ZXCF and Comcare (Compensation) [2019] AATA 3572 (17 September 2019)
Division:GENERAL DIVISION
File Number: 2018/2989
Re:ZXCF
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans
Date:17 September 2019
Place:Perth
1.The Reviewable Decision, being the decision of a delegate of the Respondent dated 3 April 2018, is set aside.
2.The Tribunal substitutes a new decision that the Respondent is liable to pay compensation pursuant to s 16(1) of the SRC Act for nutritional supplements and craniosacral therapy, being therapeutic treatments obtained at the direction of the Applicant’s legally qualified psychiatrist, Dr Williams, for the purpose of treating the Applicant’s accepted PTSD condition.
................................[sgd]...................................
Senior Member Dr M Evans
CATCHWORDS
Compensation – Workers’ Compensation – Commonwealth employee – whether Comcare liable to pay compensation – Post Traumatic Stress Disorder – therapeutic treatment – at the direction of a legally qualified medical practitioner – craniosacral therapy – nutritional supplements – whether the treatment is medical treatment – whether the treatment is obtained in relation to an accepted injury – whether the treatment was reasonable for the Applicant to obtain in the circumstances – Clinical Framework – relevance of Clinical Framework – decision set aside and substituted with a new decision.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4(1), 4(1)(b), 5A(1), 5B(1), 14(1), 16(1)
CASES
Alamos v Comcare [2014] AATA 629
Bashar and Comcare Australia (2002) 69 ALD 784
Bayani v Australian Postal Corporation [2015] AATA 342
Blackwell and Comcare [2017] AATA 1357
Comcare v Holt (2007) 94 ALD 576
Comcare v Watson (1997) 73 FCR 273
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Durham and Comcare [2014] AATA 753
Jorgensen and Commonwealth (1990) 11 AAR 543, 23 ALD 321
King and Comcare [1998] AATA 822
Napier and Comcare [2017] AATA 1452
O’Day v Comcare [2017] AATA 1328
Perich and Secretary, Department of Social Services [2018] AATA 963
Pethes and Comcare [2018] AATA 483
Rope and Comcare (2013) 135 ALD 410
Stitt and Comcare [2018] AATA 3092
Thiele v Commonwealth of Australia (1990) 22 FCR 342
Topping v Comcare [2015] AATA 525
SECONDARY MATERIALS
Concise Oxford English Dictionary, 10th Ed
Shorter Oxford English Dictionary, 6th Edition
Freckelton I and Selby H, Expert Evidence: Law Practice, Procedure and Advocacy (5th ed), Thomson Reuters Lawbook Co, 2013
Upleger, John E, “The Effects of Upleger Craniosacral Therapy on Post Traumatic Stress Disorder Symptomology in Vietnam Combat Veterans” 11(2) Subtle Energies & Energy Medicine 123
REASONS FOR DECISION
Senior Member Dr M Evans
THE APPLICATION
The Applicant was employed in a clerical position by the Department of Social Services (Centrelink) until 16 July 1993, having worked there for approximately 7 years and
7 months (Exhibit R1, T10, pages 88 and 90).
On 23 October 1993, the Applicant lodged a compensation claim for “stress” (T8, pages 84-85). The Applicant described her symptoms in this claim as being “heart palpitations, blood pressure, jaw pain, “psychological”, lack of concentration, lack…
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- AGLC
- ZXCF and Comcare (Compensation) [2019] AATA 3572
- Case
- [2019] AATA 3572
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Tribunal was whether the nutritional supplements and craniosacral therapy constituted "medical treatment" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). This required the Tribunal to consider whether these treatments were obtained in relation to the applicant's accepted PTSD injury and, crucially, whether they were reasonable for the applicant to obtain in the circumstances. The Tribunal was also required to consider the relevance of the Clinical Framework in assessing the reasonableness of the treatment.
The Tribunal found that the craniosacral therapy and nutritional supplements were therapeutic treatments obtained at the direction of the applicant's legally qualified psychiatrist for the purpose of treating her accepted PTSD condition. The Tribunal reasoned that these treatments were integral to managing the physical effects of her PTSD, which included depression, anxiety, panic attacks, and insomnia. By substituting a new decision, the Tribunal ordered that Comcare was liable to pay compensation for these treatments.
Orders
Orders of the court
1. The Reviewable Decision, being the decision of a delegate of the Respondent dated 3 April 2018, is set aside.
2. The Tribunal substitutes a new decision that the Respondent is liable to pay compensation pursuant to s 16(1) of the SRC Act for nutritional supplements and craniosacral therapy, being therapeutic treatments obtained at the direction of the Applicant’s legally qualified psychiatrist, Dr Williams, for the purpose of treating the Applicant’s accepted PTSD condition.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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