Brown and Comcare
[2011] AATA 193
•23 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 193
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2010/0086 &
) No 2010/4978
GENERAL ADMINISTRATIVE DIVISION )
Re EMILY BROWN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date23 March 2011
PlaceCanberra
Decision The decisions under review are varied. .................[sgd]............................
Professor RM Creyke, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – travel costs in obtaining medical treatment – whether journey necessary – whether travel costs reasonable – whether medical treatment – decisions under review varied
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 16, 36
Safety, Rehabilitation and Compensation Regulations 2002 (Cth) reg 17
Australian Securities and Investment Commission v Donald (2003) 203 ALR 566
Fletcher v Commissioner of Taxation (1988) 19 FCR 442
Re Mecke and Comcare [2006] AATA 593
Re Pedder and Military Rehabilitation and Compensation Commission [2008] AATA 290
Re Stack and Military Rehabilitation and Compensation Commission [2010] AATA 334.
Re Stevens and Comcare (AAT 10498, 26 October 1995)
Re Stevens and Comcare (AAT 11961, 19 June 1997)
REASONS FOR DECISION
23 March 2011
Professor RM Creyke, Senior Member
1. Ms Emily Brown, who is 20 years of age, is an enrolled nurse who has been employed by The Canberra Hospital since 6 April 2009. On 18 June 2009 she suffered an injury to her lumbar spine while at work. At the time she was 19 years of age and had relocated to Canberra from Temora, NSW, her home town, about three months earlier. Ms Brown’s back injury was accepted as compensable by Comcare on 30 September 2009 and she is currently working in modified duties for six hours a day, four days a week.
2. There are two applications for review. In claim number 2010/0086 Ms Brown sought reimbursement of travel expenses for 12 trips between Queanbeyan and Temora and between Temora and Wagga Wagga, NSW for the period 25 June 2009 to 9 October 2009. The total travelling expenses claimed were $1589.40. On 26 November 2009, Comcare accepted that claim. However, on 4 December 2009 Comcare revoked the initial decision. An overpayment of $1589.40 was raised.
3. In the second decision, claim number 2010/4978, Ms Brown sought reimbursement of travel expenses for travel between Temora and Queanbeyan/Oxley in the period 20 July to 23 August 2010. The reasons for these journeys were to attend physiotherapy, nurses meetings, a meeting to fill out forms at the hospital, and meetings with Dr Ian Low, a specialist in occupational medicine. In total, $4026.00 was claimed. That claim was rejected by Comcare on 6 October 2010, a decision upheld on review on 9 November 2010.
4. On 8 January 2010 Ms Brown applied to the Tribunal for review of the first decision; and on 16 November 2010, she sought review of the second decision. The two matters were heard together on 1 March 2011 as the facts underpinning them overlap.
Legislation
5. The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) and the Safety, Rehabilitation and Compensation Regulations 2002 (Cth).
Safety, Rehabilitation and Compensation Act 1988 (Cth)
4 Interpretation
(1) ... "medical treatment" means:
(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
…
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
(e) an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or
…
(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
(i) any other form of treatment that is prescribed for the purposes of this definition.
"rehabilitation program" includes medical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.
"therapeutic treatment" includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
16 Compensation in respect of medical expenses etc.
16 (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
…
(6) Subject to subsection (7), if:
(a) compensation in respect of the cost of medical treatment is payable; and(b) the employee reasonably incurs expenditure in doing either or both of the following:
(i) making a necessary journey for the purpose of obtaining that medical treatment;
(ii) remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
Comcare is liable to pay compensation to the employee:
(c) in respect of the journey--of an amount worked out using the formula:where:
specified rate per kilometre means such rate per kilometre as the Minister specifies, by legislative instrument, under this subsection in respect of journeys to which this subsection applies.
numbers of kilometres travelled means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey).
(d) in respect of the employee remaining for the purpose of obtaining the treatment--of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.
(7) Comcare is not liable to pay compensation under subsection (6) unless:
(a) the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or
(b) if the journey made by the employee involved the use of public transport or ambulance services--the employee's injury reasonably required the use of such transport or services regardless of the distance involved.
(8) The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:
(a) the place or places where appropriate medical treatment was available to the employee;
(b) the means of transport available to the employee for the journey;
(c) the route or routes by which the employee could have travelled; and
(d) the accommodation available to the employee.
…
36 Assessment of capability of undertaking rehabilitation program
(1) Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee's capability of undertaking a rehabilitation program.
(2) An assessment shall be made by:
(a) a legally qualified medical practitioner nominated by the rehabilitation authority:
…
(3) The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment. …
(5) The relevant authority shall pay the cost of conducting any examination of an employee and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose.
(6) In deciding questions arising under subsection (5), a relevant authority shall have regard to:
(a) the means of transport available to the employee for the journey;
(b) the route or routes by which the employee could have travelled; and
(c) the accommodation available to the employee.
Safety, Rehabilitation and Compensation Regulations 2002 (Cth)
17 Forms of medical treatment
(1) For paragraph (i) of the definition of medical treatment in subsection 4 (1) of the Act, therapeutic treatment by, or under the supervision of, any of the following persons is prescribed: …
(d) a psychologist;
(2) For subregulation (1), the person must be:
(a) registered under the law of a State or Territory providing for the registration of persons of that kind; or
(b) if there is no such law, a member of a relevant professional association.
