Wells and Comcare (Compensation)

Case [2022] AATA 1911

Wells and Comcare (Compensation) [2022] AATA 1911 (22 June 2022)

Division:                  General Division

File Number:          2018/2551

Re:Claudette Wells

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:A G Melick AO SC, Deputy President

Date:22 June 2022

Place:Hobart

The decision under review is affirmed.


.................[sgd].......................................................
A G Melick AO SC, Deputy President

Catchwords

COMPENSATION – work-related injury – whether Comcare is liable to pay compensation – whether Comcare is liable for treatment – effect of secondary condition on liability – whether treatment is reasonable – massage – acupuncture – gym program – length of treatment – effect of treatment – decision under review affirmed.


Legislation
Compensation (Commonwealth Employee’s Act) 1971
Safety, Rehabilitation and Compensation Act 1998

Cases
Alamos and Comcare [2014] AATA 629
Aylett and Comcare (2019) AATA 1474
Bashar v ComcareAustralia [2002] FCA 837
Bayani and Australian Postal Corporation [2015] AATA 342
Canute v Comcare [2006] HCA 47
Chowdhary and Comcare [1998] AATA 448
Comcare v Rope (2004) 80 ALD
Comcare v Holt [2007] FCA 405
Comcare v Watson (1997) 73 FCR 273
Durham and Comcare [2014] AATA 753
Ellison vComcare [2022] FCA 95
Evans and Comcare (Compensation) [2016] AATA 827
Howard and Comcare [2019] FCA 1031
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Popovic and Comcare (2000) 64 ALD 171
Re Jorgenson and Commonwealth (1990) 23 ALD 321
Rope and Comcare [2013] AATA 280
Rope and Comcare [2018] AATA 42
Topping and Comcare [2015] AATA 525
Wuth and Comcare [2022] FCAFC 42

Secondary Materials

Transport Accident Commission and WorkSafe Victoria, Clinical Framework For the Delivery of Health Services (2012)

REASONS FOR DECISION

A G Melick AO SC, Deputy President

22 June 2022

INTRODUCTION

  1. Since 1984, the Applicant has received compensation from Comcare (‘the Respondent’) to treat pain in her left arm and shoulder, which developed while she was employed by the Commonwealth.

  2. In 2008, the Respondent determined it was not presently liable for part of her treatment regime. The Applicant applied to the Tribunal for review and by consent, the parties agreed the Tribunal should partially limit the Applicant’s entitlement to massage.  

  3. On 20 February 2018 the Respondent determined it was not presently liable to pay for the Applicant’s remaining treatment, including massage, acupuncture and the gym-program (‘the treatment’). On 20 April 2018 the Respondent affirmed that determination (‘the Decision Under Review’).

  4. On 10 May 2018 the Applicant lodged an application for review and it is the Respondent’s present liability for the treatment that is the subject of this review.

    FACTS

  5. The Applicant began experiencing pain in her left arm and shoulder girdle on or around 11 May 1984. At the time, the Applicant was an employee of the Commonwealth and made a claim for compensation for repetitive strain injury.

  6. On 6 September 1984 the Respondent accepted liability for repetition strain injury of the Writer’s Cramp Style which was later changed to nerve root and plexus disorder (unspecified) (‘the accepted condition’).[1]

    [1] T-documents, 119.

  7. On…

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Details
AGLC
Wells and Comcare (Compensation) [2022] AATA 1911
Case
[2022] AATA 1911
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review by the Applicant against a determination by the Respondent, Comcare, to cease liability for the Applicant's medical treatment. The Applicant had suffered a work-related repetitive strain injury in 1984, initially accepted by Comcare as writer's cramp style and later revised to nerve root and plexus disorder (unspecified). The dispute centred on Comcare's present liability for ongoing treatment, including massage, acupuncture, and a gym program, which Comcare had declined to pay for on the basis that the treatment did not meet the principles of the Clinical Framework for the Delivery of Health Services.

The court was required to determine whether Comcare was liable to pay for the Applicant's ongoing treatment, specifically massage, acupuncture, and a gym program, and whether such treatment was reasonable in the circumstances. This involved considering the effect of any secondary conditions on Comcare's liability and assessing the reasonableness and efficacy of the treatments provided, particularly in light of the Clinical Framework.

The Deputy President found that the treatments were not reasonable in the circumstances. While acknowledging the Applicant's long history of pain and treatment, the court noted the extensive duration and cost of the massage therapy, which had continued for approximately 34 years and amounted to nearly $110,000. The court also considered the acupuncture sessions and the gym membership renewal. Applying the principles of the Clinical Framework, the court concluded that the treatments, despite being medical in nature, were not reasonable or effective in managing the accepted condition or any secondary conditions.

The decision under review was affirmed, meaning Comcare's determination to cease liability for the Applicant's treatment was upheld.

