ZXCF and Comcare (Compensation) - [2018] AATA 3017

ZXCF and Comcare (Compensation) [2018] AATA 3017 (21 August 2018)
Division:GENERAL DIVISION
File Numbers: 2017/3349 and 2017/3615
Re:ZXCF
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:21 August 2018
Place:Perth

The Reviewable decision dated 18 May 2017 is affirmed.
..........................[sgd]...................................
Senior Member Dr M Evans
CATCHWORDS
Workers’ Compensation – Commonwealth employee – injury sustained prior to 1988 – reasonable medical expenses – chiropractic treatment – mild whiplash injury – prolapsed disc – whether treatment obtained is in relation to the workplace injury or for pre-existing degenerative changes which are unrelated to the injury – whether Applicant presently entitled to medical expenses – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 25(1), s 34J
Compensation (Commonwealth Government Employees) Act 1971(Cth) – s 27(1),
s 29(1), s 37(1)
Safety, Rehabilitation and Compensation Act 1988(Cth) – s 16(1), s 60(1), s 62(1),
s 62(2), s 62(5), s 64(1), s 124(1A)
CASES
Alamos and Comcare [2014] AATA 629
Chowdhary and Comcare [1998] AATA 448
Cremona and Comcare [2015] AATA 971
REASONS FOR DECISION
Senior Member Dr M Evans
21 August 2018
BACKGROUND

The Applicant is a 68 year old woman who was employed by the Department of Social Security (the Department) from April 1985 (T30). She ceased her employment with the Department in September 1995 (T40).
The Applicant sustained a lower back injury while she was moving files at work on 20 January 1986 (T3, T30 page 68). Liability was accepted under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act) for a “prolapsed disc”, following this incident (T4, page 15).
On 22 May 1986, when the Applicant was driving to work, she was involved in a motor vehicle accident (T6). The Applicant suffered “whiplash-type injuries to her cervical and thoracic spine” (T40 page 80, T53).
The Applicant made a claim for compensation for injuries sustained in this motor vehicle accident on 22 May 1986 (T7). Liability was accepted under the 1971 Act for “mild whiplash injury on 22/5/86 whilst on a journey to her employment” (the accepted injury) by a delegate of the Commissioner for Employees’ Compensation on 25 June 1986 (T8).
The Applicant was suffering from pre-existing degenerative changes in her spine as early as 1986 (T9). Liability was not accepted for these degenerative changes.
In a report dated 8 December 2017 (Exhibit R2, page 2), Dr John D H Bell (Dr Bell), a Consultant Orthopaedic Surgeon, noted that the Applicant “…has been on a pension for about the last 20 years”.
Dr William S C Chow (Dr Chow), the Applicant’s general practitioner, issued the Applicant with yearly Comcare Medical Review Certificates certifying the Applicant totally unfit for work, citing her whiplash injury from the motor vehicle accident, including from: 17 September 2010 to 17 September 2011 (T53, page 167); 9 September 2011 to 9 September 2012 (T53, page 168);…

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 ZXCF and Comcare (Compensation)

Details

AGLC: ZXCF and Comcare (Compensation) [2018] AATA 3017
Case: [2018] AATA 3017
Decision Date: 21 August 2018

CaseChat Overview and Summary

This matter concerned an application by ZXCF (the Applicant) to the Administrative Appeals Tribunal for a review of a decision made by Comcare (the Respondent). The dispute centred on Comcare's determination regarding the Applicant's entitlement to compensation for chiropractic treatments. Specifically, a Review Officer had affirmed a previous determination declining liability for certain chiropractic treatments and had also, on an "own motion" reconsideration, varied a prior acceptance of monthly chiropractic treatment and general practitioner consultations, finding that chiropractic treatment was no longer reasonable medical treatment for the Applicant's compensable condition.

The legal issues before the Tribunal were whether the Applicant was presently entitled to compensation for continued chiropractic treatment, and whether such treatment was reasonable medical treatment in relation to the workplace injury sustained in 1986. The Review Officer had noted a lack of clinical justification in the provided medical evidence to support a continued relationship between the conditions causing the Applicant's present symptoms and the 1986 workplace injury, suggesting that the symptoms might be related to pre-existing degenerative changes.

The Tribunal considered the available medical evidence, including reports from Dr Chow. The Review Officer's reasoning, which the Tribunal was asked to review, was that despite the Applicant continuing to experience symptoms and receiving yearly medical certificates, there was insufficient evidence to establish a continuing link between these symptoms and the 1986 injury. The Review Officer concluded that there was no present clinical justification to support that the symptoms were a result of the workplace injury, and therefore, no present entitlement to compensation for continued chiropractic treatment. The Tribunal's jurisdiction was limited to reviewing decisions made up to 5 August 2017, as liability for chiropractic treatment had been accepted up to that date in a prior determination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In a letter to the Applicant dated 18 May 2017 (T50), a Review Officer of the Respondent advised that she had reviewed the determination of 6 April 2017 and:(a)with respect to the Applicant’s request for a review of the determination of 6 April 2017 to decline liability for the Applicant’s chiropractic treatments dated 23 January 2017, 27 January 2017 and 30 January 2017, the Review Officer affirmed the determination; and(b)the Review Officer had also undertaken an “own motion” reconsideration of the acceptance of monthly chiropractic treatment and general practitioner consultations in the determination of 6 April 2017. The Review Officer varied the determination, finding that “I am no longer satisfied that chiropractic treatment is reasonable medical treatment for your compensable condition”, but affirmed acceptance of liability for general practitioner consultations. This will be referred to as “the Reviewable Decision”. In this same letter, the Review Officer noted that, with respect to the chiropractic treatment, although Dr Chow had been issuing yearly medical certificates certifying the Applicant unfit for work, he had not “provided any reports or investigation results which provide clinical justification to support that there is a continued relationship between the conditions causing present symptoms to that of the injury which occurred in 1986” (T50, page 100). Further, with respect to the chiropractic treatment, the Review Officer stated that “[t]here is insufficient evidence to conclude that you continue to sustain the effects of your compensable condition. Whilst you continue to experience symptoms, there is presently no clinical justification to support that the symptoms continue to be as a result of the workplace injury of 1986” (T50, page 100). The letter from the Respondent continued on to state “…having considered the available medical evidence, I find that you have no present entitlement to compensation for continued chiropractic treatment”. The Tribunal notes that, as liability for chiropractic treatment was accepted up to 5 August 2017 in the determination of 6 April 2017, the Tribunal does not have jurisdiction to review beyond 5 August 2017 as part of this application. The Applicant made an application to the General Division of the Administrative Appeals Tribunal (the Tribunal) on 30 May 2017, stating that she was requesting a review of the Respondent’s decision not to reimburse for future chiropractic treatment (T3). The Applicant was contacted by the Tribunal by letter on 9 June 2017, which requested that she more clearly identify the decision she wanted reviewed (T4, pages 12-13). In a letter to the Tribunal dated 14 June 2017 (T4, page 11), the Applicant identified that she was seeking review of the Reviewable Decision of 18 May 2017. JURISDICTION The jurisdiction of the Administrative Appeals Tribunal is established by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which states:(1) An enactment may provide that applications may be made to the Tribunal:(a) for review of decisions made in the exercise of powers conferred by that enactment; or(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

Ratio Decidendi

Legal Principle Established

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