD 576
Comcare v Watson (1997) 46 ALD 481
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Heales and Comcare [2018] AATA 3788
Secondary Materials
Clinical Framework for the Delivery of Health Services, June 2012
Statement of Reasons

Ms Saroj Kumar entitled to compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for an injury identified by Comcare as ‘disorders of bursae and tendons shoulder region (right) and an aggravation of intervertebral disc disorder cervical region’.[1] A date of injury of 11 May 2005 was identified in decisions. She made her claim for compensation on 7 June 2005 for injury to the ‘neck & right shoulder’ related to her employment with the Australian Taxation Office in Hurstville in the State of New South Wales.[2]
[1] T212, 643. References to ‘T-Documents’ are references to documents lodged with the Tribunal pursuant to a Notice to the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), in operation when the application commenced. They are generally known as ‘Tribunal documents’, sequentially numbered, with subsequent page references. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
[2] T10, 41-55.
The medical certificate provided at the time of her claim described ‘neck strain from continual desk job’.[3]
[3] T11, 57.
For some years, Comcare has paid compensation for a variety of treatments for this condition, including general practitioner consultations, gymnasium membership, pharmaceutical treatment, physiotherapy treatment and up to 264 sessions of chiropractic therapy.…

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 Kumar and Comcare (Compensation)

Details

AGLC: Kumar and Comcare (Compensation) [2025] ARTA 1145
Case: [2025] ARTA 1145
Decision Date: 28 July 2025

CaseChat Overview and Summary

Ms Kumar sought compensation for medical treatment expenses she incurred following an injury sustained at work. The dispute centred on whether the costs of chiropractic treatment she received were compensable under the relevant legislation. The matter was heard in the Administrative Appeals Tribunal of Australia. The primary legal issue was whether the chiropractic treatment Ms Kumar received constituted therapeutic treatment that was reasonably necessary in relation to her work-related injury, and thus compensable under the legislation.

The Tribunal considered the statutory definition of therapeutic treatment, which encompasses any treatment that is for the purpose of alleviating injury, illness or disability. It was necessary to determine whether the chiropractic treatment Ms Kumar received met this definition. Additionally, the Tribunal assessed whether the treatment was related to the injury, and if it was reasonable and necessary to obtain such treatment in the circumstances. The utility of the Clinical Framework was also considered, which provides a structured approach to evaluate the reasonableness of medical treatments. A cost/benefit analysis was applied to compare the chiropractic treatment against alternative treatments to determine its reasonableness.

After evaluating the evidence and applying the relevant legal principles, the Tribunal concluded that the chiropractic treatment was therapeutic and reasonably necessary in relation to Ms Kumar's work-related injury. The Tribunal found that the treatment provided significant relief from her pain and improved her ability to work, thereby fulfilling the criteria for compensation. The cost/benefit analysis showed that the benefits of the treatment outweighed the costs, making it a reasonable course of action. As a result, the Tribunal upheld Ms Kumar's claim for compensation for the chiropractic treatment expenses.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Ms Kumar stated in her review application that chiropractic treatment ‘help with my neck pain, shoulder pain and headaches. Physiotherapy and specific gym-based exercises relieve the shoulder pain and strengthen the shoulder muscles.’ She continued:5.I have had both physiotherapy & chiropractor treatments. Both treatments provide relief from the pain, however, I find chiropractor treatments, far more effective for the neck pain.6.In the early stages I was receiving more frequent treatment, i.e., 2 – 3 treatments (physiotherapy and/or chiropractic treatments) per week, along with specific gym exercises with a personal trainer. I was also taking an enormous quantity of pain medicines and was barely able to work a few hours a week. The photos of these particular gym equipment are attached. It is not possible to have the equipment at home.Now I have 1 chiropractor treatment per fortnight, except for exceptional circumstances, when I may need more sessions due to inflammation and increase of pain severity. Occasionally physiotherapy treatment, some gym-based exercises, which cannot be carried out without the appropriate gym equipment (these exercises were previously suggested by a personal trainer from work solution representative). Due to all these I am now working full time. As I claimed only 1 chiropractic treatment per fortnight in last years, I see it as a big improvement in the condition compared to initial years, reduced pain medicines compared to before to avoid the damage to internal body organs, but it has not, nor will it ever (as advised by the doctors above), return to the same physical condition prior to the injury at work.a. I visit the Chiropractor on Saturdays, despite of its impact on my personal life. I could have attained these treatments during the week & claimed the time off on compensation grounds. But I did not do it, instead, I used part of my weekend.Consideration There are three facts which must be determined in order for there to be an entitlement to compensation for the cost of medical treatment. Firstly, the treatment must be one which conforms to the definition of medical treatment found in subsection 4(1) of the SRC Act. Where the form of treatment in the definition is qualified by the expression, ‘therapeutic treatment’ then that element must also be determined. Secondly, the treatment must be ‘in relation to’ the injury for which there is a liability, and this may give rise to consideration of the injury and its nature. Thirdly, there is a qualification concerning the reasonableness of the treatment in the circumstances. That determination can involve a ‘cost/benefit analysis’ weighing the claimed treatment against alternatives in the light of experience (see Comcare Australia v Rope (2004) 135 FCR 443[31]; Comcare v Holt [2007] FCA 405; (2007) 94 ALD 576).[32][31] (2004) 135 FCR 443 at 448 [17] per Stone J.[32] [2007] FCA 405; (2007) 94 ALD 576 at 582 [26] per Mansfield J.Therapeutic treatment for the purpose of alleviating injury