Issues
6. The issues are:
·Whether Ms Brown’s travel from 25 June 2009 to 9 October 2009 was necessary for the purpose of obtaining medical treatment for the injury.
·Whether Ms Brown’s travel between 20 July 2009 and 23 August 2010 was necessary for the purpose of obtaining medical treatment for the injury.
·Whether there were other places closer to Ms Brown’s residence where appropriate medical treatment was available to Ms Brown during the relevant periods.
·Whether Ms Brown was entitled to compensation under section 16 of the Act for journey expenses incurred while seeking medical treatment for the periods 25 June 2009 to 9 October 2009 and 20 July 2009 to 23 August 2010.
Background
7. Ms Brown was employed as an enrolled nurse at The Canberra Hospital. Following her appointment as an enrolled nurse at The Canberra Hospital, Ms Brown moved to a flat in Queanbeyan, NSW, just outside the ACT border. She formerly lived at Temora, NSW, which is about 230 km from Queanbeyan.
8. On 18 June 2009, Ms Brown was walking a male patient to the bathroom. He lost his footing and fell against Ms Brown who had to support his weight (approximately 46 kilograms) until another nurse could find a chair in which he could sit.
9. Ms Brown said her back was twisted due to the incident and was further aggravated because she had to support his whole weight while the patient was transferred to the chair. She did not feel discomfort at the time, but said she did so within 12 hours of the incident. Subsequently, on 19 June 2009, she reported the injury. She lodged a workers’ compensation claim for ‘back pain’ on 26 June 2009.
10. Ms Brown’s legal advisers also noted on 15 December 2009, that Ms Brown had:
… complained to her employer prior to this event that this patient was … a higher dependency patient and therefore needed a different standard of care but her employer did not take any further action … Since her accident this patient has been categorised as a higher dependant [sic] patient and therefore has required high dependant [sic] care.
11. As she was unfit for work following the injury Ms Brown moved back to Temora, partly for financial reasons and to receive home care. Ms Brown’s initial workers’ compensation claim was rejected on 27 July 2009.
12. Ms Brown confirmed at the hearing that, as she had been employed for only three months before the accident, she had accrued just four weeks of paid leave. That information was corroborated by an email from Ms Regina Ginich, Ms Brown’s nurse manager, to Ms Kellie Noffke, Assistant Director of Nursing, stating that after 7 August 2009 Ms Brown would have used up all her leave and ‘would be on leave without pay’.
13. As Ms Brown was faced with paying rent for her flat in Queanbeyan for the remainder of a 12 month lease, and because she had other bills, she borrowed about $5,000 from her parents and her grandparents to tide her over. She was on Centrelink benefits from mid August to early October.
14. In response to a request for particulars, Ms Brown’s solicitors stated: ‘The Applicant notes that she did not return to Temora as a resident; she returned to her family for short periods to receive home care and attend Medical Practitioner/s’. However, Ms Brown’s statement of facts, issues and contentions, dated 31 May 2010, claimed she had relocated to Temora for the period 25 June to 9 October 2009. A relocation notice dated 31 July 2009 is on file changing her postal address from her Queanbeyan residence to an address in Temora.
15. In early November 2009, her claim having been accepted, Ms Brown moved back to her accommodation in Queanbeyan and she has since repaid the monies she borrowed. Ms Brown commenced a graduated return to work on 16 March 2010.
16. Immediately after the accident, Ms Brown sought treatment from a medical practice in Temora. She said she did so because she could not access a medical practitioner in the Canberra area within a reasonable timeframe of 72 hours after the injury. Temora is some 230km from Ms Brown’s residence in Queanbeyan and about 83 km from Wagga Wagga, NSW, the next centre closest to Temora with good medical facilities.
17. In the period June 2009 to November 2009 Ms Brown continued to seek treatment at various medical practices in Temora. Ms Brown said that initially she could not see her usual general practitioner in Temora, Dr M.A.R. Kamath of Hoskins Street Surgery as he was away for six months. She instead accepted an appointment after the accident with Dr Prabin Pathak at the St Mary’s and St John’s surgery in Temora.
18. She said she had considerable confidence in Dr Kamath and has continued to see him for an unrelated condition from which she suffers. However, since at the time of the accident Dr Kamath had referred his patients to Dr Pathak and she ‘was confident that he would only refer his patients to another doctor of equal standing’, she accepted his recommendation. So when her mother arranged an appointment with Dr Pathak after the accident, she agreed to see him.
19. In late July 2009 Dr Pathak was transferred away from Temora. This was shortly after Ms Brown started seeing him. As a consequence, she then transferred to Dr Kurtzer, Victoria Street Surgery, Temora. She said he was a doctor with whom she had worked professionally, with whom she felt comfortable, and with whom she had a good rapport. She saw Dr Kurtzer for the first time on 10 August 2009.
20. Ms Brown said she had continued to see Dr Pathak and Dr Kurtzer because she believed she would receive consistent treatment from them for her conditions and because she believed they genuinely cared about the level of care and ongoing treatment she received. It was for that reason she said that she did not attend a ‘walk in’ clinic such as the Phillip Medical Centre, Canberra, during this period.
