Adrian Precup and ASP Ship Management

Case [2015] AATA 467

[2015] AATA 467  

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2014/2468

Re

Adrian Precup

APPLICANT

And

ASP Ship Management

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance

Date 30 June 2015
Place Sydney

1.   The reviewable decision, being the decision of ASP Ship Management Pty Ltd made 9 May 2014, is set aside;

2.   The matter is remitted to the Respondent for reconsideration in accordance with the directions that:

(1)   subject to direction (2), from 17 February 2014 to the date of this decision, and as at the date of this decision, the amount of compensation payable to Mr Precup shall include the cost of the following medical treatment:

·    eight Coloplast catheters per day;

·    eight syringes of Lignocaine per day;

·    one Uro-safe urine collection bag per day;

·    eight lengths of connecting tubing per day; and

(2)   the amount of compensation payable to Mr Precup shall include the cost of eight Uro-safe urine collection bags per day prior to 10 February 2015.

3.   It is directed that within 14 days of the date of this determination each party may apply to the Tribunal for orders in relation to costs. Should neither party apply in accordance with the preceding direction, the costs of the proceedings incurred by Mr Precup are to be paid by the Company.

...........................[sgd].............................................

Deputy President J W Constance

Catchwords

COMPENSATION – seafarers - medical treatment – whether treatment reasonable to obtain in the circumstances – relevance of cost of different forms of the same treatment – compensation of such amount as is appropriate – decision set aside and remitted

Legislation

Seafarer’s Rehabilitation and Compensation Act 1992 (Cth) ss 3, 28

Cases

Comcare v. Lofts [2013] FCA 1197

Comcare Australia v Rope [2004] FCA 540

Re Jorgensen and Commonwealth of Australia (1991) 23 ALD 321

REASONS FOR DECISION

Deputy President J W Constance

30 June 2015

INTRODUCTION

  1. The Seafarers Rehabilitation and Compensation Act 1992 (Cth) provides compensation for seafarers and certain others who suffer injuries arising out of, or in the course of, their employment.

  2. When a seafarer obtains medical treatment for an injury, being treatment that it was reasonable for … [him/her] to obtain in the circumstances, compensation is payable for the cost of the medical treatment, of such amount as is appropriate, having regard to the nature of the treatment: see section 28 of the Act. It is to be noted at the outset that the Act does not provide for payment of the cost of medical treatment without qualification.

  3. “Medical treatment” is defined in section 3 of the Act.  The relevant paragraph of that definition reads in part:

    (f) the supply, replacement or repair of…  a medical, surgical or other similar aid or appliance … .

  4. Mr Precup is a marine engineer who has worked for various shipping companies in Australia and in Europe since he graduated in 1988.  He was employed by ASP Ship Management Pty Ltd (“the Company”) in Australia in March 1998.  He last attended work for…

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Adrian Precup and ASP Ship Management [2015] AATA 467
Case
[2015] AATA 467
Decision Date

CaseChat Overview and Summary

Adrian Precup and ASP Ship Management involves a dispute over the compensation owed to Mr Precup for medical treatment following an injury he sustained at work. The case was heard in the Fair Work Commission, which has jurisdiction over disputes arising from workplace injuries in Australia. The primary legal issue before the court was whether the treatment Mr Precup received was reasonable for him to obtain in the circumstances of his injury, and what the appropriate amount of compensation should be. The court had to determine if the Company's decision to limit compensation based on the cost of different treatment options was justified.

The Fair Work Commission found that the Company's decision to limit compensation was not in accordance with the statutory provisions governing workplace injury compensation. The court held that when determining whether the treatment was reasonable, the focus should be on what was reasonable for Mr Precup in his specific circumstances, not on the cost of alternative treatments. The cost of different forms of treatment should only be considered when determining the appropriate amount of compensation. The court emphasised that the subjective needs of the injured worker, related to the nature of the injury, should guide the assessment of reasonableness. The Commission set aside the Company's decision and remitted the matter for reconsideration, directing that Mr Precup is entitled to compensation for the cost of specified aids as of the date of remittal.

