Sommerville and Comcare (Compensation) - [2016] AATA 289

Sommerville and Comcare (Compensation) [2016] AATA 289 (5 May 2016)

Division

GENERAL DIVISION

File Number

2014/5928

Re

Catherine Sommerville

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Deputy President K Bean

Date 5 May 2016

Place Adelaide
The decision under review is varied so as to provide that as at and from 1 October 2014 to the date of this Decision, the following treatment was reasonable for Ms Sommerville to obtain, pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988:
(a)Physiotherapy treatment, excluding manipulative physiotherapy; and
(b)Supervised hydrotherapy – up to two sessions per week.

........... [Sgd] ........................................................
Deputy President K Bean
CATCHWORDS
COMPENSATION – Liability for physiotherapy and hydrotherapy treatment obtained in relation to accepted back injury – Whether reasonable treatment for applicant to obtain – Decision under review varied.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, subs 16(1)
CASES
Comcare and Watson (1997) 46 ALD 481
Re Chowdhary and Comcare [1998] AATA 448
Re Popovic and Comcare (2000) 64 ALD 171
Re Alamos and Comcare [2014] AATA 629
Re Durham and Comcare [2014] AATA 753
REASONS FOR DECISION
Deputy President K Bean
5 May 2016

The applicant, Ms Sommerville, is currently 58 years old. Many years ago, in 1978, she sustained a back injury during the course of her employment with the Commonwealth Bank of Australia, and unfortunately the effects of that injury have continued.
There is no dispute that the respondent, Comcare, remains liable to pay compensation in respect of the injury, being a “strained lumbar disc resulting in L4/5 disc degeneration”. What is in dispute, however, is whether Comcare remains liable to pay compensation to Ms Sommerville for particular types of treatment, namely physiotherapy and hydrotherapy.
On 1 July 2014, following a review by a Clinical Panel consultant, a Comcare delegate determined that compensation would be paid to Ms Sommerville for four physiotherapy sessions over three months to 1 October 2014, and two sessions per week of supervised hydrotherapy over three months, also to 1 October 2014.[1] However, the delegate also stated:
Your treating practitioner has agreed with the Clinical Panel consultant that your physiotherapy and hydrotherapy sessions will not be provided beyond 1 October 2014, and you will be discharged from your physiotherapy and supervised hydrotherapy treatment.
[1] Exhibit 1, T24/68.
On 26 September 2014, a review officer affirmed that determination.[2] In her reasons for decision, the review officer stated “ongoing physiotherapy and hydrotherapy does not meet the Clinical Framework and requirements of the legislation in your case”.
[2] Exhibit 1, T29/77.
On 14 November 2014, Ms Sommerville applied for review of that decision by this Tribunal[3], giving rise to these proceedings.
[3] Exhibit 1, T1/7.
I will first outline the applicable statutory framework and identify the issues with more precision, before addressing those issues by reference to the evidence and the contentions of the parties.
STATUTORY FRAMEWORK
The legislation which is applicable to determining Ms Sommerville’s ongoing compensation entitlements is the Safety, Rehabilitation and Compensation Act 1988 (the SRC…

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: [2016] AATA 289
Decision Date: 5 May 2016

CaseChat Overview and Summary

This matter concerned an appeal by Ms Sommerville against a decision by Comcare regarding her entitlement to physiotherapy and hydrotherapy treatment for an accepted back injury. The dispute centred on whether the treatment obtained by Ms Sommerville after 1 October 2014 was reasonable. The decision was made by Deputy President K Bean of the Administrative Appeals Tribunal.

The Administrative Appeals Tribunal was required to determine whether physiotherapy and hydrotherapy treatment obtained by Ms Sommerville after 1 October 2014 was reasonable, within the meaning of the relevant legislation, for her accepted back injury. This involved considering the purpose and benefit of such treatment, particularly in circumstances where it might only provide short-term alleviation of symptoms rather than a cure.