21. At the same time she claimed:
During the entire time I was being treated by Dr Pathak and Dr Kurtzer I was always trying to find a doctor in Canberra. I never stopped trying. I would continually ring doctors’ surgeries, and speak with nurses and doctors at Canberra Hospital where I am employed.
22. Ms Brown said she tried medical practices at Crawford Street Medical Clinic, Queanbeyan, Tuggeranong Square Medical Practice, Rutledge Plaza Medical Centre, Oasis Medical Centre, Phillip Medical Centre and Southlands Medical Practice, the last five-mentioned all being in Canberra. In each case she said they either did not accept compensation claims, were not accepting new patients, or could not see her within a week. She did not move to a medical clinic in Canberra during the relevant periods covered by these claims.
23. Ms Brown lodged a workers’ compensation claim on 26 June 2009 when she saw Dr Pathak who initially diagnosed her condition simply as ‘back pain’. After a request for clarification, Dr Pathak amended the diagnosis to ‘vertebral dysfunction with non-radicular pain’. Despite the amendment, on 27 July 2009 Comcare denied liability to pay compensation because the diagnosis was insufficiently precise for the purposes of a compensation claim. However, on reconsideration Comcare accepted liability for an ‘unspecified back disorder’ on 30 September 2009.
24. On 1 July 2009 Dr Pathak reported Ms Brown was still feeling pain but it was ‘better than before’. An initial CT scan on 1 July 2009 conducted at Wagga Wagga, noted early disc degeneration at L4/5 and ‘shallow posterior disc bulge’ but no nerve or spinal cord compression. A CT scan of her spine conducted on 28 July 2009 showed no abnormality. A further CT scan of 1 September 2009 disclosed some ‘mild increased activity’ at T12/L1.
25. According to Ms Brown, the injury to her lumbar spine meant she had difficulty with jogging, walking, doing domestic and household maintenance duties, sitting for long periods of time, sleeping, and sexual activities. She says she can no longer participate in social or recreational activities she formerly enjoyed, suffers from back ache, a psychological injury, anxiety, depression, and now has to take medication.
26. The Canberra Hospital allocated Ms Brown a rehabilitation case manager, Ms Andrea Chapman, who is based in Canberra and first saw Ms Brown on 7 July 2009. By then Ms Brown was also receiving free physiotherapy treatment in Queanbeyan from Mr Noel Priest, Injury Prevention and Management Clinic at The Canberra Hospital. Ms Brown attended an early intervention program at the Injury Prevention and Management Clinic on 23 June 2009, 6 July 2009, 16 July 2009, and 21 August 2009.
27. On 10 July 2009, a meeting was held in Canberra between Ms Brown, Ms Chapman, Ms Ginich, the Acting Director of ACT Nursing, Ms Jeanette MacCullagh, a clinical nurse consultant, Ms Marina Buchanan-Grey, and Ms Cassie Caddy, of the rehabilitation service, Recovre, to discuss Ms Brown’s rehabilitation and treatment.
28. Witness statements have been filed by those present at the meeting. At the meeting concern was expressed about Ms Brown driving the long distances to Temora since the drive could exacerbate her symptoms. Travel time is normally about three hours. However, Ms Brown said she stopped regularly to relieve her back which meant that the trip from Queanbeyan to Temora on occasions had taken up to six hours.
29. Ms Brown asserted that on 12 July 2009 she discussed with Dr Pathak the issue of the effect on her back of travel between the Canberra district and Temora. She said his advice was that, provided she had sufficient stops and stretches on the journey, driving would not affect her injury. Mr Priest confirmed that advice at a physiotherapy session on 15 July 2009. Dr Kurtzer, at a meeting on 12 August 2009, also agreed. However, Ms Brown also noted she ‘ended up having to buy a new car, because of the back pain which the Hyundai aggravated and had broken down on me during travel’.
30. At the meeting at The Canberra Hospital on 10 July 2009, Ms MacCullagh said she was concerned because Ms Brown appeared to be in pain and was clearly uncomfortable being seated for the duration of the meeting. Ms MacCullagh advised Ms Brown to seek the assistance of her aunt, a former Director of Nursing, to help her find a GP in Queanbeyan. Failing that, she offered personally to assist with the name of her local general practitioner or through the GP Liaison Officer at The Canberra Hospital. This statement was corroborated by Ms Chapman. At the hearing Ms Brown confirmed she had sought the help of her aunt to find her a suitable GP in the local area. Her aunt had suggested the Crawford St Medical Clinic in Queanbeyan but they could not see her.
31. Ms Caddy also recorded in her notes of the meeting that Ms Brown had agreed to try to find a treating doctor locally. However, the notes recorded: ‘IW [Injured Worker] advised that she was reluctant to consult another GP due to another condition’. Ms Caddy noted that Ms Brown had indicated she would prefer to continue treatment with Dr Pathak as she said she would be travelling to visit her parents in Temora once a fortnight.
32. In her statement of 6 January 2010, Ms Brown said that at the 10 July meeting she expressed that ‘it wasn’t worth trying to find a new doctor until I had a proper diagnosis or until all investigations have been completed’, and ‘they all agreed with me on this decision’.