In conclusion, the Fair Work Commission ruled that the Company must reassess Mr Precup's compensation claims, taking into account the specific circumstances of his injury and treatment. The court directed that the amount of compensation should include the cost of certain medical aids from specific dates. The decision highlights the importance of considering the individual needs of an injured worker when assessing the reasonableness of treatment and determining the appropriate amount of compensation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons which follow, the decision under review will be set aside and the matter remitted to the Company for reconsideration in accordance with a direction that, as at the date of remittal, Mr Precup is entitled to be compensated for the cost of a defined quantity of specified aids per month.FACTS Unless stated otherwise, the following facts are found on the basis of the evidence of Mr Precup. Understandably, he is passionate about achieving the best result possible to enable him to best manage the very significant consequences of his injury. Whilst at times this caused him to be anxious to argue his case, I am satisfied that Mr Precup is a reliable witness who gave his evidence honestly and to the best of his recollection. As will appear from these reasons, he is a man who is ready to act on the advice of his health professionals and to try alternative treatment regimes. On 19 July 2005, Mr Precup injured his back in a fall while working on board a vessel. He ceased work on 3 August 2005 and has been unable to work since. Following the accident, Mr Precup developed urinary and bowel incontinence. In October 2006, he was referred to Dr Winsor, Consultant Rehabilitation Specialist, who diagnosed his having suffered cauda equina lesion which had resulted in the incontinence. The cauda equine are the nerves at the lower end of the spine. At the time Mr Precup was experiencing about four episodes of urinary incontinence per day and was incontinent of the bowel about five days out of seven. He was required to wear adult nappies. With the advice of Dr Winsor and assistance from Mr Arthur, Specialist Incontinence Nurse (to whom he was referred by Dr Winsor in November 2006), Mr Precup was able to develop a regime of treatment which enabled him to manage his condition in a manner socially acceptable to him. This involved, amongst other measures, self-catheterisation of the bladder several times per day and the use of a sheath condom attached by tubing to a urine collection bag. The bag used by Mr Precup is a vinyl bag with the brand name Uro-safe. When the hearing of this matter commenced in December 2014, Mr Precup was using Lignocaine as an anaesthetic and infection control agent when inserting the catheter. Lignocaine also served as a lubricant to assist insertion of the catheter. In accordance with the manufacturer’s instructions, Mr Precup discarded the leg bag, associated tubing and the sheath after each episode of self-catheterisation. This had been recommended by both Dr Winsor and Mr Arthur as a means of minimising the risk of infection. Prior to implementing this regime, Mr Precup experienced recurrent urinary tract infections and difficulties with leaking from the connection point of the sheath and the tubing. From 2010 until February 2015 Mr Precup did not suffer from any urinary tract infections. The circumstances in which he suffered the possible prelude to an infection in February 2015 will be referred to later in these reasons. Since 2006, Mr Precup has acted on the advice of Dr Winsor and Mr Arthur in managing his condition. He consults both Dr Winsor and Mr Arthur regularly.

Evidence

Evidence Before The Court

Ms Wicks said that she recommended a catheter attached to a bag as there was less risk of infection with a closed system. So far as the difficulty Mr Precup had experienced with the connection of the Careline bag, she said that there was a graduated connector available which should overcome this problem. These connectors are reusable, but require cleaning.Evidence of Dr Rutkowski, Rehabilitation Physician Dr Rutkowski assessed Mr Precup on 16 October 2014 at the request of the Company’s Solicitors. She provided a report dated 3 November 2014[22] and gave evidence.[22] Exhibit R7. In the opinion of Dr Rutkowski, long-term use of Lignocaine should not be recommended, by reason of “significant concerns for frequent and permanent usage.” [23] These include effects on the cardiovascular system.[23] Exhibit R7 p.9. Dr Rutkowski largely agreed with Ms Wicks’ recommendations. In relation to the likelihood of urinary tract infections, Dr Rutkowski said that the profession “sort of developed” an acceptance of an average of 2.2 infections per year over the whole population of people with spinal cord injury. She said that this was not ideal and that she would like to report no infections.[24] In her opinion, Mr Precup should have persisted with the trial of the LoFric catheter after he had been treated with the antibiotic. She disagreed with the advice given by Dr Winsor in this regard.[24] Transcript 02/04/15 p-309.CONSIDERATION Subsection 28(1) sets out three pre-conditions for the payment of compensation:·the employee has suffered an injury (being an injury which is compensable under the Act);·he/she has obtained medical treatment for the injury; and·the treatment was reasonable for the employee to obtain in the circumstances.Once these pre-conditions are met, compensation is payable for the cost of the medical treatment, but not necessarily in the amount of the cost actually incurred. The amount of compensation payable is qualified – it is “such amount as is appropriate, having regard to the nature of the treatment.”The application of subsection 28(1) It is accepted that Mr Precup meets the first two preconditions listed above in that he suffers a compensable injury and has obtained medical treatment for that injury. What is in dispute is whether that treatment was reasonable for him to obtain, and ultimately, what is the appropriate amount of compensation. In considering the final precondition in subsection 28(1) it is important to note that it is necessary to determine whether the treatment obtained was reasonable for the “injured worker” to obtain “in the circumstances”. This wording imports a subjective (i.e. related to the individual employee) element into the assessment – it is necessary to consider what was reasonable for the particular worker to obtain. The assessment of what was reasonable is not to be made without reference to the needs of the injured worker, so far as those needs relate to the nature of the injury.[25] The inclusion of the words “in the circumstances” supports the conclusion that the situation of the particular claimant is to be considered along with any other relevant circumstances. In Mr Precup’s case, it is necessary to look at the system of treatment and how any change may affect him.[25] See Re Jorgensen and Commonwealth of Australia (1991) 23 ALD 321at 325.