Orders

Orders of the court

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Background

Background to the litigation

On 10 May 2018 the Applicant lodged an application for review and it is the Respondent’s present liability for the treatment that is the subject of this review. FACTS The Applicant began experiencing pain in her left arm and shoulder girdle on or around 11 May 1984. At the time, the Applicant was an employee of the Commonwealth and made a claim for compensation for repetitive strain injury. On 6 September 1984 the Respondent accepted liability for repetition strain injury of the Writer’s Cramp Style which was later changed to nerve root and plexus disorder (unspecified) (‘the accepted condition’).[1][1] T-documents, 119. On 3 September 2008 liability for medical expenses for osteopathy, Pilates and massage was ceased. The Applicant requested a reconsideration and on 6 February 2009 the determination of 3 September 2008 was affirmed. The Applicant applied to the Tribunal for review of the reviewable decision dated 6 February 2009 and on 6 April 2010 the Tribunal made a consent decision accepting liability for a 90-minute massage per week with a review to be conducted after 12 months. Following the decision in 2010, apart from a period when she was in hospital in 2016, the Applicant continued to obtain massage treatment paid for by the Respondent, generally on a weekly basis, until 20 February 2018. Since 11 May 1984, the Applicant: (a)in the period from 1994 to 20 February 2018 has received approximately 1350 massages at a cost of almost $110,000; (b)the Applicant also had massages paid for by the Respondent prior to 1994 but, due to a change in the claims system, details of these massages are no longer available; (c)from January 2017 to 20 February 2018 the Applicant had 22 acupuncture sessions paid for by the Respondent; and (d)on 5 June 2017 the Applicant’s gym membership was renewed for 12 months. The renewal was paid for by the Respondent. By a determination dated 20 February 2018 the Respondent declined liability to pay for the treatment. Liability to pay for the treatment was declined by the Respondent because it considered that the treatment does not meet the principles of the Clinical Framework for the Delivery of Health Services (‘the Clinical Framework’). On 27 March 2018 the Applicant requested a reconsideration of the determination and by a review dated 20 April 2018, the Respondent affirmed the original determination. On 10 May 2018 the Applicant lodged in this Tribunal an application for review of the Decision Under Review. EVIDENCE The Applicant gave evidence at the hearing and called Dr Sharman, consultant occupational physician and Dr Francis, rheumatologist and pain physician, in support of her application. The Respondent called Dr du Plessis, neurologist and rehabilitation physician, to give evidence.The Applicant The Applicant is a counsellor and psychotherapist. She wrote a statement dated 19 January 2021 in support of her application which was tendered in evidence.[2] [2] Exhibit 2. The Applicant has held numerous roles in government agencies, commencing work at the age of 16. She has worked as a shorthand typist, has used a telex and has worked in roles where only a small amount of typing was required.

Evidence

Evidence Before The Court

On 27 March 2018 the Applicant requested a reconsideration of the determination and by a review dated 20 April 2018, the Respondent affirmed the original determination. On 10 May 2018 the Applicant lodged in this Tribunal an application for review of the Decision Under Review. EVIDENCE The Applicant gave evidence at the hearing and called Dr Sharman, consultant occupational physician and Dr Francis, rheumatologist and pain physician, in support of her application. The Respondent called Dr du Plessis, neurologist and rehabilitation physician, to give evidence.The Applicant The Applicant is a counsellor and psychotherapist. She wrote a statement dated 19 January 2021 in support of her application which was tendered in evidence.[2] [2] Exhibit 2. The Applicant has held numerous roles in government agencies, commencing work at the age of 16. She has worked as a shorthand typist, has used a telex and has worked in roles where only a small amount of typing was required. In 1984, the Applicant was seconded from Department of Science and Technology in Hobart to Canberra, where she worked as an Organisational Change and Industrial Change Manager. Her role consisted of writing reports by hand, which were often published. The Applicant explained that she began to notice pain in her left hand during the period where she was writing reports and using her left hand to write all the time. When asked about the onset of her symptoms, she explained it was the “constant use”. She also noticed her pain transformed from her elbow into her shoulder, however she had experienced some pain in both her elbow and shoulder from the beginning. When asked about which fingers the Applicant experienced pain in, she suggested it was her fourth and fifth finger. The Applicant appeared to have a strong understanding of the medical terms used to describe the locality of her pain, which is likely to be information she had obtained in consultation with her doctors. The Applicant’s pain increased; and on 20 March 1985 she saw Dr Frost again and complained of a constant ache in her left wrist and pain in the whole forearm when completing household tasks such as vacuuming or ironing. The Applicant agreed that she did not complain of finger pain at that consultation. In 1986 the Applicant retired. She explained that she had been seconded to Canberra from Hobart and the transition back was not possible, leaving retirement as the only available option.[3] She made a claim for compensation with Comcare in 1984, and between 1984 and her retirement in 1986, the Applicant explained that she had been not been working but was in communications with Comcare seeking further employment.[4][3] Transcript, 29. [4] Transcript, 31. She clarified that she was writing reports for a period of “probably four” years prior to 1984. She agreed that her onset of symptoms was in the days or maybe weeks preceding May 1984.[5][5] Transcript, 32. After retiring from the public service, the Applicant began a Master of Education degree in 1987, and provided counselling from her home where she was able to support her arm.[6] When she was studying, she took regular breaks and worked from a laptop that allowed her to support her arm. She received some superannuation payments and received income from her counselling work that paid for her living expenses.[7][6] Transcript, 33. [7] Transcript, 35.

Decision

Reasons for decision

Accordingly, I find that it was not reasonable for the Applicant to receive or undergo the treatments, even if medical treatments, in all the circumstances.CONCLUSION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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