33. In a statement by Ms Tania Dufty, Director of Nursing, The Canberra Hospital, dated 18 May 2010, Ms Dufty said that it was her understanding that Ms Brown ‘was currently staying in Temora with her parents and that was the reason … she sought GP treatment there’. At the same time she said, at a meeting with Ms Brown on 21 August 2009, that since her rehabilitation providers were based in Canberra, other medical treatment was being sought in Canberra and Ms Brown was to return to work in Canberra, it ‘would be the best way forward for her rehabilitation’ to find a clinic in Canberra.
34. Ms Ginich said in her statement that the issue of Ms Brown using her local GP was ‘not pushed as time went on. We understood her family were in Temora and given she was not working, it appeared reasonable for her to spend time in Temora with her family’. A similar statement was made by Ms Noffke. Ms Ginich also noted that she assumed Ms Brown was living in Temora since all her medical certificates were from practices there. She noted, however, that she was unable to say whether Ms Brown was resident in Temora or visiting for an extended period.
35. In her statement Ms Caddy said it was her understanding that Ms Brown was living in Temora during her time off work ‘and therefore it seemed appropriate that she seek treatment there’.
36. In her statement Ms Jeanette MacCullagh said that she had confirmed it would be preferable that Ms Brown find a GP in the local area to assist with her rehabilitation and RTW program ‘as it is general practice to have rehabilitation providers attend some GP consultations with the injured worker’. Ms Brown had indicated she was living in Queanbeyan, so The Canberra Hospital had ‘retained rehabilitation providers in the local area’.
37. In response to Ms Brown saying she would be visiting Temora fortnightly and could arrange GP visits on those occasions Ms Chapman noted that she ‘was wary of this decision given it would be more difficult to institute a rehabilitation and return to work plan with a doctor who was interstate’. However, she noted: ‘I appreciated the Applicant was young and may need support from her family. It also appeared that during her time off work she would be spending time in Temora’.
38. Ms Chapman noted that when she became aware that Ms Brown was not receiving pay, and after Comcare initially denied liability, Ms Brown had ‘told me she could not keep up with the rent on her Queanbeyan residence and she wanted to go home’. Accordingly, Ms Chapman advised Ms Brown to apply for benefits from Centrelink. At the hearing, Ms Brown provided evidence that she had followed this advice and had obtained Centrelink benefits between 14 August 2009 and 7 October 2009.
39. Ms Brown attended the ACT Neuro Spine Clinic on 3 August 2010 where Dr Justin Pik, neurosurgeon, reviewed her MRI from 1 July 2010. Dr Pik’s report said the MRI showed a ‘minor degree of desiccation and central disc bulging of the L4/5 disc’. His report noted that the ‘rest of the lumbar intervertebral discs were all normal in appearance. There was no evidence of any canal stenosis, nerve root compromise or foraminal stenosis’. In Dr Pik’s view Ms Brown had ‘features suggestive of discogenic low back pain’ probably arising at the L4/5 disc and he reported he had discussed whether surgery was necessary.
40. Ms Brown had three trips to see Dr Ian Low, a specialist in occupational medicine, who practises in Canberra, for an assessment of suitability for a rehabilitation program.[1] Dr Low provided a report on 4 August 2009 in which he diagnosed generalised anxiety disorder, and recommended as rehabilitation psychotropic medication, psychological counselling, gentle stretching exercises and that she should cease physiotherapy.
[1] As required by the Act s 36.
41. In a second report dated 28 October 2009, Dr Low noted that Ms Brown’s condition had not improved. In his view, her condition was not physical but the symptoms were due to ‘tightness in her spinal musculature consequent upon a disturbance in her emotional functions with certain physical activities and postures increasing the muscle tightness'. On this occasion he repeated her need for psychological counselling and recommended she be referred to Ergogym, located at Phillip, ACT for a more intensive exercise program.
42. In a third report dated 5 February 2010, Dr Low noted considerable improvement, stating she would be capable of commencing a graduated return to work program and that the program at Ergogym should be directed to settle the pain radiating into her left buttock. Despite her improvement he noted ‘she will not be able to perform unrestricted nursing duties in the future’.
43. In addition to these appointments with Dr Low, commencing on 24 March 2010 Ms Brown had at least 13 appointments with Ms Natalie Campbell, a psychologist who also practises in Canberra. Initially Ms Brown was seeing Ms Campbell every fortnight, but at the hearing Ms Brown said this had reduced to once a month but was continuing. Ms Brown also attended a physiotherapist, Ms Dianna Howell, at Ergogym. Reports were provided by Ms Howell on 10 December 2009, on 1 March 2010, and a discharge report on 6 April 2010.
44. Ms Brown had medical certificates for being off work continuously from 26 June 2009 to 6 September 2009. She was certified fit to return to work by Dr Kurtzer on a graduated return basis and with certain restrictions from 7 September 2009. However, there were divergent views by her medical practitioners about her ability to do so as Ms Brown was still experiencing pain and it was agreed at a meeting with her rehabilitation and support team on 4 September 2009 that she would remain off work. On 23 November 2009 Comcare acknowledged receipt of a Return to Work Plan (RTWP) for Ms Brown by Recovre. The RTWP was scheduled to last for 14 weeks. Ms Brown returned to work on a graduated return basis on 1 March 2010 but in a non-nursing capacity.
