Burton v AMT Industries
[2021] VMC 11
•8 July 2021
IN THE MAGISTRATES COURT OF VICTORIA
AT MELBOURNE
M10557207
| ASHLEY BURTON | Plaintiff |
| v | |
| AMT INDUSTRIES PTY LTD | Defendant |
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MAGISTRATE: | B Wright |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29-30 June 2021 |
DATE OF DECISION: | 8 July 2021 |
CASE MAY BE CITED AS: | Burton v AMT Industries |
MEDIUM NEUTRAL CITATION: | [2021] VMC 011 |
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REASONS FOR DECISION
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Catchwords:
Workers Compensation – Medical and like expenses – Osteopathy – “Reasonable costs” - “Guidelines” – Relevance – Workplace Injury Rehabilitation and Compensation Act 2013 s 223(2).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allen | Maurice Blackburn Lawyers |
| For the Defendant | Ms C Kusiak | MinterEllison |
HIS HONOUR:
1. Mr Burton has an accepted worker's compensation claim pursuant to the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for a neck injury arising out of his employment with the defendant (“AMT”) up to 20 May 2015. Since that time, he has been having regular osteopathy paid for by the VWA, save for an amount of about $10 - $14 on each occasion. He seeks an order for reimbursement of those individual gap payments since 2016, which I am told total about $2,700.
2. The case involves a consideration of the definition of “reasonable costs of a service”, osteopathy in this case, as set out in s.223(2) of the Act. Osteopathy involves massage and manipulation of the musculoskeletal system.
3. After his injury while working as a civil construction labourer, Mr Burton had physiotherapy for a short time which he did not believe was helpful. His GP referred him for osteopathy at Yarra Ranges Osteopathy, where he was treated by a Dr Samantha Kelly. He has continued to be treated by her regularly since and followed her when she transferred to Healing Hands Osteopathy where she is an employee. Both practices are a close drive from Mr Burton's residence.
3. He was able to keep working on light duties until the day before he had surgery to the neck on 15 November 2019. That surgery, performed by Mr John McMahon a neurosurgeon, involved a two-level discectomy fusion at C4-C5 and C5-C6.
4. He has not worked since that date and has continued to receive weekly payments until recently, when he received a 130-week notice. He continues to have regular osteopathy sessions with Dr Kelly at Healing Hands Osteopathy.
5. In evidence he said he initially went to her clinic as she was close by and he could go there on Saturday as he was working Monday to Friday at Campbellfield. She helped by “loosening him up”, so that he could continue working on modified duties. From the start there was a gap between what he paid and what he was reimbursed by the VWA, about $14 per visit. There had been a similar gap over the whole period of treatment. After his surgery Mr McMahon suggested he do office work for the foreseeable future. He has not worked since late 2019.
6. In cross-examination he agreed that over the first few months of treatment with Dr Kelly he did not actually go there on Saturdays but may have been on long service leave. This meant he was more flexible as to the dates.
7. A number of Notices served by the VWA were put to him in which it was indicated that the VWA would not necessarily pay the whole cost of osteopathy treatment. He said that he possibly read that in the Notices. He eventually agreed that he had been told, and complained, of a possible gap in reimbursement for Dr Kelly's treatment sessions in two separate phone calls on 17 June 2016. That date was actually a few days prior to his initial treatment session with Dr Kelly.
8. Despite the fact that he was not paid for the full costs on each occasion he continued to see her “because she fixed me”. He did not seek other osteopathy treatment as he was very happy with her treatment. He did not want anyone else who may “wreck his body”. She had been able to get him back to work after a few treatments and continued to keep him at work for some quite considerable time. He believed that every osteopath “charged the same”. His brother-in-law, who was not in receipt of worker's compensation payments, told him that an osteopath at the Chirnside Park charged the same as Mr Burton’s osteopath. The only time he had been treated by another osteopath was when Dr Kelly was away. He was treated by a locum osteopath at the same clinic on two occasions.
9. He said the other osteopath was more aggressive in treatment, but he was still able to continue working. He gets beneficial short-term relief from Dr Kelly’s treatment, but over the long-term this had a continuing benefit in initially keeping him at work, and now by loosening him up. He did not look for another osteopath who may have charged a lesser rate as he “did not want to be hurt”. He was able to drive to both the Yarra Ranges and the Healing Hands osteopath clinics as they were only a few minutes' drive away from both of his residences.
