Yeats and Comcare (Compensation) - [2017] AATA 80

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 719
REASONS 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…

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 Yeats and Comcare (Compensation)

Details

AGLC: Yeats and Comcare (Compensation) [2017] AATA 80
Case: [2017] AATA 80
Decision Date: 27 January 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Yeats against a decision by Comcare regarding her entitlement to medical treatment expenses for compensable injuries. The dispute centred on whether certain treatments, specifically phototherapy and physiotherapy, were reasonably required for her accepted work-related injuries to her upper limbs, shoulders, and neck. The Administrative Appeals Tribunal (AAT) heard the case.

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

Despite this, the Respondent appeared to accept that there were two claims. Identification of the injuries for which liability to pay compensation was accepted is relevant to the question of whether particular treatment is reasonably required for them.THE EVIDENCE RECEIVED The Tribunal received the T documents into evidence, and a number of other documents were tendered into evidence, many comprising of extracts/articles from medical journals or other internet publications. The Tribunal also heard oral evidence from Mrs Yeats, her treating general practitioner, Dr de Burgh and Ms Kellie Wilkie, Physiotherapist. The Respondent called Associate Professor Barnsley to give evidence. Associate Professor Barnsley, Dr de Burgh and Ms Willkie were all closely questioned by the parties and the Tribunal. In her Statement of Facts, Issues and Contentions, Mrs Yeats questioned the expertise of Associate Professor Barnsley and the reliability of his views. Despite this, during the hearing she did not persist with this. For avoidance of any doubt, the Tribunal was satisfied of the specialist medical expertise of Associate Professor Barnsley and also of Ms Wilkie as a Physiotherapist. Mrs Yeats’ evidence was to the effect that she found the physiotherapy treatment from Ms Wilkie to be particularly beneficial. Specifically, she said it assisted or improved function and movement in the upper limbs, shoulders and neck. Despite being challenged about this given that she had not had physiotherapy for several years before 2013, she maintained her evidence. The Respondent identifies the injury for the purposes of the issue for determination to be “overuse injury to the common extensor of both elbows and bilateral trapezius muscle strain in the upper shoulder region,” having occurred on 23 January 1995. The description of injury as identified by the Respondent has been attributed to Dr Burke.[4] It certainly is consistent with the views expressed by Dr Burke in his report of 12 September 1996.[5] However, other descriptions of the injury are included in the T documents to which the second claim in 1995 relates. For example, the letter from the Respondent to Dr Burke refers to strained cervical vertebra facet joint and left trapezius muscle.[6] Dr Stevenson expresses the view in a report of 25 November 1997, that the problem is one of “diffuse cervico-brachial pain, which appears to have occurred mostly when spending reasonably protracted period at keyboard.” [7] He says that Mrs Yeats suffers “intermittent cervico-brachial discomfort probably due mostly to static loading and tension when sitting at a keyboard for a protracted period.” He considered that cervico brachial pain remained. Dr Humphries identifies in a report of 31 March 1998, “a postural syndrome effecting the cervico-thoracic spine and shoulder girdle.”[8] He describes slightly kyphotic thoracic spine. Dr Stewart considered Mrs Yeats suffered from mild bilateral epicondylitis, probably work related, but also noted the differing views about diagnosis. He also observed thoracic kyphosis, but his opinion about its relationship to work is confusing. He states that the thoracic kyphosis most likely developed in a non-work-related manner, then states that her symptoms may be due to poor posture or the ergonomic situation of her workplace, but there is no definitive evidence that either was the case.[9]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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