DECISION AND REASONS FOR DECISION [2000] AATA 264
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A1998/297; A1999/191
GENERAL ADMINISTRATIVE DIVISION )
Re RADOSLAV POPOVIC
Applicant
And COMCARE
Respondent
DECISION
Tribunal Pamela Burton, Senior Member Dr Michael Miller, AO, Member Air Marshal IB Gration, AO, AFC, Member
Date4 February 2000
PlaceCanberra
Decision The tribunal gave an oral decision in this matter on 4 February 2000. The tribunal decided: (a) that the reviewable decision of 23 September 1998 (A1998/297) be affirmed; (b) that the reviewable decision of 31 March 1999 (A1999/191) be set aside and remitted for assessment of the level, if any, of permanent impairment. In so doing the tribunal recommended that an appropriate multi-dimensional pain rehabilitation program be undertaken before a functional assessment and a non-economic loss assessment are carried out; and (c) that the question of costs be reserved, with liberty to apply. Following are the written reasons of the tribunal for the decisions.
...................(Sgd.).......................
Pamela Burton Senior Member
CATCHWORDS
COMPENSATION – neck injury prior to introduction of SRC Act 1988 – whether impairment was permanent before 1 December 1988 - whether entitled to physiotherapy treatment
Legislation
Safety Rehabilitation and Compensation Act 1988 ss4, 16, 24, 27, 124
Compensation (Commonwealth Government Employees) Act 1971
Authorities
Comcare v Watson (1997) 73 FCR 273
Re Jorgenson and Commonwealth (1990) 23 ALD 321
Sait and Comcare [1999] AATA 984
Chowdhary and Comcare (AAT 13003, 22 June 1998)
REASONS FOR DECISION
4 February 2000 Pamela Burton, Senior Member Dr Michael Miller, AO, Member Air Marshal IB Gration, AO, AFC, Member
This is an application for review of decisions made by a delegate of the respondent dated 23 September 1998 and 31 March 1999. The decision dated 23 September 1998 ceased liability for physiotherapy treatment on and from 16 September 1997. The decision dated 31 March 1999 affirmed a determination dated 4 February 1999 denying liability for compensation under sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 ("the Act").
At the hearing Mr Allan Anforth represented the applicant and Mr Stuart Pilkinton represented the respondent. The tribunal had before it two sets of documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"), and various medical reports and other documents tendered by the parties. Mr Popovic, the applicant, gave oral evidence. Mr Maher, the applicant's physiotherapist, gave evidence on the applicant's behalf. Mr Cousin, physiotherapist, gave evidence on behalf of the respondent.
BackgroundThe applicant was born on 20 August 1946 in Belgrade, Yugoslavia. He was educated in Germany and immigrated with his family to Australia in 1964. In 1978 the applicant commenced employment with the Australian National University as a laboratory technician in the Department of Geology. He had a certificate in geoscience which later assisted him in obtaining promotions to top-level of technical officer.
On 23 August 1988 the applicant sustained a neck injury in an incident at work. It occurred when he was unlocking a large steel security door…
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CaseChat Overview and Summary
The tribunal found that prior to December 1988, it was not medically established that the applicant's impairment was permanent. The tribunal noted that while the applicant had suffered significant impairment over the years, treatment options had not been fully explored. Consequently, it was not established that his current level of impairment was permanent, though it appeared likely that the applicant would have some degree of impairment indefinitely. The tribunal also observed that the applicant's dependence on medication and injections for pain relief continued even after physiotherapy treatment ceased.
The tribunal affirmed the decision to cease payment for physiotherapy treatment as of 23 September 1998 but set aside and remitted the decision of 31 March 1999 for reassessment of the level of permanent impairment. The tribunal recommended that an appropriate multi-dimensional pain rehabilitation program be undertaken before a functional assessment and a non-economic loss assessment are carried out. The question of costs was reserved, with liberty to apply.
The tribunal's decision highlights the importance of thoroughly exploring treatment options before concluding that an impairment is permanent, and the necessity of reassessing the level of impairment when new evidence becomes available. The case also underscores the need for a comprehensive approach to pain management, including non-pharmacological treatments such as physiotherapy.
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