Kumar and Comcare (Compensation)

Case [2025] ARTA 112

Kumar and Comcare (Compensation) [2025] ARTA 112 (19 February 2025)

Applicant/s:  Jayanthi Kumar

Respondent:  Comcare

Tribunal Number:                2023/7035

Tribunal:General Member M. Carey

Place:Melbourne

Date:19 February 2025

Decision:The Tribunal sets aside the decision of 28 August 2023 under review and in substitution decides:

From 13 June 2023 to the present date and at the present date the Applicant remains entitled to compensation pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988 for medical treatment in the form of massage therapy, being therapeutic treatment obtained at the direction of a legally qualified medical practitioner.

.................................[sgd].......................................

General Member M. Carey

Catchwords

COMPENSATION – entitlement to compensation for medical treatment – massage treatment – whether treatment obtained in respect of injury – nature of injury – whether the effects of injury continue – treatment for those effects – whether treatment is reasonable to obtain in the circumstances – cost/benefit analysis includes utility of treatment to maintain employee at work involving high degree of concentration – concentration adversely affected by symptoms of pain and spasm - Clinical Framework of limited utility – claimant entitled to compensation pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988

INJURY – nature and scope of injury – injury in the medium of disease is injury in the primary sense when pathophysiological change arises from trauma arising out of or in the course of employment – no resort to statutory test for primary liability for acceptance of liability for injury when assessing whether effects of injury continue at time when specific compensation claimed – test requires assessment of evidence to draw factual conclusion as to whether treatment is ‘in respect of’ injury for which liability accepted

EVIDENCE – expert opinion evidence – opinion expressing legal standard – exclusion of evidence of opinion – inappropriate delegation of ultimate issue to expert

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australia Act 1986 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Workers Compensation Act 1951 (ACT)
Workmen’s Compensation Act 1905 (UK)

Cases
Abrahams v Comcare (2006) 93 ALD 147
Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533
Casarotto v Australian Postal Commission (1989) 17 ALD 321
Comcare v Holt [2007] FCA 405; (2007) 94 ALD 576
Comcare Australia v Rope (2004) 135 FCR 443
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 116 CLR 537
Eaves v Blaenclydach Colliery Co Ltd (1909) 2 KB 73
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Health Insurance Commission v Van Reesch and Anor (1996) 45 ALD 302
Hume Steel Ltd v Peart (1947) 75 CLR 242
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Liu and Comcare (2004) 79 ALD 119
McAuliffe v Comcare [2002] FCA 769
Migge v Wormald Bros. Industries Ltd (1972) 2 NSWLR 29
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Details
AGLC
Kumar and Comcare (Compensation) [2025] ARTA 112
Case
[2025] ARTA 112
Decision Date

CaseChat Overview and Summary

Kumar and Comcare (Compensation) involved the claimant's entitlement to compensation for medical treatment received following an injury sustained in the course of her employment. The dispute was heard in the Administrative Appeals Tribunal (AAT). The primary issue before the court was whether the massage therapy received by the claimant was in respect of the injury for which Comcare had accepted liability to pay compensation. This required an assessment of the nature and scope of the injury, and how the treatment related to the injury. The court also needed to consider whether the treatment was reasonable in the circumstances, including a cost/benefit analysis, and the utility of the treatment to maintain the employee's ability to work.

The court found that the nature of the injury involved pathophysiological changes arising from trauma, which fell within the definition of an injury under the Safety, Rehabilitation and Compensation Act 1988. The court emphasised that the test for determining whether treatment was 'in respect of' the injury was not the same as the test for weekly compensation payments for incapacity. Instead, it required an assessment of the evidence to draw a factual conclusion about whether the treatment was in respect of the injury for which liability had been accepted. The court concluded that there was both therapeutic value in the massage treatment obtained at the direction of the claimant's medical practitioner and that it was reasonable to obtain in the circumstances.

The court further found that the nature of the claimant's duties as a Project Scheduler required continuous concentration, which was adversely affected by symptoms of pain and spasm. The massage therapy assisted in maintaining the claimant's ability to work by alleviating these symptoms. The court held that the Clinical Framework was of limited utility in this case and that the appropriate test was whether the treatment was in respect of the injury for which liability had been accepted. Consequently, the court found that the claimant was entitled to compensation pursuant to s 16 of the SRC Act for the massage therapy received.

The final orders of the court were that Comcare's reviewable decision must be set aside and, in substitution, a decision made that from 13 June 2023 to the present date and at the present date the Applicant remains entitled to compensation pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988 for medical treatment in the form of massage therapy.

Orders

Orders of the court

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Background

Background to the litigation

I will firstly address the issue of whether the massage therapy is ‘in respect of’ the injury for which there is a liability to pay compensation. Out of a certain looseness of expression, the discussion in the hearing tended to use the expression ‘results in’ linking the injury with the treatment. That is certainly the test in respect of weekly compensation payments for incapacity under s 19 of the SRC Act, but that is not part of s 16 relating to medical treatment where the expression is whether the treatment is ‘in respect of’ the injury. As the submissions were developed, no harm was done by these references since the Respondent’s argument was that there was no possible association between the 2009 injury and the present treatment, regardless of the expression in the section. These reasons will also set out findings and application of the test for association between the claimed treatment and the injury. That will require some examination of the nature of the injury and consideration of how treatment is ‘in respect of’ that injury. In doing so, I will have regard to legal authorities concerning the approach to be taken to the termination of particular benefits. At that point, I will deal with the submissions of Comcare regarding the possibility of terminating liability for injury on the grounds that it must be considered a ‘disease’, and that once there is no continuing ‘significant contribution’ at the time compensation benefits were ceased, is not the correct test to be applied. Finally, I will deal with the question of whether the treatment is reasonable for the Applicant to receive in the circumstances. Background Dr Kumar was born and raised in India, coming to this country with her husband in 1994 having already completed a degree course in Electrical Engineering. She completed her PhD in Software Engineering from RMIT University in Melbourne, following which she did some paid employment with Coles/Myer but also did full-time lecturing in her field at LaTrobe University between 2003 and 2005. She later commenced work for the Defence Material Organisation at Victoria Barracks. She had been employed from 10 December 2007, about 18 months prior to her injury.[7][7] T3, 19. At the time of her injury, she was engaged at the APS 6 Level as a ‘Project Scheduler’. Her normal ordinary time hours of duty were 37 hours and 30 minutes per week. She has been promoted since that time to the Executive Level 1 (EL1). Since the Covid pandemic she worked much time at home and continues to work from home, but has a workplace now at the Defence Centre in the city area of Melbourne. It is important to note that the duties as a ‘Project Scheduler’ required many hours of continuous concentration on data projected onto a large computer screen, later modified to two separate computer screens. These duties were performed at a high level and relied upon her training and skills in software engineering to maintain progress of various projects undertaken by the Defence Materials Organisation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, I find that there is both therapeutic value in the massage treatment obtained at the direction of her medical practitioner as well as being reasonable to obtain in the circumstances.DECISION Consequently, Comcare’s reviewable decision must be set aside and, in substitution, a decision made that from 13 June 2023 to the present date and at the present date the Applicant remains entitled to compensation pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988 for medical treatment in the form of massage therapy, being therapeutic treatment obtained at the direction of a legally qualified medical practitioner.

Ratio Decidendi

Legal Principle Established

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