Onassys and Comcare (Compensation) - [2019] AATA 1338

Onassys and Comcare (Compensation) [2019] AATA 1338 (19 June 2019)
Division:GENERAL DIVISION
File Number(s): 2017/1197 & 2017/1198
Re:Cristina Onassys
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member M J McGrowdie
Date:19 June 2019
Place:Sydney

1.In respect of the claim made in Matter No. 2017/1197, the determination of Comcare is set aside and the matter is remitted to Comcare for payment/reimbursement of massage treatment and hydrotherapy charges incurred and which were tendered at the hearing and became Exhibit A4.
2.In respect of the claim in Matter No. 2017/1198, the reviewable decision of Comcare dated 14 July 2016 as it related to the claimed condition of a “chronic pain disorder” is affirmed.

...........................[sgd].........................................
Senior Member M J McGrowdie

CATCHWORDS
WORKERS COMPENSATION – shoulder conditions – claim for physiotherapy/massage therapy and hydrotherapy – Applicant in receipt of weekly benefits and paid lump sum compensation – decision under review set aside – claim for Chronic Pain Disorder – insufficient medical evidence – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16 & 19
CASES
Pethes and Comcare (Compensation) [2018] AATA 483
REASONS FOR DECISION
Senior Member M J McGrowdie
19 June 2019
INTRODUCTION

The Applicant, Cristina Onassys, was employed to work for the then Australian Quarantine Inspection Service inspecting imported produce and flowers. At times, the Applicant was required to deal with other imports and the provision of training. Her work was heavy and arduous and resulted in her suffering injuries to both shoulders dating back to 2012 with conditions in the shoulders accepted by Comcare, namely a sprain of the right shoulder with bursitis, and aggravation of a partial tear of the left rotator cuff.
These conditions were reviewed by Comcare and on 31 May 2016 Comcare determined that the Applicant was not entitled to certain medical expenses, relevantly, physiotherapy and hydrotherapy. Further, on 31 May 2016, Comcare denied liability for a claimed chronic pain condition.
The Applicant sought a review by Comcare of these decisions and on 14 July 2016 both determinations were affirmed. The Applicant has applied to the Tribunal for a review of these reviewable decisions.
The issues to be determined by the Tribunal are:-
(i)Whether the Applicant is entitled to receive the costs of physiotherapy (and/or massage) and hydrotherapy; and
(ii)Whether the Applicant developed a diagnosable condition of chronic pain as a result of her employment.
The Applicant has continued to receive weekly compensation and has been paid lump sum impairment compensation in respect of the earlier accepted conditions.
The Respondent, in relation to the claim for physiotherapy (and/or massage) and hydrotherapy, raises a dispute as to whether such treatments constitute “medical treatment” and were reasonable to obtain “in relation to the injury”.
So far as the physiotherapy is concerned, the Applicant appears to have not obtained such treatment possibly since December 2015. However, it also seems to be the case that the Applicant had massage treatment from October 2017 and continued such treatment on…

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 Onassys and Comcare (Compensation)

Details

AGLC: Onassys and Comcare (Compensation) [2019] AATA 1338
Case: [2019] AATA 1338
Decision Date: 19 June 2019

CaseChat Overview and Summary

This matter concerned appeals by the applicant, Onassys, against decisions of Comcare regarding compensation claims. The applicant sought physiotherapy/massage therapy and hydrotherapy for shoulder conditions, and also claimed for a chronic pain disorder. The decisions under review related to these claims. The proceedings were heard by M J McGrowdie SM.

The primary legal issues before the court were whether the applicant had provided sufficient medical evidence to support a claim for a chronic pain disorder, and whether the applicant was entitled to reimbursement for physiotherapy/massage therapy and hydrotherapy expenses. The court was required to assess the weight of the medical evidence presented in relation to the chronic pain disorder claim and to determine the validity of the claims for ancillary treatments.

In relation to the claim for a chronic pain disorder, the court found that even if the evidence of Dr Hong was disregarded, the balance of the available medical evidence did not adequately support the diagnosis of such a condition. Therefore, the reviewable decision of Comcare affirming its refusal of this claim was upheld. However, in respect of the claim for physiotherapy/massage therapy and hydrotherapy, the court found in favour of the applicant.

Consequently, the determination of Comcare in Matter No. 2017/1197 was set aside, and the matter was remitted to Comcare for the payment or reimbursement of the massage treatment and hydrotherapy charges that were tendered as evidence. The reviewable decision of Comcare dated 14 July 2016, as it pertained to the claimed condition of a "chronic pain disorder" in Matter No. 2017/1198, was 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

The fact that Dr Hong did not support the Applicant’s claim for a diagnosable condition of chronic pain does not really assist with the question, for even if Dr Hong’s evidence was completely discounted as the Applicant feels it should, the balance of the evidence does not provide adequate support for the claim limited to a chronic pain disorder.DECISIONS In respect of the claim made in Matter No. 2017/1197, the determination of Comcare is set aside and the matter is remitted to Comcare for payment/reimbursement of massage treatment and hydrotherapy charges incurred and which were tendered at the hearing and became Exhibit A4. In respect of the claim in Matter No. 2017/1198, the reviewable decision of Comcare dated 14 July 2016 as it related to the claimed condition of a “chronic pain disorder” is affirmed.

Ratio Decidendi

Legal Principle Established

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