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
Military Rehabilitation…
Continue reading Kumar and Comcare (Compensation)
Sign in free to access the full text
- AGLC
- Kumar and Comcare (Compensation) [2025] ARTA 112
- Case
- [2025] ARTA 112
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.