Reece and Comcare (Compensation)

[2019] AATA 3499

Reece and Comcare (Compensation) [2019] AATA 3499 (16 September 2019)

Division:GENERAL DIVISION

File Number:           2017/7494

Re:Joseph Reece

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mr. A. Maryniak QC, Member

Date:16 September 2019

Place:Melbourne

The Tribunal varies the decision under review with a determination that the Respondent is liable to compensate the Applicant for the Brooks Dyad Walker shoes under s 16 of the SRC Act.

............[sgd]............................................................

Mr. A. Maryniak QC, Member

Catchwords

COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 – whether cushioned thongs constitute “medical treatment” – where cushioned running shoes accepted as compensable – decision under review varied

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Comcare v Dalgleish [2018] FCA 2092

REASONS FOR DECISION

Mr. A. Maryniak QC, Member

16 September 2019

Background

1. The Applicant continues to have a low back condition referable to his compensable injury on 30 March 1982.  The condition, from time to time, results in symptoms in the Applicant’s left foot.  The Applicant claims compensation for Brooks Dyad Walker shoes and Orthaheel (Ease) thongs. The Respondent, having accepted liability for the orthotics ‘housed’ in certain shoes, rejected liability for such shoes and for thongs in a Determination dated 18 September 2017 and a reviewable decision dated 30 October 2017.

2. A decision in  this matter was held over pending the outcome of Comcare v Dalgleish [2018] FCA 2092.

3. As a consequence of Dalgleish, the Respondent now properly concedes it is liable to pay compensation to the Applicant for the claimed shoes which house his prescribed orthotics.

4. The issue remaining before the Tribunal is whether the Respondent is liable to pay compensation to the Applicant in respect of the thongs claimed.  Such claim is to be decided by reference to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) per Dalgleish [30] to [39].

   Section 39 of the SRC Act

5. Under s 39 of the SRC Act, a pre-requisite to the receipt of compensation is that a claimant must be undertaking or have completed or been assessed as incapable of undertaking a rehabilitation program. There is no evidence that the Applicant has met any limb of this pre-requisite, hence there is no entitlement to compensation under s39 of the SRC Act.

   Compensable under s 16

6. A claimant must satisfy three elements to receive compensation under s 16 of the SRC Act:

   (a)The claimed treatment must fall within the definition of medical treatment in s 4(1) of the SRC Act;

   (b)The claimed treatment must be ‘in relation to’ the injury; and

   (c)The claimed treatment must be ‘treatment that it was reasonable for the employee to obtain in the circumstances’.

   The Applicant’s Submissions

7. The Applicant maintains that the claimed thongs are a ‘medical treatment’ and that they fall within the same category as his claimed, —and now accepted, —shoes.  He states that the thongs are worn inside his house and at times when his shoes are not able to be worn.  He states that walking barefoot can be painful.  He submits that the thongs provide a ‘therapeutic effect’ and benefit to his compensable foot condition.

   The Respondent’s Submissions

8. The Respondent contends that the thongs do not fall within the definition of ‘medical treatment’.  They are not an ‘other similar aid or appliance’ nor a ‘curative apparatus’.  Footwear which is simply comfortable or helpful does not constitute ‘medical treatment’.

   Consideration

9. The Tribunal is cognisant of the well-settled principle that worker’s compensation legislation is remedial and should be construed liberally. However, on balance, it is not persuaded on the evidence, that the claimed thongs fall within s 16 of the SRC Act.

10. The thongs are not the same as the accepted shoes which house prescribed orthotics, and found to be ‘medical treatment’ in Dalgleish.  Whilst such thongs may be comfortable, they are not inextricably linked to the orthotics which clearly falls within the definition.  In any event, the evidence of the Applicant’s treating podiatrist, Mr Nankivell, is to the effect that the purpose of the thongs was to avoid the risk of a further and distinct injury, which may arise from walking barefoot.  This is contrary to any alleviation of symptoms in the foot caused by the accepted low back injury.  Further, there is no apparent reason why the Applicant cannot wear the accepted shoes around the house for any extended periods of walking inside.

11. The Tribunal concludes that the claimed thongs do not fall within ‘medical treatment’ as defined in s 4(1) of the SRC Act, and are distinct from the accepted shoes which house the prescribed orthotics. Further, on the evidence, the Tribunal is of the opinion that the claimed thongs are not obtained ‘in relation to’ the accepted injury.

12. The Tribunal varies the previous decision insofar as the Respondent is liable to compensate the Applicant for the Brooks Dyad Walker shoes, as conceded, under s 16 of the SRC Act. The determination that the Respondent is not liable to compensate the Applicant for the Orthaheel (Ease) thongs is unchanged.

13.      

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member

………[sgd]………………….
Associate

Dated:  16 September 2019

Last submission received:	14 April 2019
Advocate for the Applicant:	Self-Represented
Advocate for the Respondent:	Ray Ternes
Solicitors for the Respondent:	Lazarus Dobelsky Moray & Agnew Lawyers