Webster and Comcare (Compensation) - [2025] ARTA 742

Webster and Comcare (Compensation) [2025] ARTA 742 (6 June 2025)

Applicant/s:  Robert Webster
Respondent:  Comcare
Tribunal Number:                2023/6839
Tribunal:Senior Member G McCarthy
Place:Canberra
Date:6 June 2025

Decision:

The decision under review is affirmed.

……………[SGD]…………………..

Senior Member G McCarthy

Catchwords

COMPENSATION – accepted liability for ligament strain in lower back arising from a fall during a touch football game in September 1976 – claim for cost of medical treatment comprising up to 12 sessions of physiotherapy per year – physiotherapy costs paid between 1983 and 2023 by reference to medical certificates provided – liability to pay for compensation denied in 2023 on the basis physiotherapy no longer in relation to the 1976 injury – conflicting medical evidence as to whether the injury is permanent – conflicting medical evidence as to whether the physiotherapy is being provided in relation to the injury – consideration of resolution between conflicting medical evidence – consideration of persuasion necessary when departing from earlier decisions approving liability to pay compensation – Tribunal satisfied lower back ligament strain has resolved and physiotherapy therefore not in relation to the injury – decision affirmed

Legislation
Safety, Rehabilitation and Compensation Act 1988 – ss 5A, 14, 16

Cases
Comcare v Power [2015] FCA 1502
HNGN and Military Rehabilitation and Compensation Commission [2018] AATA 4096
Lees v Comcare [1999] FCA 753
Perich and Secretary, Department of Social Services [2018] AATA 963
Wills and Comcare [2024] AATA 1480
Woodhouse v Comcare [2021] FCAFC 95

Statement of Reasons

On 6 September 1976, nearly 50 years ago when he was 21 years old, the applicant injured his lower back while playing touch football at a Royal Navy Supply Centre. A witness report made the following day, 7 September 1976, records the applicant was carrying the football when he slipped and fell to the ground.[1]
[1] T documents, page 8
On 13 September 1976, the applicant lodged a claim for compensation arising from the injury.[2] He described his injury as ‘strained ligaments in lower back’.[3]
[2] T documents, page 9
[3] T documents, page 9
On the same day, the applicant’s medical practitioner (Dr Clifford) provided a medical report diagnosing the applicant with ‘ligament strain - lumbo-sacral’ arising from him ‘playing football for Dept’. Dr Clifford certified the applicant as fit to resume work that day, 13 September 1976.[4]
[4] T documents, page 11
On 17 December 1976, the respondent accepted liability for ‘ligament strain - lumbo-sacral region’ (the Injury) for the period ‘7 September 1976 to 10 September 1976 inclusive’.[5]
[5] T documents, page 13
I was not taken to any evidence of the applicant receiving medical treatment for the Injury until many years later. That evidence arose from a letter dated 21 February 1983 from the Department of Defence to Dr Beckett, a general practitioner in Canberra. In that letter, the Department stated the applicant ‘is now receiving physiotherapy’ for the Injury and asked Dr Beckett for an ‘up-to-date’ report as to whether he considered on the balance of…

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.

Continue reading Webster and Comcare (Compensation)

Details

AGLC: Webster and Comcare (Compensation) [2025] ARTA 742
Case: [2025] ARTA 742
Decision Date: 6 June 2025

CaseChat Overview and Summary

The case of Webster and Comcare involved a dispute over the ongoing compensation for a lower back injury sustained by the applicant during a touch football game in September 1976. The liability for the injury was accepted by Comcare, and the applicant was paid compensation for medical treatment, including physiotherapy sessions, from 1983 to 2023. In 2023, Comcare denied liability to pay for the cost of physiotherapy, arguing that it was no longer in relation to the original injury. The matter was brought before the Administrative Appeals Tribunal, which was required to determine whether the ongoing physiotherapy was related to the initial injury and whether the injury was permanent.

The Tribunal faced the challenge of resolving conflicting medical evidence regarding both the permanency of the injury and the relevance of the physiotherapy to the injury. The central legal issue was whether the physiotherapy sessions were still necessary due to the original injury or if they had become unrelated to it. Additionally, the Tribunal had to consider the level of persuasion required to depart from previous decisions that had approved liability to pay compensation. The Tribunal found that the lower back ligament strain had resolved, and the physiotherapy was no longer in relation to the injury, thereby affirming the decision to deny ongoing compensation.

The Tribunal's reasoning was based on a comprehensive review of the medical evidence presented. It concluded that the lower back injury had resolved, and therefore, the physiotherapy sessions were no longer related to the original injury. The Tribunal also noted the necessity for a high level of persuasion to overturn previous decisions approving liability for compensation. The Tribunal was satisfied that the evidence met this standard, leading to the affirmation of the decision to deny ongoing compensation for the physiotherapy costs.

The final orders of the Tribunal affirmed the decision to deny liability for ongoing compensation for the physiotherapy costs. The Tribunal found that the lower back ligament strain had resolved, and therefore, the physiotherapy was no longer related to the original injury. The decision was based on a detailed analysis of the conflicting medical evidence and the standard of proof required to depart from previous decisions approving liability for compensation.

Orders