Stitt and Comcare (Compensation) [2018] AATA 3092 (24 August 2018)
Division:GENERAL DIVISION
File Number: 2017/2763
2018/0949
Re:Sharon Stitt
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President S Boyle
Date:24 August 2018
Place:Perth
The decisions under review are affirmed.
..............[sgd].................................................
Deputy President S Boyle
CATCHWORDS
COMPENSATION – medical treatment – treatment which was reasonable for the Applicant to obtain in the circumstances – whether physiotherapy is reasonable treatment in the circumstances – decisions under review are affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 4, s 5A, s 5B, s 14(1), s 16
CASES
Alamos and Comcare [2014] AATA 629
Bashar v Comcare Australia (2002) 69 ALD 784; [2002] FCA 837
Blackwell and Comcare [2017] AATA 1357
Chowdhary and Comcare [1998] AATA 448
Comcare v Watson (1997) 46 ALD 481
Durham and Comcare [2014] AATA 753
Napier and Comcare [2017] AATA 1452
Pethes and Comcare [2018] AATA 483
Popovic and Comcare (2000) 64 ALD 171; [2000] AATA 264Rope and Comcare [2013] AATA 280
SECONDARY MATERIALS
Clinical Framework for the Delivery of Health Services
REASONS FOR DECISION
Deputy President S Boyle
24 August 2018
THE APPLICATIONS
The Applicant seeks review of two decisions made by delegates of the Respondent. Two separate applications were made and were heard together. They are:
1. Application 2017/2763
A decision dated 28 April 2017 which affirmed the original determination dated 27 March 2017 made by a delegate of the Respondent that the Respondent was not liable to pay compensation for medical treatment under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
2. Application 2018/0949
A decision dated 23 February 2018 which affirmed the original determination dated 6 February 2018 made by a delegate of the Respondent that the Respondent was not liable to pay compensation for medical treatment under s 16 of the SRC Act.
BACKGROUND
The Applicant was employed by the Department of Human Services as a clerk until 1995 when she was prevented from continuing to work by her thoracic outlet syndrome.
The Applicant has an accepted workers’ compensation claim in respect of aggravation of thoracic outlet syndrome (the accepted injury). The date of injury was 29 March 1995.
The Respondent has accepted liability between 1995 and 2015 for various forms of treatment in relation to the accepted injury.
In September 2011, the Applicant started seeing her current physiotherapist, Ms Elphick (R2.3 vol 1, T51).
According to the Respondent’s records the Applicant underwent 1190 sessions of physiotherapy between 1 May 1996 and 12 December 2016 (R2.2, T22).
On 25 November 2016, by agreement of the parties, the Administrative Appeals Tribunal (Tribunal) set aside a decision of a delegate of the Respondent dated 3 March 2016 and in substitution it was decided that (R2.1, T12):
Pursuant to subsection 42C(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the reviewable decision of the Respondent dated 3 March and, in substitution therefor, decides that, in…
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- Stitt and Comcare (Compensation) [2018] AATA 3092
- Case
- [2018] AATA 3092
- Decision Date
CaseChat Overview and Summary
The core legal issue before the Tribunal was whether the physiotherapy treatment proposed in the 2017 and 2018 treatment plans constituted "reasonable treatment" for the Applicant's accepted injury under section 16 of the *SRC Act*. This required the Tribunal to assess the necessity and efficacy of the proposed physiotherapy in managing the Applicant's ongoing pain and functional limitations, particularly in light of her extensive history of physiotherapy and other pain management interventions.
The Tribunal reasoned that while the Applicant's evidence indicated that physiotherapy provided some pain relief and helped maintain her functional capacity, it did not demonstrate that the specific treatment proposed in the 2017 and 2018 plans was reasonable in the circumstances. The Tribunal noted that the Applicant had undergone a significant number of physiotherapy sessions over many years and had also explored other pain management strategies, including multidisciplinary pain management programs and consultations with various specialists, without sustained significant benefit. The Tribunal concluded that the evidence did not establish that the proposed physiotherapy was likely to achieve the functional goals outlined in the treatment plans or that it represented a reasonable course of treatment given the Applicant's overall clinical picture and treatment history.
Consequently, the Tribunal affirmed the decisions under review, finding that the treatment set out in the 2017 and 2018 plans was not reasonable treatment in the circumstances.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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