10. The details of four other osteopath clinics in Croydon, Lilydale, and Chirnside Park were put to him. He agreed that they were within a few minutes' drive from his present and previous residences, up to about 12 minutes away. He said that they would not be difficult to get to. It was put to him that they all had weeknight and Saturday opening hours and all had advertised rates similar to Dr Kelly's clinics rates. It was put that the Lilydale clinic had a standard rate that was almost, if not the same, rate as the VWA or Medicare rate.
11. He agreed he had not been referred to Dr Kelly specifically but to “a nearby clinic”, which according to his GP had “good reports”. He agreed he could have gone to any other nearby clinic if he was unhappy with the treatment there.
12. In re-examination he said he did not go to, or look for, any other osteopath clinic as he was comfortable with Dr Kelly’s treatment. In his initial phone call to the VWA he was told that there was a possibility of a reimbursement gap. He was not told by the VWA to look for an osteopath who charged only the VWA rates. That completes my summary of his evidence.
13. A number of medical reports and other material were tendered in this case. His GP, Dr Lim, in a short report dated 8 July 2020, briefly summarised his treatment. The only comment about osteopathy is “I believe Ashley finds his allied health treaters helpful and useful. Of course, there may be an ongoing and intimate need for these, for example osteopathy to aid with his pain”. There was a referral from another GP to the Yarra Vale osteo on 14 June 2016.
14. His treating neurosurgeon, Mr John McMahon, also prepared a report in 2021. He gave a fairly detailed report of Mr Burton's injury and his treatment; diagnosing a left C5 and C6 radiculopathy, secondary foraminal stenosis and disc prolapses leading to an instrumented C4-C5 and C5-C6 anterior cervical discectomy and fusion. Mr McMahon does not mention osteopathy at all in his report. He states that pain management would be beneficial and regular physiotherapy may also be very beneficial.
15. A number of short reports from the osteopath, Dr Kelly, were tendered. In her first report she stated that the osteopathic treatment had been aimed at reducing muscular tension and improving range of motion of the cervical and thoracic spine as well as the rib cage. Her techniques had involved soft-tissue release, mobilisation, muscle energy techniques, spinal manipulation to the ribs and the thoracic spine, gentle indirect techniques and home exercises.
16. Over time she thought his continuing condition had been aggravated by his physical occupation, referring to digging and shovelling. Her treatment had been aimed at maintaining his physical occupation. He told her that physiotherapy treatment had not been helping. Exercise physiology had also helped in his case.
17. After the surgery she stated that he should perform no digging but do limited shovelling for no longer than 15 minutes without a break. She stated “This, along with the advice from the neurosurgeon, his regular osteopathic treatment, home management exercises, will allow him the best chance of recovering from this condition”.
18. She thought that he responded well to these treatments, but as pain levels decreased, they were transitioning to a more active approach and treatment, such as exercise physiology and gym work.
19. No other medical or allied health treatment material was tendered.
20. Records were tendered setting out the gap between the charge for Mr Burton's osteopathic treatment and his reimbursement from the VWA. They started at Yarra Ranges Osteopathy, where he was charged $76 per regular session, and reimbursed $63.53, leaving a gap of $12.47. When he ceased there about November 2018 there was a gap of $12.89 between the charge of $80 and the reimbursed amount of $67.11.
21. At Healing Hands Osteopathy, the figures at the start in December 2018 were a gap of $9.89 between $77 and $67.11, and $15.14 gap between $85 and $69.86 in October 2020. This was the latest tendered record.
22. Both parties tendered present-day material relating to four other clinics near to Mr Burton's residence. Koru Natural Therapies in Chirnside Park charge at present $90 for a return osteopathic consultation. Complete Care Osteopathy in Lilydale charge $82 for a return consultation. Counsel for the VWA tendered a fee schedule for By Design Holistic Health in Lilydale setting out the charge of $85 for a standard osteopathic consultation, and $69.86 for a standard WorkCover consultation. Croydon Osteopathy charge $95 for a standard osteopathic consultation and $69.86 for a standard WorkCover consultation. Of course, $69.86 is the rate Mr Burton was being reimbursed in October 2020 which is the latest invoice/receipt before me.
