Sam Conforti and K & S Freighters Pty Ltd - [2013] AATA 542

[2013] AATA 542

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2011/2444, 2011/4087

Re

Sam Conforti

APPLICANT

And

K & S Freighters Pty Ltd

RESPONDENT

DECISION

Tribunal
G. D. Friedman, Senior Member

Date 2 August 2013

Place Melbourne
Application 2011/2444: The Tribunal sets aside the reviewable decision of 6 June 2011 and substitutes the following decision:
(a)Mr Conforti suffered an injury left shoulder soft tissue bursitis which was first treated on 13 September 2006, to which his employment with the respondent contributed in a material degree, giving rise to compensation under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act);

(b)The respondent shall pay to Mr Conforti the costs of all medical and related treatment expenses incurred in respect of the injury under s 16 of the SRC Act;

(c)The respondent shall pay Mr Conforti’s legal costs and disbursements in respect of these proceedings under s 67 of the SRC Act.

Application 2011/4087: The Tribunal sets aside the reviewable decision of 13 September 2011 and substitutes the following decision:
(a)From 10 June 2011 to the present date and at the present date Mr Conforti has reasonably required physiotherapy treatment for his right shoulder from a physiotherapist and/or exercise physiologist as part of a functional restoration program;

(b)From 10 June 2011 to the present date and at the present date the respondent shall pay to Mr Conforti the costs of physiotherapy treatment expenses incurred in respect of subacromial bursitis, right shoulder under s 16 of the SRC Act;

(c)The respondent shall pay Mr Conforti’s legal costs and disbursements in respect of these proceedings under s 67 of the SRC Act.

..............................[sgd]..........................................
G. D. Friedman, Senior Member
COMPENSATION – truck driver – left shoulder injury – whether work-related – right shoulder injury – whether physiotherapy reasonably required
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 4(9), 7(4), 14(1), 16, 53, 67
Re Chowdhary and Comcare [1998] AATA 448
Re Jorgensen and Commonwealth [1990] AATA 129
Re Popovic and Comcare [2000] AATA 264
REASONS FOR DECISION
G. D. Friedman, Senior Member
2 August 2013

Sam Conforti commenced employment with the respondent in March 2006 as a truck driver. He developed problems in his shoulders, particularly the right shoulder, and ceased driving duties in September 2006. He has been performing office duties since then and has not returned to driving. On 6 June 2011 the respondent made a reviewable decision refusing his claim for compensation for left shoulder soft tissue bursitis on the basis that it was not work-related (Application 2011/2444). On 13 September 2011 the respondent made a reviewable decision ceasing liability for medical treatment in the form of physiotherapy for subacromial bursitis, right shoulder (Application 2011/4087). Mr Conforti seeks review of the decisions.
LEGISLATIVE BACKGROUND
Section 14(1) of the SRC Act, as it was at the relevant dates, provides:
14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if…

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.

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Details

Case: [2013] AATA 542
Decision Date

CaseChat Overview and Summary

Sam Conforti, a former employee of K & S Freighters Pty Ltd, sought compensation for work-related injuries under the Safety Rehabilitation and Compensation Act 1988. The dispute involved the costs associated with his medical treatment, particularly physiotherapy and related expenses. The matter was heard and decided by the Workers Compensation Tribunal of Western Australia. The primary legal issue was whether the costs of ongoing physiotherapy treatment for Conforti's shoulder injuries were reasonable and compensable under the Act. Specifically, the Tribunal had to determine if the physiotherapy constituted medical treatment and whether it was reasonable for the employer to bear the costs.

The Tribunal ruled that a functional approach to physiotherapy, through an active program administered by qualified professionals, constituted reasonable medical treatment. It found that the physiotherapy was necessary for the functional restoration of Conforti's shoulder injuries and should be compensated by the employer. The Tribunal determined that the employer, K & S Freighters Pty Ltd, was liable for the costs of all medical and related treatment expenses incurred by Conforti, including physiotherapy expenses. Additionally, the Tribunal ordered the employer to pay Conforti's legal costs and disbursements under the Act.

In summary, the Tribunal found in favour of Conforti and ordered the employer to compensate him for all reasonable medical treatment expenses related to his work-related shoulder injuries. The employer was also directed to cover the legal costs incurred by Conforti in pursuing this matter.

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

In all the circumstances the Tribunal finds that a functional approach to physiotherapy by means of an active physiotherapy program administered by an appropriately qualified physiotherapist or exercise physiologist constitutes medical treatment that is reasonable, and the cost should be met by the respondent. DECISION Application 2011/2444: The Tribunal sets aside the reviewable decision of 6 June 2011 and substitutes the following decision:(a)Mr Conforti suffered an injury left shoulder soft tissue bursitis which was first treated on 13 September 2006, to which his employment with the respondent contributed in a material degree, giving rise to compensation under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act);(b)The respondent shall pay to Mr Conforti the costs of all medical and related treatment expenses incurred in respect of the injury under s 16 of the SRC Act(c)The respondent shall pay Mr Conforti’s legal costs and disbursements in respect of these proceedings under s 67 of the SRC Act. Application 2011/4087: The Tribunal sets aside the reviewable decision of 13 September 2011 and substitutes the following decision:(a)From 10 June 2011 to the present date and at the present date Mr Conforti has reasonably required physiotherapy treatment for his right shoulder from a physiotherapist and/or exercise physiologist as part of a functional restoration program;(b)From 10 June 2011 to the present date and at the present date the respondent shall pay to Mr Conforti the costs of physiotherapy treatment expenses incurred in respect of subacromial bursitis, right shoulder under s 16 of the SRC Act;(c)The respondent shall pay Mr Conforti’s legal costs and disbursements in respect of these proceedings under s 67 of the SRC Act.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2011/2444, 2011/4087
Re	Sam Conforti
APPLICANT
And	K & S Freighters Pty Ltd
RESPONDENT

Tribunal	G. D. Friedman, Senior Member
Date	2 August 2013
Place	Melbourne