The Tribunal considered whether breast reduction surgery
constituted reasonable medical treatment obtained in relation to
the compensable injuries.
The Tribunal found that in the circumstances, breast reduction
surgery was not obtained in relation to the compensable
Ms Howes commenced work at the Australian Taxation Office in
August 2003. As a result of her consistent use of the computer, in
April 2005, Ms Howes began suffering from intermittent neck pain.
In July 2005, she had constant neck and shoulder pain. Ms Howe
submitted a workers' compensation claim in September 2005.
Comcare accepted liability for "intervertebral disc
disorder – cervical region, sprain of the shoulder and right
arm, subacromial bursitis (right arm) and erosion of her teeth
(caused by grinding her teeth at night in response to the
Ms Howes claimed that the weight of her breasts increased the
pain in her neck and right shoulder, and that she had also put on
weight because of the medication she was taking. She sought
opinions from various specialist and claimed that each doctor
advised her that having a breast reduction would assist in
minimising pain associated with her accepted injuries.
On 2 November 2009, Ms Howes underwent a breast reduction, the
total cost of which was $19,956.80. In 2012, Ms Howe claimed
reimbursement for the cost of the breast reduction surgery under s
16 of the Safety, Rehabilitation and Compensation Act 1988
(the SRC Act). The claim was denied by Comcare on 22 August
The issue before the Tribunal was whether Comcare was liable
under s 16 of the SRC Act to pay Ms Howes compensation for the
costs associated with the surgery.
Section 16(1) of the SRC Act provides that where an employee
suffers an injury, Comcare is liable to pay for medical treatment
obtained in relation to the injury, provided that the treatment is
reasonable in the circumstances.
In order for costs of medical treatment to be reimbursed, it
must therefore be determined whether the surgery constituted
medical treatment under the SRC Act; was obtained in relation to
the compensable injuries; and was reasonable treatment in the
Prior to surgery Ms Howes sought the advice of Dr William Coyle
(Orthopaedic Surgeon). She claimed that prior to the surgery, he
advised that breast reduction surgery might reduce her pain. The
Tribunal found that there was no evidence other than Ms Howes'
assertions that Dr Coyle gave her that advice.
Dr David Maxwell (Orthopaedic Surgeon) gave evidence at the
hearing. Dr Maxwell's evidence was based upon Ms Howes'
symptoms and the results of various x-rays and scans, taken of her
cervical spine between 2005 and 2010. His view was that the breast
reduction surgery would not have affected Ms Howes' neck and
Ms Howes reported that about a month after the surgery, she had
continued to experience the symptoms, albeit to a lesser degree. Dr
Maxwell provided evidence that the symptoms "could resolve
spontaneously and ...improve, or get worse for no particular
reason". The Tribunal therefore concluded that the
surgery was not medical treatment obtained in relation to Ms
Howes' compensable injuries. The surgery was not reasonable
treatment in the circumstances and Comcare was not required to
compensate Ms Howe for the surgery.
Where an applicant requests compensation for medical treatment,
particularly non-standard medical treatment, it pays to revisit the
basic requirements at section 16. In this matter, the medical
evidence was particularly persuasive.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
An employer's duty is very high and can include engaging experts to inspect things such as stairways for latent defects.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).