Ortega and Comcare
[2005] AATA 229
•17 March 2005
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.
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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 Certificate by Mr Woods, 2 May 2001, at T112.
6. On 22 August 2002 Comcare determined that “on and from 20 August 2002, we are no longer liable to pay compensation for physiotherapy, massage therapy or hydrotherapy treatment”.[3] This decision was affirmed by a Review Officer on 22 December 2003 in the following terms:
“Having considered all of the available evidence I have decided to affirm the determination of 22 August 2003, finding that Comcare is not liable to pay compensation for physiotherapy, hydrotherapy and massage therapy in accordance with Section 16 of the SRC Act 1988.”[4]
[3] Exhibit R24.
[4] Exhibit R26.
7. Mrs Ortega did not receive any of these treatments after 30 April 2002, although Comcare had approved such treatments for the period between 30 April 2002 and 29 June 2002. Mrs Ortega did not avail herself of the approved treatments in this period for reasons of which I was not made aware.
8. On 10 January 2005 Mrs Ortega commenced a rehabilitation program provided by Fit To Manage. This course was approved by Comcare as part of Mrs Ortega’s rehabilitation.
9. Mr Stuart Andrews, a director of the program, gave evidence that the aim of the program is to educate a participant to self-manage his/her own rehabilitation by appropriate exercise. He was directly involved with the training of Mrs Ortega. In his report of 10 February 2005[5] Mr Andrews stated that Mrs Ortega attended only 4 sessions and that:
“Once at the program Ms. Ortega was reluctant to participate in any of the suggested exercises that FTM had put in place for her (no matter how gentle these exercises were) and her only interest seemed to be in getting out of the FTM clinic as quickly as she could.”
[5] Exhibit R2.
I accept this evidence.
10. I also accept Mrs Ortega’s explanation that she withdrew from the course because she found the exercises painful and that upon discussing this with her Service Provider she was told by her Service Provider to stop the exercises.
11. After ceasing to attend the course Mrs Ortega discussed the matter with her General Practitioner, Dr Foo, and as a result Mrs Ortega resumed attending the Fit To Manage sessions. At the time of the hearing of this matter Mrs Ortega was continuing with the course and according to Mr Andrews was progressing satisfactorily.
THE MEDICAL EVIDENCE
12. Mrs Ortega relied upon evidence from her General Practitioner, Dr Foo, and from Dr Warfe, Public Health Physician, who examined her on 26 May 2004 for the purpose of this application.
13. On the basis of Dr Foo’s evidence and the various medical certificates issued by him,[6] Dr Foo has not recommended any of the three therapies in question since May 2003. I accept his evidence that he would recommend physiotherapy and hydrotherapy for Mrs Ortega when there is an exacerbation of her condition such as there was in May 2003. He agreed that it was important not to “over-treat” Mrs Ortega and that she should keep active. He confirmed that he had spoken to Mrs Ortega concerning the desirability of her returning to the Fit To Manage program.
[6] Exhibit R3.
14. Importantly Dr Foo did not say that Mrs Ortega required physiotherapy, hydrotherapy or massage therapy at the time the matter came before me for hearing. In his last report in evidence, dated 15 September 2004, Dr Foo said:
“In my opinion, she will also require physical treatment (eg physiotherapy, osteopathy, deep tissue massage) from time to time when her symptoms are exacerbated, to allow her to continue working.”[7]
[7] Exhibit A2.
15. Dr Warfe, Public Health Physician, reviewed Mrs Ortega on 26 May 2004. He gave evidence at the hearing. He stated that physiotherapy and hydro therapy are rarely of benefit beyond 12 weeks of treatment, but that such treatments are beneficial in “flare ups”. He also said that in cases of people with entrenched pain it is difficult for them to self-manage and that it is therefore better that they take part in self-management programs and to avoid extensive passive treatment. I accept this evidence. Understandably, as he had not seen Mrs Ortega since May 2004, he did not express an opinion as to whether or not she required any physiotherapy, hydrotherapy or massage therapy at present.
