Manns v Comcare

Case [2012] AATA 462

[2012] AATA 462 

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2010/4920 and 2011/0490

Re

CAROLYN MANNS

APPLICANT

And

COMCARE

RESPONDENT

DECISION

Tribunal

Mr S. Webb, Presiding Member
Dr P. Wilkins, Member
Date 20 JULY 2012
Place Canberra

  1. The reconsideration decision in application 2010/4920 is set aside. Ms Manns is entitled to compensation for medical treatment expenses relating to right knee surgery on 16 September 2010.

  2. The reconsideration decision in application 2011/0490 is varied to the extent that Ms Manns’ entitlement to compensation under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of her accepted right knee injuries continued to 6 April 2011. From 7 April 2011 to the present Ms Manns is not entitled to compensation under s 16 and s 19 of the Act in respect of her accepted injuries.

  3. The applications are remitted to Comcare for determination of the amount of compensation that is payable to Ms Manns as a result of these decisions.

  4. Submissions as to orders for costs, if any, are to be filed within 14 days of the date of this decision. If no submissions are forthcoming, Comcare will be ordered to pay Ms Manns’ reasonable costs of these proceedings in accordance with the Tribunal’s Guide to the Workers’ Compensation Jurisdiction, as agreed or taxed.

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

    Mr S. Webb, Presiding Member

    COMPENSATION – accepted knee injury – decision to approve surgical treatment reversed after operation carried out – medical treatment in relation to the injury – reasonable to obtain in the circumstances – decision set aside

    COMPENSATION – accepted knee injury – complaints of right knee pain and instability – decision to cease compensation for incapacity and medical treatment – multiple surgical procedures in relation to accepted injury – incapacity and medical treatment consequent to surgical treatment is compensable – abnormal illness behaviour – no entitlement to compensation in respect of incapacity for work or medical treatment expenses following recovery from surgery – decision varied

    Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 67

    Abrahams v Comcare (2006) 93 ALD 147

    Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472
    Brackenreg v Comcare [2010] FCA 724
    Briginshaw v Briginshaw (1938) 60 CLR 336
    Jones v Dunkel (1959) 101 CLR 298
    Re Jorgensen and Commonwealth of Australia (1990) 23 ALD 321
    Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
    O’Grady v Northern Queensland Company Limited (1990) 169 CLR 356
    PMT Partners Pty Limited (in Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301

    Smith v Federal Commissioner of Taxation (1987) 164 CLR 513

    REASONS FOR DECISION

    Mr S. Webb, Presiding Member
    Dr P. Wilkins, Member

    20 JULY 2012

  5. Carolyn Manns injured her right knee in two falls at work. She successfully claimed compensation. She obtained medical treatment. She underwent surgery, but continued to complain of disabling symptoms in her knee. Subsequently, she underwent a further six surgical operations on her right knee and obtained other…

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AGLC
Manns v Comcare [2012] AATA 462
Case
[2012] AATA 462
Decision Date

CaseChat Overview and Summary

In the matter of Manns v Comcare, the primary issue before the court was whether the surgery performed on Ms Manns' right knee was reasonably required medical treatment in relation to her accepted right knee injuries, and if so, for how long she was entitled to compensation under sections 16 and 19 of the relevant act. The decision also considered the broader context of Ms Manns' injuries and treatment, including the nature and extent of her incapacity and the necessity of the surgical procedure. The legal issues that the court had to resolve were whether the surgical procedure performed by Dr Caldwell was medical treatment in relation to Ms Manns' accepted right knee injuries and whether it was reasonable for Ms Manns to obtain this treatment under the circumstances.

The court found that the surgical procedure was indeed medical treatment in relation to Ms Manns' accepted right knee injuries, as it was reasonable for her to obtain it given the circumstances. The court emphasised the importance of considering the relational connection between the medical treatment and the injuries, and noted that this connection need not be direct or proximate but simply relational. The court also considered the reasonable satisfaction civil standard in determining the closeness of this relational connection. While acknowledging some merit in Comcare's arguments, the court concluded that the conclusion for which Comcare contended was not made out. The court found that Ms Manns' entitlement to compensation under sections 16 and 19 of the Act in respect of her accepted right knee injuries continued until 6 April 2011, after which she was not entitled to such compensation from 7 April 2011 to the present. The reconsideration decision in application 2010/4920 was set aside, and the reconsideration decision in application 2011/0490 was varied accordingly. The applications were remitted to Comcare for the determination of the amount of compensation payable to Ms Manns.

In summary, the court determined that Ms Manns was entitled to compensation for the medical treatment expenses relating to the right knee surgery on 16 September 2010, and for her entitlement to compensation under sections 16 and 19 of the Act in respect of her accepted right knee injuries, which continued until 6 April 2011. The court also noted that careful consideration is required for every claim or prospective request for approval of surgical treatment, especially when the ailment being treated involves chronic pain without objective explanation.

