Yeats and Comcare (Compensation) [2017] AATA 80 (27 January 2017)
Division:GENERAL DIVISION
File Number(s): 2015/3573
Re:Jean Yeats
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Ms S Taglieri, Member
Date:27 January 2017
Place:Hobart
1. The reviewable decision is affirmed in respect of the liability to pay for prolotherapy treatment.
2. The reviewable decision is set aside in respect of liability to pay for physiotherapy treatment and remitted to the Respondent for reconsideration in accordance with the recommendations of the Tribunal.
........................................................................
Ms S Taglieri, Member
Catchwords
Compensation – entitlement to medical treatment expenses – phototherapy – physiotherapy – whether reasonable treatment – liability for injury accepted – compensable injuries to upper limbs, shoulders and neck – decision affirmed in respect of prolotherapy – decision set aside in respect of physiotherapy treatment
Legislation
Safety Rehabilitation and Compensation Act 1988, ss 4(1), 16
Cases
Alamos and Comcare [2014] AATA 629
Australian Telecommunications Commission v Barker [1990] FCA 489
Commonwealth of Australia v Muratore [1978] 141 CLR
Manns and Comcare [2012] AATA 462
McDonald v Director-General of Social Security (1984) 1 FCR 354
Re Jorgensen and Commonwealth (1990) 23 ALD 321
Re Popovic and Comcare [2000] AATA 264
Smith and Comcare [2002] AATA 249
Tran and Comcare [2010] AATA 719REASONS FOR DECISION
Ms S Taglieri, Member
27 January 2017
INTRODUCTION
The Applicant, Mrs Jean Yeats, was a long standing employee of the Department of Social Security, later known as Centrelink. She worked in a training role for most of her employment and she ceased employment during 2005.
Mrs Yeats has applied to the Tribunal to review a decision of the Respondent concerning her entitlement to medical treatment expenses in connection with injury or injuries said to have been suffered during her employment.
The reviewable decision is dated 2 April 2015 and the Respondent determined that Mrs Yeats had no present entitlement to compensation in respect of medical expenses, particularly prolotherapy and physiotherapy treatments.[1]
[1] T41, letter from Respondent to Applicant dated 2.4.2015, pages 106 to 108 of the T documents.
The ultimate issue to be determined by the Tribunal is whether the decision to no longer pay compensation pursuant to section 16 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) for prolotherapy and physiotherapy treatment received after 2 April 2015, was the correct or preferable decision.
The Tribunal was informed at the commencement of the hearing that there was no dispute about the Employer’s liability for the injury. Rather, the dispute was confined to whether the treatment was reasonable in the circumstances to treat the injuries for which the Employer had accepted liability.
During the course of the hearing, Mrs Yeats abandoned part of her application to review the Respondent’s decision of 2 April 2015. That is, she withdrew the part of her application that sought a determination that the Respondent was liable to pay for continuing prolotherapy treatment.
The reasons of the Tribunal below are confined to the issue of whether physiotherapy treatment was reasonable in the circumstances…
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- Yeats and Comcare (Compensation) [2017] AATA 80
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CaseChat Overview and Summary
The AAT was required to determine whether phototherapy and physiotherapy constituted reasonable treatment for Mrs Yeats' accepted injuries. This involved assessing the evidence presented by both parties, including medical reports and oral testimony from treating practitioners and an independent expert, to ascertain if the proposed treatments were necessary and appropriate for the diagnosed conditions.
The Tribunal considered the evidence of Mrs Yeats, her treating general practitioner, and her physiotherapist, Ms Wilkie, who testified that physiotherapy had improved her function and movement. It also heard from Associate Professor Barnsley, whose expertise was accepted by the Tribunal. While Mrs Yeats initially questioned his expertise, she did not persist with this challenge during the hearing. The Tribunal found that the description of Mrs Yeats' injuries varied across different medical reports, but liability for injuries to her upper limbs, shoulders, and neck had been accepted. The Tribunal affirmed the decision in respect of prolotherapy but set aside the decision regarding physiotherapy treatment.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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