Other evidence
45. The Southlands Medical Practice, the Phillip Health Centre, and the Crawford St Medical Clinic, have provided written evidence that they were all accepting new patients in June 2009, that they accepted compensation patients, and in relation to the first two practices, that a person could get an appointment on the day. For the Crawford St Medical Clinic, an appointment could usually be obtained on the same day but definitely within three days.
46. The Oasis Medical Centre said it was taking new patients in June 2009 but the books may not have been open on every day between June 2009 and January 2011. They also acknowledged that it was unlikely they were taking compensation patients and on average patients will wait for up to eight months for a new patient’s appointment.
47. The Rutledge Plaza Medical Centre noted that in June 2009 they had two doctors planning maternity leave, the Registrar doctor was scheduled to be replaced in July, and that the two senior doctors ‘were not (in general) accepting new patients, but other doctors in the practice were doing so’. It also acknowledged that there were times in the June 2009 to January 2011 period when new patients were not being accepted.
Consideration
48. Ms Brown is an ‘employee’ for the purposes of the Act, being employed by an ACT Government agency, The Canberra Hospital, under contract.[2] She also has an accepted injury, for which ‘medical treatment’ has been sought. Therefore she meets the preconditions to section 16 of the Act.
[2] Act s 4(1), 5(1)(a) – ‘employee’.
49. The principal issue for the Tribunal is whether some or all of the travel undertaken by Ms Brown for the purpose of obtaining ‘medical treatment’ for her accepted back condition was ‘reasonably incurred’ and whether the journeys were ‘necessary’ to obtain that medical treatment (section 16(6)(b)(i)). Whether the expenditure on a journey is ‘reasonably incurred’ and is ‘necessary’ are questions of fact and must take account of the particular circumstances relating to Ms Brown and the nature of her medical conditions and treatment.
50. Comcare contends that Ms Brown relocated to Temora from Queanbeyan between June and November 2009. Hence there was no need to pay travel expenses between Queanbeyan and Temora since she was living in Temora. Comcare argues that this travel also had the potential to aggravate her back condition and compromise the benefits of her medical treatment.[3]
[3] See e.g. Re Mecke and Comcare [2006] AATA 593.
51. Comcare also contends that there were numerous medical practices in Canberra or Queanbeyan which Ms Brown could have attended and hence travel to Temora from Queanbeyan was not a ‘necessary’ journey. They also suggest that she did not make reasonable efforts to find such a practice locally. For that reason their conclusion is that the travel was a matter of personal choice, not a necessity.[4]
[4] See e.g. Re Stevens and Comcare (AAT 10498, 26 October 1995).
52. In response to Ms Brown’s claim that she wanted the benefit of an established doctor-patient relationship, Comcare noted the words of Senior Member Gibbs in Re Stevens and Comcare:
While the desire of [the applicant] to have a long-term doctor/patient relationship is entirely understandable, the evidence is that medical treatment appropriate to his compensable injury is available in Corowa. The evidence does not support a contention that a delay of a day or so in securing an appointment is critical in terms of the treatment required for [the applicant’s] symptoms.[5]
[5] Re Stevens and Comcare (AAT 11961, 19 June 1997) at [26].
53. Payment of compensation for a journey is only made in respect of journeys in excess of 50 kilometres for the return trip (section 16(7)(a)). As the return journeys between the Canberra region and Temora and between Temora and Wagga Wagga exceed 50 km, it is those journeys which must be considered.
54. A preliminary question is the starting place for any eligible journey. The Act provides no assistance other than that the journey be ‘necessary’. It has been assumed in the case law that the journey commences at the person’s place of residence. For example, in Re Stevens and Comcare[6] when Mr Stevens moved from living in a suburb of Melbourne to live in Corowa, NSW, and claimed reimbursement of expenses for his travel from Corowa to obtain medical treatment from a medical practitioner in his former Melbourne suburb, it was accepted that it was the journey from his Corowa residence to Melbourne which was relevant.[7] It can be assumed, accordingly, the normally any round trip commences at the person’s current residence.
[6] Re Stevens and Comcare (AAT 10498, 26 October 1995).
[7] Ibid.
55. The first issue, therefore, in relation to Ms Brown’s claim is the location of her residence in the relevant periods. The Tribunal finds that in the period 26 June to 8 November 2009, Ms Brown was resident in Temora. At the hearing, Ms Brown said she was ‘primarily living at Temora’ in this period. She acknowledged in evidence, however, that when she started attending Ergogym, in early November 2009, her place of residence reverted to Queanbeyan. As she agreed, the ‘place where [she was] spending [her] nights’ changed. Around this time, her compensation payments began, and her Centrelink benefits ceased, suggesting the financial pressures which were part the reasons for her relocation had also dissipated by November 2009.
56. In the intervening period from June to early November 2009, according to the Tribunal’s calculations based on the history of journeys and appointments at this time, Ms Brown spent 13 weeks or some three months in Temora as compared with just over one month in Queanbeyan. These facts support the finding that Ms Brown was residing in Temora during this period. Ms Brown's relocation is also supported by the formal notification of change of address, dated 31 July 2009, which stated that her address was Temora. There is also corroborating evidence of the move from the statements by Ms Dufty, Ms Ginich, Ms Caddy and Ms Brown.
