Lonsdale and Comcare - [2004] AATA 555

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 555
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2002/304

GENERAL ADMINISTRATIVE DIVISION )

Re JUDITH ANN LONSDALE

Applicant

And

COMCARE

Respondent

DECISION

Tribunal
Michael Sassella, Senior Member

Dr M D Miller AO, Member

Date1 June 2004
PlaceCanberra

Decision The decision under review is varied such that Comcare is liable to pay compensation for pain management to be provided in Canberra, a deep tissue massage session once a month and two hydrotherapy sessions a week. The matter is remitted to Comcare for it to determine the elements of pain management and counselling to be provided in Canberra, including by which providers. This decision is favourable to the applicant who qualifies for costs associated with the application in accordance with s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 and the tribunal’s general practice direction.
[sgd] M J Sassella
Senior Member

CATCHWORDS
WORKERS’ COMPENSATION – compensation for medical treatment reasonably required as a result of injury – chiropractic treatment not reasonably required – massage reasonably required once a month – hydrotherapy reasonably required twice a week – nerve block not reasonably required – pain management and counselling reasonably required but not any associated travel between Canberra and Sydney – decision varied
Safety, Rehabilitation and Compensation Act 1988 ss 4(1)(“medical treatment”, “therapeutic treatment”), 14(1), 16(1), (2), (4), (5), (6), (7), (8)
REASONS FOR DECISION

May 2004 Michael Sassella, Senior Member
Dr M D Miller AO, Member

RESULT

We have decided that Ms Lonsdale is to receive compensation under s 16 of the Safety, Rehabilitation and Compensation Act 1988 for a massage session once a month, hydrotherapy twice a week and pain management in Canberra.

BACKGROUND
1. Judith Ann Lonsdale (“the applicant”), born 1 April 1948, was injured at work in the ACT Education Department in 1980 when lifting a child. She incurred a back injury which attracted workers’ compensation. She has had surgery on her lumbar spine and coccyx in the years since, including a laminectomy and a lumbar fusion. As part of these processes she underwent a myelogram in 1980. Her compensable condition is described as aggravation of lumbar disc lesion L5/S1, coccydynia, injured right toe, depression, gastric/peptic ulcerations. Ms Lonsdale last worked in 1980.
2. On 5 April 2002 a delegate within Comcare (“the respondent”) denied liability to pay compensation for massage therapy (once a week), pain management counselling (one hour twice a week), chiropractic treatment (one session), physiotherapy and hydrotherapy (twice a week), nerve blocks and ongoing travel expenses to Sydney from Canberra. Ms Lonsdale sought review of this determination. The determination was changed and a reviewable decision issued which was that Comcare would pay compensation for pain management counselling twice a year and hydrotherapy treatment once a week in Canberra. In other respects the earlier determination was unaffected. Ms Lonsdale appealed this reviewable decision to the Administrative Appeals Tribunal (“the tribunal”).
3. At the tribunal hearing an additional matter raised was whether Comcare’s liability for Ms Lonsdale’s…

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 Lonsdale and Comcare

Details

AGLC: Lonsdale and Comcare [2004] AATA 555
Case: [2004] AATA 555
Decision Date: 1 June 2004

CaseChat Overview and Summary

Lonsdale, an applicant, brought proceedings against Comcare, the respondent, regarding compensation for medical treatment reasonably required due to injury. The dispute involved various forms of treatment, including chiropractic, massage, hydrotherapy, nerve block, pain management, and counselling. The case was heard in the Administrative Appeals Tribunal (AAT). The primary legal issues revolved around which types of treatment were reasonably required under the Safety, Rehabilitation and Compensation Act 1988 and what costs should be borne by Comcare. Specifically, the tribunal needed to determine whether certain treatments, such as chiropractic care, nerve blocks, and travel-related expenses for counselling, were justified under the legislation.

The tribunal found that chiropractic treatment was not reasonably required, as it did not fall within the definition of medical or therapeutic treatment under the Act. Massage therapy was deemed reasonably required once a month, while hydrotherapy was justified twice a week. Nerve block treatment was not found to be reasonably required. The tribunal also concluded that while pain management and counselling were reasonably required, travel expenses between Canberra and Sydney were not. The tribunal's reasoning hinged on the interpretation of the Act, which defined medical treatment broadly but also required that any treatment must be reasonably required and appropriate to the injury sustained.

The tribunal varied the original decision, holding Comcare liable for compensation for pain management to be provided in Canberra, a deep tissue massage once a month, and two hydrotherapy sessions a week. The tribunal remitted the matter back to Comcare to determine the specific elements of pain management and counselling to be provided in Canberra, including the selection of providers. This decision was favourable to the applicant, who qualified for costs associated with the application under the Act and the tribunal's practice direction.

Orders

Orders of the court

The decision under review is varied such that Comcare is liable to pay compensation for pain management to be provided in Canberra, a deep tissue massage session once a month and two hydrotherapy sessions a week. The matter is remitted to Comcare for it to determine the elements of pain management and counselling to be provided in Canberra, including by which providers. This decision is favourable to the applicant who qualifies for costs associated with the application in accordance with s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 and the tribunal’s general practice direction.

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

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GENERAL ADMINISTRATIVE DIVISION		)
Re		JUDITH ANN LONSDALE