Decision

Reasons for decision

The Company must consider each claim made by Mr Precup on its merits, which include the relevant circumstances in which the treatment was obtained. This does not mean that the Company cannot inform Mr Precup that it will continue to pay compensation for recurring treatment at a particular rate until circumstances change. This is obviously the most efficient manner in which compensation can be determined and paid and would be to the benefit of both parties. In my view, in determining that the appropriate amount of compensation payable should change, a relevant consideration should be whether there has been prior consultation with Mr Precup and, if necessary, his medical advisers.Reviewable decision to be set aside and matter remitted to the decision-maker The reviewable decision, being the decision of ASP Ship Management Pty Ltd made 9 May 2014, will be set aside. The matter will be remitted for reconsideration in accordance with the directions that:(a) subject to direction 2, from 17 February 2014 to the date of this decision, and as at the date of this decision, the amount of compensation payable to Mr Precup shall include the cost of the following medical treatment:·eight Coloplast catheters per day;·eight syringes of Lignocaine per day;·one Uro-safe urine collection bag per day;·eight lengths of connecting tubing per day; and(b) the amount of compensation payable to Mr Precup shall include the cost of eight Uro-safe urine collection bags per day prior to 10 February 2015. It will be directed that within 14 days of the date of this determination each party may apply to the Tribunal for orders in relation to costs. Should neither party apply in accordance with the preceding direction, the costs of the proceedings incurred by Mr Precup are to be paid by the Company.

Ratio Decidendi

Legal Principle Established

In relation to the likelihood of urinary tract infections, Dr Rutkowski said that the profession “sort of developed” an acceptance of an average of 2.2 infections per year over the whole population of people with spinal cord injury. She said that this was not ideal and that she would like to report no infections.[24] In her opinion, Mr Precup should have persisted with the trial of the LoFric catheter after he had been treated with the antibiotic. She disagreed with the advice given by Dr Winsor in this regard.[24] Transcript 02/04/15 p-309.CONSIDERATION Subsection 28(1) sets out three pre-conditions for the payment of compensation:·the employee has suffered an injury (being an injury which is compensable under the Act);·he/she has obtained medical treatment for the injury; and·the treatment was reasonable for the employee to obtain in the circumstances.Once these pre-conditions are met, compensation is payable for the cost of the medical treatment, but not necessarily in the amount of the cost actually incurred. The amount of compensation payable is qualified – it is “such amount as is appropriate, having regard to the nature of the treatment.”The application of subsection 28(1) It is accepted that Mr Precup meets the first two preconditions listed above in that he suffers a compensable injury and has obtained medical treatment for that injury. What is in dispute is whether that treatment was reasonable for him to obtain, and ultimately, what is the appropriate amount of compensation. In considering the final precondition in subsection 28(1) it is important to note that it is necessary to determine whether the treatment obtained was reasonable for the “injured worker” to obtain “in the circumstances”. This wording imports a subjective (i.e. related to the individual employee) element into the assessment – it is necessary to consider what was reasonable for the particular worker to obtain. The assessment of what was reasonable is not to be made without reference to the needs of the injured worker, so far as those needs relate to the nature of the injury.[25] The inclusion of the words “in the circumstances” supports the conclusion that the situation of the particular claimant is to be considered along with any other relevant circumstances. In Mr Precup’s case, it is necessary to look at the system of treatment and how any change may affect him.[25] See Re Jorgensen and Commonwealth of Australia (1991) 23 ALD 321at 325. In this application, it is argued by the Respondent that the Tribunal should take into account the availability of cheaper alternatives to the treatment currently undergone by Mr Precup in formulating an assessment of whether that treatment was reasonable. The test of reasonableness requires a cost-benefit analysis. In my view, the relative cost of alternative items of equipment (as distinct from alternative modes of treatment) for the management of Mr Precup’s condition is not a relevant consideration in determining whether the preconditions have been met.[26] Instead, it should be considered when determining the appropriate amount of the compensation payable. For example, “treatment” does not refer to the particular brand of collection bag – this is an issue for determination in relation to the amount of compensation payable. [26] “... it will be common for the reasonableness of proposed medical treatment to be assessed in the light of alternative treatment options”: Comcare v Holt [2007] FCA 405, at para 25.