23. One of the relevant issues in this case is a consideration of the applicability of s.223(2)(a)(iii) in the Act setting out the definition of “reasonable costs” of a medical service, namely osteopathy in this case.
24. The definition of “reasonable costs, in relation to a service …. means an amount - (a) that is determined by the Authority …. as a reasonable cost in relation to that service …. having regard to - …. (iii) any guidelines made by the Authority and published on its website in respect of services or provisions of that kind; … ”.
25. Counsel for AMT tendered three lots of documents said to be “guidelines” in accordance with the Act and published on its website.
26. Counsel for Mr Burton agreed the first document headed “Guidelines for providing osteopathy services to injured workers” was such a guideline. That document sets out the need for registration with the Victorian WorkCover Authority and the Osteopathy Board of Australia. It further states Osteopaths should also integrate the principles of the clinical framework for the delivery of health services to injured workers into their daily practice.
27. More importantly, it states “WorkSafe will pay the reasonable cost of osteopathic services up to the maximum amount, as detailed in the WorkCover osteopathy services fee schedules”. Various VWA osteopathy fee schedules were tendered setting out the maximum amounts for a standard consultation, being $67.11 as at 1 July 2018, $68.49 as at 1 July 2019, and $69.86 as at 1 July 2020. Those figures are reflected in the summary of the invoices that were paid by Mr Burton and set out the amounts he was reimbursed.
28. Counsel for AMT also tendered extracts from the published VWA Claims Manual which she said were “guidelines pursuant to s.223(2)(a)(iii) of the Act”. Counsel for Mr Burton later submitted those extracts were not guidelines in accordance with that provision.
29. Item 4.1 in the Claims Manual refers to the reasonable costs of medical and like services, setting out the maximum amounts in the various fee schedules. There is a sub-extract, 4.1.3, headed “Exceptional circumstances – above rates” which assists WorkSafe agents in their consideration of the payment of fees above the relevant schedules for a service to eliminate any gap.
30. It sets out an agent may reimburse a worker's out of pocket expenses above the schedule fee in circumstances such as where the worker is limited as to providers because of working and living in a remote area or was unaware of the schedule, as well as such considerations as the service “being necessary and appropriate in the worker's individual circumstances”.
31. Further it sets out that a worker will not be reimbursed out of pocket expenses when “the worker is aware of the schedule of fees and where the provider continues to invoice above the schedule directly to the worker”.
32. That completes the evidence in this case.
33. Counsel for Mr Burton submits that I should accept that the present charge of $85 per standard consultation and the previous out of pocket fees charged to him by Dr Kelly are “reasonable costs” having regard to the similar rates, both higher and lower, charged by those other four osteopathic clinics in the nearby area. He submitted the word “guidelines” in s.223(2)(a) should be strictly construed, and that the parts of the Claims Manual guiding agents in the consideration of medical and like services were not “guidelines”, referring to my decision in Taylor v Tehree[2015] VMC 42, as well as Blaess v Mercantile Mutual (1998) 13 VAR 209. However, he conceded the tendered document “Guidelines for providing osteopathic services to injured workers” was such a guideline. However, he said that this was not binding on the VWA and was merely a “guideline” in the real sense of the word.
34. He submitted the current fee charged by Dr Kelly was as “reasonable cost”, as were all the previous fees. There was no evidence why a fee above that set out in the schedule was unreasonable. There was no evidence how the figures set out in the schedule were arrived at. The fees charged by Dr Kelly were “reasonable costs” as well as having regard to the benefit Mr Burton got from her treatment. He had not been helped by physiotherapy and was able to remain at work until the date of his surgery. She provided other services beyond straight osteopathy, such as referring him for X-rays and exercise physiology. She also dealt with work issues and assisted him with return-to-work plans. He submitted she had done more for him than his GP.
35. He submitted that it was unreasonable to expect Mr Burton to have tried to find an osteopath charging the schedule fee as well as providing as good a benefit that he was getting from Dr Kelly. The locum osteopath he had seen on two occasions had been more aggressive in his treatment of Mr Burton. Dr Kelly's practice was open to treat him outside work hours so that he could continue to attend work some distance away from his home. In any event, there was nothing to say that he would have received a similar benefit from an osteopath who would have charged him at the VWA scheduled rate.