57. As it is a precondition to eligibility for reimbursement for a journey that it be ‘reasonably necessary’, if the person has relocated for a while and it is the relocation that necessitates the journey, there is an implication that the relocation must also be reasonable. The Tribunal finds that it was reasonable for Ms Brown to move to Temora.
58. Temora was her home town which she had left for the first time only six months prior to the injury. Ms Brown was a 19 year old who had been injured and was, during the period June to November 2009, unable to work. It was understandable that she went home to be with her family. Not only could they provide emotional support, but it is assumed she was provided with free board and lodging at a time when she needed financial support.
59. Ms Brown had taken a 12 month lease on her flat in Queanbeyan and was obliged to continue to pay the rent and other outgoings. She also had other expenses and no income. Her compensation claim was initially not accepted; her accumulated leave only applied in the first four weeks after the accident. Although she did obtain income support from Centrelink from 14 August to 7 October 2009 the amounts were limited and she needed to borrow significant sums from her family. In the context of her financial difficulties, it is significant that Ms Brown moved back to Queanbeyan in November 2009 when her compensation payments commenced.
60. In addition, it was accepted by the majority of the witnesses from The Canberra Hospital, despite the fact that they were concerned about the impact on her back of the travel between Temora and the Canberra region, and that it was preferable for her Canberra-based rehabilitation providers to meet with her GP on occasion, that the move back to Temora was a reasonable step for her to take.
61. The Tribunal finds, on the evidence, that Ms Brown was living at Temora from 26 June 2009 to November 2009 and that it was reasonable for her to relocate there during this period. That means it is only those return journeys from Temora to Canberra or Temora to Wagga Wagga which are eligible for reimbursement, provided the journeys were necessary for the purpose of obtaining medical treatment.
Application No 2010/0086
62. Section 16(1) provides that Comcare is liable to pay compensation for treatment which is ‘reasonable for the employee to obtain in the circumstances’. Ms Brown had suffered an injury to her spine described as an ‘unspecified back disorder’. The treatment must be reasonable for the relevant condition. In the first claim, of the 12 journeys Mr Brown undertook, eight were for medical appointments, two were for CT scans, and two were for appointments with Dr Low.
63. There is no dispute that the medical appointments were for her back condition. As such they are ‘medical treatment’ within section 4(1) of the Act for that condition. The Tribunal also finds that since the CT scans on her back were ordered by her treating doctor, these were ‘an examination … carried out, on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner’.[8] The CT scans were a diagnostic step to identify and enable appropriate treatment to be provided for a back condition. As such they fall within ‘medical treatment’ as defined in section 4(1).
[8] Act s 4(1)(e).
64. The visits to Dr Low, the specialist occupational physician, were undertaken for the purposes of an assessment of suitability for rehabilitation. Such assessments are normally undertaken under section 36 of the Act at the request of the rehabilitation authority. Counsel for Comcare, therefore, contended that those journeys to see Dr Low were not ‘medical treatment’ under section 16 and that Comcare had not, therefore, made a decision in relation to these journeys.
65. The Tribunal rejects that argument. The Tribunal agrees with counsel that a claim for reimbursement of expenses for a journey for an assessment for rehabilitation purposes usually arises under section 36 of the Act, not section 16. Nonetheless, the criteria for reimbursement of journeys made under section 36 are in identical terms to those in section 16.
66. In addition, the Comcare delegates considered the journeys to visit Dr Low in both the reviewable decisions. Although there was no separate reference to section 36 in Comcare's decisions to reject these journeys, it would be unduly technical to exclude these journeys from the Tribunal’s consideration given that they have in fact been considered by Comcare, although arguably under the wrong provision. It has been accepted that the Tribunal may consider a claim on a different legal basis to that chosen by the primary decision-maker.[9] That is, the fact that Comcare appears to have considered the travel claims only under section 16 does not preclude the Tribunal from considering these claims under section 36.
[9] Fletcher v Commissioner of Taxation (1988) 19 FCR 442; Australian Securities and Investment Commission v Donald (2003) 203 ALR 566.
67. Section 16(6)(b) of the Act provides that compensation for travel to a medical consultation is payable if the journey is ‘necessary’ to obtain the compensable medical treatment.[10] The meaning of ‘necessary’, is given in the Macquarie Concise Dictionary as: ’1. that cannot be dispensed with: a necessary law’ ... 6. something necessary, indispensable, or requisite’.[11] That meaning implies that in order to qualify for reimbursement, the journey must be indispensable in order to treat the accepted condition.[12]
[10] Subject to the condition applied by section 16(7).
[11] Macquarie Concise Dictionary (5th edn, 2009) 837.
[12] Re Pedder and Military Rehabilitation and Compensation Commission [2008] AATA 290 at [50].
68. There was evidence that following the accident, Ms Brown was in pain and needed treatment. The medical appointments were indispensable in order to diagnose and treat her back condition and to recommend medication to alleviate the pain. Equally, the CT scans were essential tools to assist with an accurate diagnosis, and the visit to the rehabilitation specialist to obtain a report about rehabilitation was part of the early intervention package which Ms Brown’s employer implemented in order to assist her to return to the workforce as soon as possible. All the journeys were, accordingly, therapeutically ‘necessary’.
