Mohan Raja and Comcare (Compensation) - [2020] AATA 1782

Mohan Raja and Comcare (Compensation) [2020] AATA 1782 (16 June 2020)
Division:GENERAL DIVISION
File Numbers:2017/0421 and 2018/0628
Re:Rajendram Mohan Raja
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:16 June 2020
Place:Brisbane

I affirm the decisions under review.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – claim for medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – hydrotherapy for lumbo-sacral strain (episode only) – whether treatment reasonable – whether applicant continues to suffer the effects of the compensable condition – decisions under review affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth)
CASES
Alamos and Comcare [2014] AATA 629
Bayani and Australian Postal Corporation (2015) 149 ALD 347; [2015] AATA 342
Blackwell and Comcare [2017] AATA 1357
Comcare Australia v Rope (2004) 135 FCR 443; [2004] FCA 540
Comcare v Holt (2007) 94 ALD 576; [2007] FCA 405
D’Amico and Comcare (Compensation) [2018] AATA 54
Evans and Comcare (Compensation) [2016] AATA 827
Jorgensen and Commonwealth of Australia (1990) 23 ALD 321
Napier and Comcare (Compensation) [2017] AATA 1452
O’Day and Comcare [2017] AATA 1328
Tuimaseve v Minister for Immigration and Border Protection (2018) 74 AAR 192; [2018] FCA 396
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
16 June 2020
INTRODUCTION

Mr Rajendram Mohan Raja (“the applicant”) seeks review of two decisions made by Comcare (“the respondent”). The first decision is the reviewable decision dated 25 November 2016,[1] which determined that there was no present liability to pay compensation pursuant to section 16 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) for “ongoing hydrotherapy/pool passes”. This first decision is the subject of application number 2017/0421. The second decision is the reviewable decision dated 6 December 2017,[2] which determined that the applicant did not presently suffer the effects of the compensable condition, and that there was no present liability pursuant to section 16 of the SRC Act. This second decision is the subject of application number 2018/0628.
[1] Exhibit A, T-Documents T92.
[2] Exhibit B, Supplementary T-Documents ST13.
The respondent accepted liability relating to workplace injuries on 15 January 1996 and 21 June 1997. The claim for “ongoing hydrotherapy/pool passes” relates to the accepted 15 January 1996 injury for “lumbo-sacral strain (episode-only)”.
It is for the Tribunal to determine whether the effects of the 1996 and 1997 injuries have ceased, and whether it is reasonable in the circumstances for the applicant to continue to receive compensation for “ongoing hydrotherapy/pool passes”.
BACKGROUND
On 8 February 1993, the applicant commenced work at the Department of Defence (“Department”). The applicant stated that he first injured his back in 1994 when getting out of the car, upon arrival at work. He had to leave early from work because of the pain, subsequently he took two days off work. The applicant’s general practitioner treated him with TENS[3] for pain…

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 Mohan Raja and Comcare (Compensation)

Details

AGLC: Mohan Raja and Comcare (Compensation) [2020] AATA 1782
Case: [2020] AATA 1782
Decision Date: 16 June 2020

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mohan Raja, against decisions of the respondent, Comcare, to affirm decisions refusing compensation for medical expenses, specifically ongoing hydrotherapy and pool passes, under section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The dispute centred on whether the applicant continued to suffer the effects of his compensable conditions and whether the requested treatment was reasonable.

The court was required to determine two primary legal issues. Firstly, whether the effects of the applicant's compensable injuries, specifically a lumbo-sacral strain in 1996 and a sacroiliac muscle strain in 1997, had ceased by at least 29 September 2016. Secondly, if the effects of the compensable conditions had ceased, whether it was reasonable for the applicant to continue receiving compensation for ongoing hydrotherapy and pool passes.

The court found that the applicant had not been entirely accurate in his claim form, particularly regarding prior back injuries. Evidence, including medical reports and hospital records, indicated that the applicant had experienced lower back pain prior to his employment with the Department of Defence in 1994, including an incident in 1992 or 1993. The court relied on a medical report concluding that the applicant had a constitutional lumbar spondylosis condition that was exacerbated by both his employment and events outside of his employment. Consequently, the court determined that the applicant ceased to suffer the effects of the "lumbo-sacral strain (episode-only)" by at least 29 September 2016.

As a result of this determination, the court concluded that there was no present liability for Comcare to pay compensation for medical expenses related to the condition under section 16 of the SRC Act from that date onwards. Therefore, Comcare was not liable to pay for the applicant's ongoing hydrotherapy and pool passes. The court affirmed the decisions under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

