Napier and Comcare (Compensation) - [2017] AATA 1452

Napier and Comcare (Compensation) [2017] AATA 1452 (13 September 2017)
Division:GENERAL DIVISION
File Numbers: 2015/4836 & 2016/4080
Re:Susan Napier
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:13 September 2017
Place:Brisbane

The decisions under review are affirmed.
.................[sgd].................................................
Senior Member T. Tavoularis
CATCHWORDS
COMPENSATION – medical treatment – therapeutic treatments – previously accepted injuries – where Applicant suffers from a number of accepted injuries – where Applicant has received treatments for long period of time – whether treatments were “therapeutic” – whether treatments were reasonable in the circumstances – whether Applicant still suffered from injury – whether present injury work-related – whether Comcare liable for medical treatments – whether Comcare liable for incapacity for work – whether Comcare liable for household assistance – treatments not reasonable in the circumstances – present injury not work-related – decisions under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, , 5A, 14, 16, 19, 29, 64
CASES
Alamos and Comcare
[2014] AATA 629

Chowdhary and Comcare
[1998] AATA 448
Comcare v Holt [2007] FCA 405

Durham and Comcare
[2014] AATA 753

Griffiths and Telstra Corp Ltd [2013] AATA 695
Re Jorgensen and Commonwealth
(1990) 23 ALD 321

Popovic and Comcare
[2000] AATA 264
SECONDARY MATERIALS
Clinical Framework for the Delivery of Health Services
REASONS FOR DECISION
Senior Member T. Tavoularis
13 September 2017
INTRODUCTION

Ms Susan Napier (“the Applicant”) has suffered a number of injuries for which she has claimed compensation from Comcare under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). Comcare has accepted liability for the following of the Applicant’s injuries:
(a)Aggravation of displacement of cervical invertebral disc;
(b)Injury to cervical nerve root (left);
(c)Rotator cuff syndrome of shoulder (right);
(d)Major depressive disorder, recurrent episode; and
(e)Bruxism and dental caries.[1]
[1] Exhibit 3, Statement of Ms Susan Napier; Exhibit 10, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), [3.1].
The Applicant has claimed compensation under s 16 of the Act for various of her injuries since October 2003. Over this time, she has, inter alia, successfully claimed in excess of 840 physiotherapy sessions.[2]
[2] Exhibit 10, Respondent’s SFIC, Annexure A.
In a determination dated 10 July 2015, Comcare found it was liable to compensate the Applicant for physiotherapy. However, it found that the physiotherapy should only be on a decreasing basis until 4 November 2015, after which its liability to pay for the Applicant’s physiotherapy would cease.[3]
[3] Exhibit 1, T Documents, PT10, pp 51-52.
In a determination dated 15 July 2015, Comcare found it was not liable under ss 16, 19 and 29 of the Act to pay compensation to the Applicant for medical treatment, incapacity for work, and household assistance resulting from the Applicant’s right rotator cuff syndrome.[4] It appears that liability was denied on the grounds that the injury the Applicant suffers in her right shoulder as at that date was not materially contributed to by her employment.[5]
[4] Ibid, PT 11, pp 53-54.
[5] Ibid, p 54.

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 Napier and Comcare (Compensation)

Details

AGLC: Napier and Comcare (Compensation) [2017] AATA 1452
Case: [2017] AATA 1452
Decision Date: 13 September 2017

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant against decisions made by Comcare regarding liability for various medical treatments and a specific condition. The Applicant sought compensation for physiotherapy, acupuncture, and remedial massage therapy, as well as for a right shoulder condition, arguing these were necessary due to previously accepted work-related injuries. Comcare had denied liability for these claims.

The central legal issues before the Tribunal were whether the claimed treatments constituted "therapeutic" and "reasonable" medical treatment in the circumstances, and whether the Applicant's right shoulder condition was a compensable injury under the relevant legislation. The Tribunal was required to determine if Comcare was liable for the costs of these treatments and for any resulting incapacity for work or need for household assistance.

The Tribunal found that the Applicant's right shoulder condition was not an injury for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). Consequently, the Tribunal concluded that Comcare was not liable to pay for the claimed physiotherapy, acupuncture, or remedial massage therapy, as these treatments were not considered reasonable in the circumstances, nor were they linked to a compensable injury. The decisions under review were therefore affirmed.

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

As the Applicant’s right shoulder condition is not an injury for the purposes of the Act, there is no need to progress to Issue C.CONCLUSION In summary, I find that Comcare is not liable to the Applicant for:(a)Claimed physiotherapy;(b)Claimed acupuncture;(c)Claimed remedial massage therapy; or(d)Her right shoulder condition. The decisions under review are therefore affirmed.

Ratio Decidendi

Legal Principle Established

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