69. Nonetheless, the Tribunal considers Ms Brown is not eligible to be reimbursed for all 12 journeys. It is only those return journeys from Temora during June to November 2009 which fall within section 16 or, in the case of the journey to see Dr Low, section 36. Secondly, since section 16(8)(a) requires the decision-maker to consider 'the place or places where appropriate medical treatment was available to the employee', the Tribunal must identify whether the medical treatment required by Ms Brown could have been obtained in Temora.
70. The Tribunal finds that for application No 2010/0086, it is only the two trips to Wagga Wagga for CT scans, and the two journeys from Temora to Canberra for Ms Brown to be assessed by Dr Low for which reimbursement can be sought. The remaining journeys were for medical appointments in Temora and these are not eligible for reimbursement. Ms Brown was resident in Temora during this period, and the Tribunal finds that the journeys between Queanbeyan to Temora to see doctors in Temora were not ‘necessary’ journeys.
71. The second test of necessity is whether the eligible medical treatment could be obtained in Temora or at locations closer to Temora than Wagga Wagga or Canberra. No evidence was provided that the CT scan could have been undertaken in Temora. Nonetheless, given that CT equipment is relatively sophisticated, the Tribunal is prepared to find that it is unlikely to be available in a small country town. That inference is supported by the fact that Ms Brown's referral to Wagga Wagga was made by her doctor in Temora and it is unlikely that he would have required her to travel that distance if the test could have been undertaken locally. The Tribunal finds that to travel to Wagga Wagga from Temora to obtain a CT scan was a ‘necessary’ journey as the CT could not be undertaken in Temora, and Wagga Wagga is closer than the next sizeable and medically well equipped city, Canberra.
72. Ms Brown also gave evidence that there was no specialist occupational rehabilitation expert in Temora and that evidence was not challenged. In that event, the Tribunal is prepared to find that the travel to Canberra to be assessed by Dr Low was also ‘necessary’. Accordingly, the expenditure on the round trip for all four journeys, two to Wagga Wagga and two to Canberra, was reasonably incurred and should be reimbursed under section 16 and section 36, respectively.
Application No 2010/4978
73. The journeys covered by this application extend beyond the period in the previous application and continue to 23 August 2010. The Tribunal has, therefore, needed to consider the circumstances when Ms Brown was both resident in Temora, that is, until approximately 8 November 2009, and thereafter, while she was resident in Queanbeyan and then Canberra. After 8 November 2009, the Tribunal finds that Ms Brown returned to Temora only at weekends or for short periods.
74. Between 25 June 2009 and 8 November 2009, Ms Brown listed six journeys which had not been the subject of the other claim. Two of the journeys were for physiotherapy sessions (5 July 2009, 15 July 2009); one was to attend what Ms Brown described as a ‘compulsory Nurses Meeting’ for her return to work and treatment options (on 4 September 2009 – travel on 2 September 2009); one was to complete forms (6 October 2009); one was for an appointment with Dr Low (20 October 2009); and the final journey was for an Ergogym assessment (8 November 2009). On each occasion, the starting point for the journey was Temora.
75. The appointment with Dr Low is covered by section 36 as the previous discussion indicates. The treatments provided by Dr Low, as previously discussed, were therapeutically necessary. As was established in relation to the two previous journeys to see Dr Low, Ms Brown’s visit to Dr Low was also ‘necessary’.
76. The journeys for the compulsory nurses meeting and to complete forms were not considered in the reviewable decision and the Tribunal does not have the jurisdiction to consider them. However the Tribunal notes that they do not fall within the definition of ‘medical treatment’, since they are neither medical, surgical, nor therapeutic treatment, nor are they ‘an examination, test or analysis’ authorised by a doctor, nor are they ‘nursing care’ (section 4(1)). They do not fall within the ‘other form of treatment that is prescribed’ since the only relevant form of treatment prescribed in the regulation is treatment by a psychologist (section 4(1)(i); Safety, Rehabilitation and Compensation Regulations 2002 (Cth) reg 17(1)).
77. The journey on 8 November 2009 was for an assessment by Ergogym. This assessment was for the purpose of determining the subsequent treatment Ms Brown received by the physiotherapist employed by the organisation, and was undertaken on the authorisation of a medical practitioner. It would therefore be considered to be ‘medical treatment’. Section 4(1)(d) of the Act specifically includes ‘therapeutic treatment by, or under the supervision of, a physiotherapist’.
78. Two other journeys were not considered in the reviewable decision, namely, the journeys for the physiotherapy sessions on 5 July 2009 and 15 July 2009, The Tribunal, accordingly, has no jurisdiction to consider them. The Tribunal notes that, as discussed, they would fall within ‘medical treatment’.
79. The Tribunal did consider at the hearing whether treatment by a physiotherapist was available in Temora. In evidence Ms Brown referred to a physiotherapist who works in Temora who had treated her mother. She was questioned as to the reason she needed to travel to Queanbeyan to see Mr Priest if she could have seen a physiotherapist in Temora. Ms Brown said she received no more than advice by telephone from her mother’s physiotherapist. Nor could the physiotherapist see her as a patient since her books were full and Ms Brown thought she only worked two days a week. This evidence was not challenged. No evidence was provided of any other physiotherapist operating in Temora.