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

We make no finding about whether Ms Manns has suffered a new and different injury, in the form of a frank physical injury or a disease, such as post-operative arthritis, opiate addiction or aggravation of a psychiatric disorder, or as a result of medical treatment, including surgical and pharmacological treatment, she obtained in relation to her accepted right knee injuries. These are not matters that have been claimed. They were not agitated before us, and they are not for us to determine.Conclusion The surgical procedure Dr Caldwell performed on Ms Manns’ right knee on 16 September 2010 is medical treatment in relation to her accepted right knee injuries that it was reasonable for her to obtain in the circumstances. Following that surgery, Ms Manns suffered incapacity for work and required medical treatment until 6 April 2011. The incapacity for work and post-operative medical treatment she obtained in this period were attributable to her accepted right knee injuries. We use ‘attributable’ to encompass the two tests of connection we must apply – ‘as a result of’ and ‘in relation to’. From 7 April 2011 and presently, Ms Manns’ accepted right knee injuries have not resulted in any incapacity for work and no medical treatment has been required in relation to them. The reconsideration decision in application 2010/4920 is set aside. Ms Manns is entitled to compensation for medical treatment expenses relating to right knee surgery on 16 September 2010. The reconsideration decision in application 2011/0490 is varied to the extent that Ms Manns’ entitlement to compensation under s 16 and s 19 of the Act in respect of her accepted right knee injuries continued to 6 April 2011. Thereafter, from 7 April 2011 to the present Ms Manns is not entitled to compensation under s 16 and s 19 of the Act in respect of her accepted injuries. The amount of compensation that is payable to Ms Manns as a result of these decisions remains to be determined. For this purpose, the applications are remitted to Comcare. The parties have not been heard as to orders for costs. Written submissions on this point may be filed within 14 days of the date of this decision. If no submissions are forthcoming, Comcare will be ordered to pay Ms Manns’ reasonable costs of these proceedings in accordance with the Tribunal’s Guide to the Workers’ Compensation Jurisdiction, as agreed or taxed. Finally, Ms Manns was critical of Comcare’s decision to reverse its approval of the surgery Dr Caldwell performed, after the fact. Plainly, it is open for Comcare to do so. Considering the circumstances of Ms Manns’ case, we feel compelled to remark that very careful consideration is required in respect of every claim (or prospective request for approval) in respect of surgical treatment, especially when the ailment being treated is one involving chronic pain without objective explanation. It is highly desirable for Comcare to thoroughly assess the evidence and, if necessary undertake further investigations or enquiries, prior to approving surgical treatment. Doing so after the fact and reversing a primary approval decision will always be controversial and it may give rise to further claims. This should be avoided.

Ratio Decidendi

Legal Principle Established

On 29 November 2010, Comcare determined that Ms Manns did not presently suffer from the effects of her compensable injury and she was not presently entitled to compensation under ss 16 and 19 of the Act[17]. On 1 February 2011 Comcare reconsidered and affirmed its 29 November 2010 determination in respect of Ms Manns’ entitlements under ss 16 and 19 of the Act[18]. This reconsideration decision is the subject of application 2011/0490.[17] BT5.[18] BT10.Surgical operation Comcare asserts that the surgery performed by Dr Caldwell was not medical treatment that was reasonably required in relation to Ms Manns’ injuries. While accepting, correctly, that the surgery Dr Caldwell performed is ‘medical treatment’ under s 4 of the Act, in Comcare’s submission, the surgery was not ‘in relation to’ Ms Manns’ accepted right knee injuries: either the injuries resolved before Dr Caldwell recommended further surgery or the surgery was treatment for a condition that was not an ‘injury’ for which Comcare is liable. Furthermore, the symptoms of which Ms Manns complained were not readily explained by objective evidence and may be attributable to psychogenic factors and abnormal illness behaviour. Additionally, and in any event, so the argument goes, it was not reasonable for Ms Manns to obtain the surgery in the circumstances: when the costs and benefits of the treatment options are considered, the weight of the contemporaneous and subsequent evidence is that further surgery was contra-indicated. There is merit in some of these submissions, but the conclusion for which Comcare contends is not made out. Under s 16 of the Act, Comcare is liable to pay compensation in respect of the cost of medical treatment in relation to an injury that it was reasonable for the employee to obtain in the circumstances, where the amount of the compensation is to be determined on the basis of that which is appropriate to the medical treatment. We must determine -(a)whether the surgical procedure was medical treatment in relation to Ms Manns’ injuries, and if so(b)whether it was reasonable for her to obtain this treatment in the circumstances, and if so(c)the amount of compensation that is appropriate to the medical treatment. Undertaking this task, standing in the shoes of the original decision-maker and considering the circumstances at the time, we must have regard to all of the relevant evidence and material that is before us. The content of the original decision and the reconsideration decision that reversed it are beside the point of our inquiry.Medical treatment in relation to injury The liability to pay compensation for medical treatment under s 16 is not confined to treatment ‘of’ or ‘for’ an injury, but extends to treatment ‘in relation to’ an injury. The phrase ‘in relation to’ has a broad meaning that is not confined to a direct or proximate relationship of cause and effect; it simply signifies that there is some relational connection between two matters[19]. Presently, the relational connection is between the medical treatment Ms Manns obtained and the right knee injuries for which Comcare accepted liability. The closeness of the relational connection must be ascertained “by reference to the nature and purpose of the provision in question and the context in which it appears”[20]. These are matters of degree[21], to be determined on the evidence applying the reasonable satisfaction civil standard without resort to indefinite evidence or indirect inferences[22]. The balance of probabilities test does not authorise us to choose between guesses, on the ground that one guess seems more likely than another[23]. [19] Smith v Federal Commissioner of Taxation (1987) 164 CLR 513 at 533; Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 at 487.[20] PMT Partners Pty Limited (in Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313.[21] O’Grady v Northern Queensland Company Limited (1990) 169 CLR 356 at [10].[22] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363.[23] Jones v Dunkel (1959) 101 CLR 298 at 305.