36. He submitted that osteopathy was unlike other services such as an MRI, which would be the same no matter where it was carried out. Osteopathy required regular, and at times frequent, attendances with the same person to ensure monitoring and consistency in the treatment of his condition.
37. Counsel for AMT submitted that the extracts of the Claims Manual at items 4.1, and especially 4.1.3, are “guidelines for the purposes of s.223(2)”. The Claims Manual is published on the website and relates to “services and provisions” in relation to medical and like services. The present s.223(2) is different slightly to s.99AAA(2) in the Accident Compensation Act 1985, that I considered in the Taylor decision.
38. She referred to a number of instances where my colleague Magistrate Garnett had referred to various extracts from the Claims Manual as being such “guidelines”, including Gillen v VWA [2011] VMC 56. The cited extracts were “guidelines” and as such regard should be had to them in determining the “reasonable costs” of osteopathy.
39. She submitted that it was clear that Mr Burton's claim did not fall within the circumstances set out at item 4.1.3 for consideration of any exceptional circumstances for the payment of full out-of-pocket fees. He was told that there was likely to be a gap in osteopathy expenses even before the osteopathic treatment started. He became aware of the actual gap shortly after starting such treatment. This had continued to be the case over the last five years. In any event the treatment rendered by Dr Kelly specifically was not necessary or appropriate in his individual circumstances. He was simply having regular return osteopathic treatments.
40. She submitted the “guidelines” conceded by counsel for Mr Burton set out both the usual payment for osteopathic services as being up to the maximum rates listed in the fees schedules from time to time, and the rate of such scheduled fees for such treatments. The issue of opening hours was not a relevant consideration. Mr Burton did attend on Saturdays and weekdays both during normal hours and after hours. The other clinics in the area allowed for treatment on Saturdays and late in the day on at least some weekdays. Her clinic was similarly convenient for him to get to like the other four clinics nearby. At present, the Croydon Osteopathy Clinic charged worker's compensation patients the exact same fee as set out in the VWA osteopath fee schedule. In fact, reimbursement for VWA patients as far back as 1 July 2018 was for the amounts set out in the fees schedules tendered in this case.
41. Mr Burton had not sought out other osteopaths who would only charge the scheduled VWA rate, nor had he sought any other osteopath who may have given him similarly satisfactory treatment to that rendered by Dr Kelly. He agreed he could have got a referral to any other osteopath for treatment if he had so wished. There was no evidence that he had obtained any unique benefit or treatment from Dr Kelly. All osteopaths could have treated him the same way and performed the other tasks such as referring him for X-rays and monitoring any return to work.
42. There was no evidence of any financial difficulty in paying the gap fee over the years. Mr Burton had developed a close relationship over the years with Dr Kelly. He had simply not wanted to be treated by anyone else over the last five years, despite the fact he was paying the gap himself. He was not referred specifically to Dr Kelly by his GP and could have initially seen any other osteopath at Yarra Ranges Osteopathy. The Act allowed him to seek an osteopath of his own choice. However, any VWA reimbursement of the fees for treatment by that osteopath was and is regulated by the VWA fee schedule.
43. That completes my summary of the submissions from both counsel. Of course, Mr Burton carries the burden of proof in this case.
44. At the outset it is important to note that there are two separate aspects in this case. Mr Burton is entitled to choose his own osteopath for treatment (see, s.224(4) of the Act). However, he is not entitled as of right to a full reimbursement of his out-of-pocket payments for services by that osteopath if charged in excess of the amounts set out in the relevant fee schedules.
45. Counsel for Mr Burton accepts the published “Guidelines for providing osteopathic services to injured workers” as a guideline as to which regard should be had in determining the reasonable costs of osteopathic treatment. He submitted that the maximum amount in the WorkSafe osteopath services fee schedule referred to in those guidelines are not binding in all cases.
46. This is not a case which involves a particularly unique service, such as atypical back surgery by a renowned specialist surgeon. In such a case there might be complications in the proposed surgery requiring a certain specialist surgeon who may charge above the VWA schedule rates. Such a case may warrant a consideration of fees beyond those specified as a maximum fee in a relevant WorkSafe fee schedule.
