Ortega and Comcare

[2005] AATA 229

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 229

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2004/4

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		SONIA ORTEGA

Applicant

And COMCARE

Respondent

DECISION

Tribunal   Mr J.W. Constance, Senior Member

Date  17 March 2005

Place  Canberra

Decision The decision under review is set aside and in substitution I decide that as at the date of this decision Comcare is not liable to pay to Mrs Ortega compensation in accordance with section 16 of the Safety, Rehabilitation and Compensation Act 1988 for physiotherapy, hydrotherapy and/or massage therapy.

..............................................

CATCHWORDS

COMPENSATION – section 16 reasonable medical treatment – whether respondent liable to pay for the applicant to have physiotherapy, hydrotherapy and massage – whether reviewable decision purported to bind respondent into the future – whether the respondent was liable for treatment applicant may have in the future – reviewable decision contravenes principles set out in Oudyn and Rosillo – decision set aside – costs reserved

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 16

Rosillo v Telstra Corporation Limited (2003) 77 ALD 396

Australian Postal Corporation v Oudyn (2003) 73 ALD 659

REASONS FOR DECISION

17 March 2005 Mr J.W. Constance, Senior Member

1.             Mrs Ortega is seeking a review of the decision of Comcare that “on and from” 20 August 2002 it was not liable to compensate her for various treatments of an injury to her right shoulder.  I have decided that this decision must be set aside as it purports to bind Comcare in advance.  However as there are no outstanding claims for payment of treatment expenses nor is there evidence that Mrs Ortega needs any of these treatments now I do not propose to make any further decision as to compensation. 

FACTS

2.             Unless otherwise stated I make the following findings of fact based on the evidence of Mrs Ortega.  In reaching these findings I have been satisfied on the balance of probabilities.

3.             Mrs Ortega was born on 21 January 1952 and is 53 years of age.

4.             In 1995 Mrs Ortega was working for Totalcare Industries as a linen sorter, a position she had held for several years.  On 28 November 1995 she suffered the injury to her right shoulder whilst lifting a bag of linen.  Comcare accepted liability for “musculo-ligamentous strain right shoulder”.  In September 1999, by agreement, the compensable condition was changed to “a subacromial syndrome with a persistent rotator cuff tendon tear of the right shoulder” with effect from 26 February 1999.  At the same time Comcare accepted liability for “bicipital tendonitis syndrome of the left shoulder”.[1]

[1] Decision of Administrative Appeals Tribunal pursuant to section 42(C) of the Administrative Appeals Tribunal Act 1975 (Cth), 6 September 1999, T68.

5.             In 1997 and 2001[2] Mrs Ortega underwent surgery to her right shoulder and left shoulder respectively.  From November 1995 until the end of April 2002 Mrs Ortega received numerous treatments of physiotherapy, hydrotherapy and massage therapy.  These treatments were approved by Comcare.

[2] Exhibit R6 and Medical…