16. Mr Wearne, Consultant Orthopaedic Surgeon, examined Mrs Ortega on a number of occasions on behalf of Comcare, the last being on 12 June 2002. Mr Wearne had reviewed more recent reports and notes of other practitioners. He relied on the report of Dr Warfe of 27 May 2004 to conclude that at that time Mrs Ortega’s condition was similar to what it was when he saw her in June 2002.
17. In his report of 7 July 2004 Mr Wearne said:
“In my opinion, further physiotherapy, massage or hydrotherapy, or any combination of these, would not alleviate Ms Ortega’s condition. In my opinion, she has derived all the benefit she is likely to receive from extensive exposure to all of these treatments in the part. Furthermore, it is my opinion that the hydrotherapy and physiotherapy that she has received in the past will have increased the strength of her shoulder girdles and upper limbs to the maximum possible. I consider any further exposure to these treatments would be futile.”[8]
[8] Exhibit R27.
18. In his evidence before me Mr Wearne maintained the view expressed in his report so far as it related to Mrs Ortega’s underlying condition but he did agree that such treatments would be reasonable to relieve the symptoms of temporary exacerbation.
19. I accept Dr Wearne’s evidence.
20. On consideration of all the evidence I am satisfied that it was reasonable for Mrs Ortega to have treatment by way of physiotherapy, hydrotherapy and massage therapy in the past and, depending on the circumstances at the time, she may require such treatments from time to time in future. However, I am not satisfied that any one or more of the treatments is presently required and in fact there is no evidence before me to support a finding to this effect.
THE LAW
21. It is absolutely clear that neither Comcare (as the determining authority) nor this Tribunal can make a decision as to the compensation which should be payable under section 16 of the Act at some time in the future and based on circumstances which do not now exist.
22. In Rosillo v Telstra Corporation Limited (2003) 77 ALD 396 at 400 Madgwick J quoted with approval the following passage from the judgement of Cooper J in Australian Postal Corporation v Oudyn (2003) 73 ALD 659 at 666-667:
“Where [a determining authority] is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitled payment under that section no longer exist, or can no longer be made out by the claimant. It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.
[A determining authority] cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act: Plumb v Comcare (1992) 39 (FC) at 240.”
23. Of course, this does not mean that in appropriate circumstances a decision cannot be made to the effect that Comcare is liable now to compensate for treatment which will extend into the future. However that is not the case in this matter as I am not satisfied that Mrs Ortega requires any of the subject treatments at present.
APPLYING THE LAW TO THE FACTS
24. The original determination of 22 August 2003 (set out in paragraph 6) is contrary to the law as set out in Rosillo v Telstra Corporation. Counsel for Comcare argued that this defect was remedied by the terms of the reviewable decision (also set out in paragraph 6) as the reviewable decision did not refer to future liability. I do not accept this argument. The reviewable decision affirmed the determination and the only reasonable interpretation is that it affirmed the determination in its entirety. My interpretation is supported by the terms of a letter of 13 December 2004 to the Tribunal from Comcare’s solicitors:
“We note that the wording of the determination and by implication the reviewable decision, are not in line with the Tribunal decisions of Liu and (sic) Comcare …. and Rosillo v Telstra Corporation ….”
The reviewable decision is defective in this regard.
25. As there are no outstanding claims for treatment expenses and as I am not satisfied that Mrs Ortega has a present need for any of the stated three treatments I cannot make any decision as to treatment other than that foreshadowed in the previous paragraph. Just as Comcare cannot bind itself not to compensate Mrs Ortega for certain treatment in future I cannot bind it to agree to certain types of treatment. If and when Mrs Ortega seeks compensation for physiotherapy, hydrotherapy or massage therapy she will need to lodge a claim and Comcare will need to consider the claim on its merits.
THE DECISION
26. 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.
27. The parties have leave to have the matter re-listed for further argument as to costs should they be unable to reach agreement.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member
Signed: .....................................................................................
AssociateDates of Hearing 7 & 8 March 2005
Date of Decision 17 March 2005
Counsel for the Applicant Mr G. Lunney
Solicitor for the Applicant Hill & Rummery
Counsel for the Respondent Ms E. Ford
Solicitor for the Respondent Phillips Fox
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