80. In any event, the Tribunal notes that Mr Priest, the physiotherapist whom Ms Brown saw in Queanbeyan, was an employee of The Canberra Hospital, and she was being treated by him free of charge and at the suggestion of the Hospital. In these circumstances, the Tribunal would have found that it was ‘necessary’ for Ms Brown to travel from Temora to Queanbeyan for both physiotherapy sessions and that the expenditure was reasonably incurred. Should an application for review be made in relation to these journeys, Comcare may wish to take this into account.
81. That means that the expenditure on the journey to see Dr Low and the journey for the assessment by Ergogym are compensable under section 36 and section 16, respectively.
82. The final issue is whether the journeys after 8 November 2009 were covered by section 16. Ms Brown claimed reimbursement for 23 journeys in that period. From 8 November 2009 Ms Brown had resumed living in the Canberra region, first in her flat in Queanbeyan, subsequently in the Canberra suburb of Oxley, and at her current residence in the Canberra suburb of Kambah. In accordance with the findings earlier it would normally only be journeys which exceeded 50 km from her residence to seek medical treatment that need to be considered.
83. Among those journeys, Ms Brown made one claim for a journey from Oxley to the centre of Canberra for a ‘travel Conference’. The return journey to Oxley does not exceed 50 km, nor is a travel conference ‘medical treatment’. That expenditure ($33.60) is not covered by section 16. A second journey claimed (between Temora and Canberra) was for a ‘parking permit’, presumably a parking permit for someone with a disability. That journey equally is not ‘medical treatment’ and is not covered by section 16.
84. Of the balance of 21 journeys, the only claims for journeys outside Canberra were for her 10 visits to her doctor in Temora. As the remainder of the appointments with Ergogym, a psychologist, a neurosurgeon, and her rehabilitation provider all occurred in Canberra, there was no need for Ms Brown to make a round trip in excess of 50 km to attend. Even if Ms Brown had been in Temora for a weekend or an extended weekend and returned to Canberra to attend an appointment with one of these specialist medical or therapeutic experts, her return journey to Canberra would not qualify for reimbursement since the visits to Temora to see her family were a matter of personal choice, not necessity. Hence, journeys from Temora to Canberra, even if they coincided with one or more of Ms Brown’s appointments for medical purposes, could not be considered to be expenditure that was ‘reasonably incurred’.
85. The sole remaining issue, therefore, is whether the expenditure on the 10 return trips from Queanbeyan/Canberra to Temora to see Dr Pathak or Dr Kurtzer involved expenditure which was reasonably incurred. Ms Brown had given evidence that initially she had chosen to continue to attend these medical practitioners in order to obtain continuity of care and because she believed the doctors were genuinely concerned about her level of care and ongoing treatment. That argument has not been accepted as sufficient to justify continuing to see an existing general practitioner when a person has to travel more than 50 km to see them and when, as the evidence indicates here, general practices are available in closer proximity to the person’s residence.[13] It has generally only been for the receipt of specialist medical care or in circumstances relating to a particular patient's needs that choice of general practitioner for personal, not therapeutic reasons, has been accepted as coming under section 16. Neither of these exceptions have been demonstrated by Ms Brown.
[13] Re Stevens and Comcare (AAT 10498, 26 October 1995); Re Stevens and Comcare (AAT 11961 19 June 1997); Re Pedder and Military Rehabilitation and Compensation Commission [2008] AATA 290; Re Stack and Military Rehabilitation and Compensation Commission [2010] AATA 334.
86. The Tribunal finds that there was insufficient reason for Ms Brown to continue to travel to Temora to see her general practitioner. Hence, these journeys were not necessary. Ms Brown could have made more assiduous efforts to find a medical practice in Canberra which would take her as a patient after her return to live in the Canberra region. Although no evidence was provided specifically about the accessibility of the various medical practices referred to as at November 2009, the evidence is that Ms Brown could at least have attended the Phillip Health Centre, a 'walk-in' practice, on an interim basis, while she sought to find another Canberra region practice where she could have developed the relationship and enjoyed the continuity of care with a doctor or doctors of her choice which she seeks.
87. In those circumstances, the Tribunal finds that the expenditure on the journeys from Canberra to Temora for Ms Brown to attend her general practitioners there was not reasonably incurred.
88. That means Ms Brown has been partially successful and the reviewable decision is varied accordingly. The matter should be remitted to Comcare to calculate the amounts to which Ms Brown is entitled for expenditure incurred on the journeys claimed which are to be reimbursed, and to set this amount off against the debt owed. Liberty to apply for costs is granted.
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Professor R Creyke, Senior Member.
Signed: ..................[sgd].............................
C. Baillie, AssociateDate of Hearing 1 March 2011
Date of Decision 23 March 2011Solicitor for the Applicant Mark Howard
Stacks Southern Lawyers
Counsel for the Applicant John Wilson
Solicitor for the Respondent Seeta Frahm-Jensen
Sparke Helmore
Counsel for the Respondent Peter Woulfe
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