The Tribunal considered evidence from Ms Sommerville and a physiotherapist's report, which indicated that physiotherapy had been beneficial in managing exacerbations of her chronic low back pain. While acknowledging that much of the evidence suggested further physiotherapy might not yield long-term benefits, the Tribunal applied the principle that treatment can be considered "therapeutic" if its purpose is to alleviate pain, even if it does not cure the underlying injury. This interpretation aligns with the definition of "therapeutic treatment" in the relevant Act, which includes treatment for the purpose of alleviating an injury, and is consistent with the beneficial intent of the legislation.

The Tribunal varied the decision under review. It determined that, from 1 October 2014 to the date of the decision, it was reasonable for Ms Sommerville to obtain physiotherapy treatment, excluding manipulative physiotherapy, and to undertake up to two sessions per week of supervised hydrotherapy.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In light of my conclusions, I have decided to vary the decision under review so as to provide that as at and from 1 October 2014 to the date of this Decision, it was reasonable for Ms Sommerville to obtain physiotherapy treatment as required (excluding manipulative physiotherapy), and undertake up to two sessions per week of supervised hydrotherapy.DECISION The decision under review is varied so as to provide that as at and from 1 October 2014 to the date of this Decision, the following treatment was reasonable for Ms Sommerville to obtain pursuant to s 16 of the SRC Act:(a)Physiotherapy treatment, excluding manipulative physiotherapy; and(b)Supervised hydrotherapy – up to two sessions per week.

Ratio Decidendi

Legal Principle Established

For completeness, I note that Ms Sommerville’s evidence as to the benefits of physiotherapy in managing and settling exacerbations of her symptoms was corroborated to some extent by a written report of Ms Barrowcliffe, Physiotherapist, in relation to her treatment of Ms Sommerville in December 2014. In her report of 19 December 2014, Ms Barrowcliffe stated:Kate presented to us on the 9/12/14 for treatment of an exacerbation of her chronic low back and sciatic pain.…On examination Kate demonstrated globally limited lumbar range of movement, reduced straight leg raise on the left side, hypo-mobility and tenderness at the lower lumbar intervertebral and facet joints bilaterally and was tight and tender on palpation of the lumbar soft tissues.Kate was treated with a combination of soft tissue massage, joint mobilisation and ultrasound, along with reviewing her home lumbar mobilisation exercises and stretches. Kate would benefit from an additional 3-4 visits on a weekly to fortnightly basis to ensure her symptoms completely settle and her function does not decline. It would then be best for her to continue to self-manage with her hydrotherapy, pilates, home exercises and home management strategies.[11][11] Exhibit 2, ST2/2.Consideration I note that the bulk of the evidence before me is to the effect that, after 1 October 2014, further physiotherapy treatment could not be expected to result in long-term benefit to Ms Sommerville, although it may well result in the short-term alleviation of her symptoms and improvement in her function. Ms Sommerville’s evidence was that she had found physiotherapy particularly beneficial in the settling of flare-ups or aggravations. It is in this context that Comcare contends that further physiotherapy treatment is not “reasonable”, noting the amount of physiotherapy received by Ms Sommerville in the past, and the cost of ongoing treatment. It is clear from the applicable case law, that treatment can be “therapeutic”, even if its only effect is the reduction of pain. His Honour Justice Finn observed in Comcare v Watson[12]:The applicant has submitted that a treatment can only be “therapeutic” if its object is to cure a disease or injury. Though some dictionary definitions do emphasise the “healing or curative” connotation of the words “therapy” and “therapeutic”: see eg Shorter OED, 3rd ed; the latter's use in this context encompasses the alleviation of the pain of an injury. This view is consistent with the s 4 definition of “therapeutic treatment” which includes “treatment given for the purpose of alleviating an injury”: [emphasis added]. The Shorter OED, for example, defines “alleviation” as “the action of lightening … pain”. That usage is an appropriate one to apply here given the s 4 definition itself. And it permits a construction which accords with the beneficial purposes of the legislation: see Thiele's case, 380-381.[13][12] (1997) 46 ALD 481.[13] (1997) 46 ALD 481, at p 484.

Division	GENERAL DIVISION
File Number	2014/5928
Re	Catherine Sommerville
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President K Bean
Date	5 May 2016
Place	Adelaide