47. What we are dealing with in this case is a series of standard osteopath treatments or treatment on a regular basis about two to three times per month over about five years. Mr Burton does not dispute that any nearby osteopath could provide a standard osteopathic treatment on a regular basis, both during and outside normal business hours. Rather he submits that he is very happy with the treatment he has been given by Dr Kelly over the years, from which he has derived considerable benefit, so much so that he was able to continue working for about three and a half years prior to his surgery. Arguably, she has also helped him by way of X-ray referrals and return to work coordination, which another osteopath would have been capable of doing as well.
48. I accept what he says about the benefits of Dr Kelly's treatment. However, I do not say that he is entitled to receive the full amount of out-of-pocket fees irrespective of the WorkSafe fee schedule in this case for that treatment.
49. Even prior to his first osteopath treatment in about June 2016 he knew that there would, or likely to, be a gap in out-of-pocket expenses. Shortly after he began such treatment, he knew there was such an actual gap. Despite this he has not ought other osteopathic treatment, which may be beneficial to him, from nearby clinics that may accept the WorkSafe fee schedule amount in full payment for their services. In fact, he did not challenge the fact he had not been reimbursed the full amount of the fees paid by him until going to the Accident Compensation Conciliation Service after almost four years of having to pay out-of-pocket gap expenses.
50. I do not accept that he could not find suitable osteopathic treatment where there would be no out-of-pocket expenses. Quite simply he has not looked. Similarly, the fact that a service provider agrees to accept a schedule fee for rendering an osteopathic service does not mean that the service is of less quality or benefit. There would be some advantage to osteopaths accepting VWA scheduled amounts, if only to get the frequency of a regular payment for regular services. A non-subsidised private patient may not be able to afford two to three treatments per month over a number of years anyway.
51. I do not say that the VWA osteopathic treatment schedules are set in stone for all cases. Section 223(2) merely says that in determining a reasonable cost for treatment there should be regard to the guidelines in respect of services or provisions of that kind. In my mind that clearly gives a discretion to determine fees outside and above the guidelines in the fee schedules in appropriate cases.
52. I do not accept his counsel's submissions that I should simply compare the normal non-WorkCover fees charged by Helping Hands Osteopathy to the other clinics nearby. I do not see that s.223(2) allows for such a comparison.
53. Over the last five years the VWA has determined that the maximum amount in fee schedules should be only allowed in his case. I agree that those scheduled fees are applicable in the circumstances of this case for the reasons I have expressed. I make such a determination even without considering whether the cited extracts of the Claims Manuals are guidelines for the purposes of s.223(2)(a)(iii). Taking the agreed guidelines into account as well as the other factors in s.223(2), I determine that the reasonable costs in this case are the amounts set out in the osteopath fee schedules “from time to time”.
54. However, in any event I do find that the extracts item 4.1, and especially 4.1.3, are guidelines for the purposes of s223(2)(a)(iii), and do not assist Mr Burton in this case. Although the word “guideline” is not included in the text by way of heading or footnote, they clearly are a guide to agents which workers can utilise “in respect of services or provisions of that kind”. In this case, this relates to the reasonable cost of osteopath's services.
55. Obviously, the Claims Manual extracts work in with the other osteopath guidelines and fee schedules that I have referred to previously. They would assist workers to obtain reimbursement or payment of the cost of services in excess of those amounts set out in the fee schedules in certain instances.
56. Mr Burton falls outside the criteria set out in item 4.1.3 in a number of respects, including not living in a remote area and at all times being aware that there would be such a gap. Nor do I believe that the specific treatment rendered by Dr Kelly is necessary and appropriate in the terms of that item, despite his satisfaction with Dr Kelly’s treatment.
57. The situation in this case is different to that in Taylor. In that case I was concerned whether the provision of a front-loading washing machine was a relevant “personal and household service”, rather considering the reasonable costs of such a service. My comment as to the applicability of guidelines in that case should be seen in that context. Blaess was also a case involving the reasonableness of a specific personal and household service, rather than the reasonable costs of such.
58. In the circumstances these proceedings are dismissed.
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