It is for the Tribunal to determine whether the effects of the 1996 and 1997 injuries have ceased, and whether it is reasonable in the circumstances for the applicant to continue to receive compensation for “ongoing hydrotherapy/pool passes”.BACKGROUND On 8 February 1993, the applicant commenced work at the Department of Defence (“Department”). The applicant stated that he first injured his back in 1994 when getting out of the car, upon arrival at work. He had to leave early from work because of the pain, subsequently he took two days off work. The applicant’s general practitioner treated him with TENS[3] for pain relief for about one or two weeks. There was a full recovery within two weeks. The applicant received physiotherapy, and returned to his regular duties. [3] Transcutaneous electrical nerve stimulation. On 15 January 1996, the applicant was working in the research section of the Department itemising stock. When the applicant was moving some material, the applicant started to experience severe lower back pain. He was referred to have x-rays and physiotherapy, he had a few days off work. On 6 February 1996, a statement by the applicant’s supervisor recorded that the applicant experienced lower back pain. The applicant took two weeks off work, and on 19 February 1996, the applicant recommenced working on light duties. After injuring his back in 1996 the applicant received a transfer to the administrative section, performing clerical and administrative duties. On 11 March 1996, the applicant submitted a claim for Workers’ Compensation. The Workers’ Compensation form is dated 8 March 1996. The applicant claimed in respect of a “back pain – lumbo sacral strain” which occurred whilst inspecting different stores coming from warehouse transfer for relocation. On 8 August 1996, the respondent accepted liability pursuant to section 14 of the SRC Act for an “episode of lumbo-sacral back strain”. The deemed date of injury was 15 January 1996. Before the applicant commenced work with the Department, in 1984 or 1985 whilst living in Sri Lanka, the applicant was in a car accident. In 1987, the applicant immigrated from Sri Lanka, to Australia. In 1992, the applicant started working at the Concord Hospital. In June 1997, the applicant was assisting in moving office furniture and documents. When he was putting down an archive box, the applicant experienced central lower back pain. The applicant rested over the weekend, and returned to work on the Monday, to move more archive boxes. He again experienced lower back pain, he reported the incident and then took two or three days off work. He was referred to a physiotherapist for treatment. He had appointments with the physiotherapist for about a month. On 21 June 1997 the respondent accepted a compensation claim in respect of a “left sacroiliac muscle strain” arising from a workplace incident. In June 1997 the applicant commenced hydrotherapy sessions. He attended a supervised hydrotherapy course, three times a week for a few months. The applicant thereafter undertook self-directed sessions as classes were not available. He then resumed the hydrotherapy courses three times a week. He said that he could complete the exercises himself, but he preferred to attend classes.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As I have determined that the applicant ceased to suffer the effects of the “lumbo-sacral strain (episode-only)” by at least 29 September 2016, there is no present liability of the respondent to pay compensation to the applicant in respect of medical expenses in relation to the condition under section 16 of the SRC Act. It follows that the respondent is not liable, since that date, to pay compensation to the applicant for “ongoing hydrotherapy/pool passes”.DECISION I affirm the decisions under review.

Ratio Decidendi

Legal Principle Established

The respondent submits that if the Tribunal finds that the liability ceased by at least 29 September 2016, then the Tribunal does not need to consider the reasonableness of the treatment in relation to work. CONSIDERATION I decided that the hearing of this application had to be adjourned because material documents within the meaning of section 38AA of the Administrative Appeals Tribunal Act 1975 (Cth) were proposed to be used to cross-examine the applicant on the second day of the hearing. Those documents were related to the employment of the applicant by the Concord Hospital and were obtained by the respondent some time before the hearing and had yet to be filed before the Tribunal. Having regard to the decision of Justice Moshinsky in Tuimaseve v Minister for Immigration and Border Protection,[44] in which His Honour referred to the need to accord procedural fairness to an applicant, I considered that the appropriate and fair course of action was to adjourn the proceedings to enable the applicant to seek legal advice, possibly from Legal Aid.[44] (2018) 74 AAR 192. At the adjourned hearing of the application, the applicant was questioned about the summons material from Concord Hospital which contained records of the applicant having lower back pain since 1992. The applicant had asserted that he had no lower back pain before his employment by the Department of Defence in 1994. There has been some dispute as to whether in cross-examination the applicant had conceded that he had lower back pain prior to 1994. The applicant has submitted that under cross-examination he only conceded to having signed the Concord Hospital documents and has stated that he does not recall any incident in the Concord Hospital concerning lower back pain in 1992 or 1993. I consider that the applicant has not been accurate in the completion of the claim form that he signed on 8 March 1996. In particular, the answer that he gave to Question 18(a) in the claim form was not correct. That question asked the applicant: “Have you ever had a similar injury or illness before, work related or otherwise (even if you think it is unrelated to this injury or illness)?” In his answer to that question the applicant gave the following answer: “Twisted lower back while getting out of car in Oct ‘94”. It is not plausible that the applicant could not remember his earlier back pain incident from the Concord Hospital some two years prior to the car incident of 1994. The applicant also did not disclose on the claim form another incident of back pain in that he experienced in 1995, the medical notes of that incident appeared to relate his back pain to gardening. It is clear from the report of Dr Bornstein that the applicant had back pain before 1994. Dr Ellis reported that the applicant was injured in October 1994. I rely upon the medical report dated 13 July 2017 of Dr Kevat to conclude that the applicant has a constitutional lumbar spondylosis condition which was exacerbated by the employment of the applicant as well as events outside his employment.