Chalfont and Comcare (Compensation) - [2016] AATA 1082

Chalfont and Comcare (Compensation) [2016] AATA 1082 (23 December 2016)

Division

GENERAL DIVISION

File Number

2016/1272

Re

Jeffrey Chalfont

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Member D K Grigg

Date 23 December 2016

Place Brisbane
The Tribunal affirms the decision under review.

.............................[Sgd]...........................................
Member D K Grigg
CATCHWORDS
COMPENSATION – Commonwealth employees - accepted colon injury – medical treatment not obtained in relation to accepted injury – decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Holt [2007] FCA 405
REASONS FOR DECISION
Member D K Grigg
23 December 2016
INTRODUCTION

Mr Chalfont has an accepted compensable injury of diverticular of colon (“Colon Injury”).[1] Liability for the Colon Injury was accepted by Comcare on 18 July 2002.[2]
[1] Exhibit 3, T Documents, T6, page 17.
[2] Exhibit 3, T Documents, T6, page 17.
Mr Chalfont has claimed that a medication known as Allopurinol is “medical treatment” for the purposes of the definition of “medical treatment” in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) and that he is therefore entitled to be compensated for its purchase under s16(1) of the Act.
Comcare previously accepted liability for Allopurinol in 2012[3] and in 2013.[4] At the hearing Counsel for Comcare said this was done in error.
[3] Exhibit 3, T Documents, T30.1, page 54.
[4] Exhibit 3, T Documents, T30.2, page 56.
In June 2015 Mr Chalfont again requested compensation for various medications including Allopurinol.[5]   Compensation was denied by Comcare on 30 June 2015 because it had not been approved as medical treatment in relation to his Colon Injury.[6] On 30 October 2015 Comcare denied liability for Allopurinol under s 16 of the Act.[7]
[5]           Exhibit 3, T Documents, T1.4 and T1.5, pages 9-10.
[6]           Exhibit 3, T Documents, T27.1 and T28, pages 49-50.
[7]           Exhibit 3, T Documents, T32, pages 62-63.
Mr Chalfont sought reconsideration.[8] On 11 February 2016 Comcare affirmed the October determination because Allopurinol was being used to treat Mr Chalfont’s gout and no liability for gout had been accepted by Comcare under s14 of the Act.[9]
[8] Exhibit 3, T Documents, T33, pages 64-65.
[9] Exhibit 3, T Documents, T35, pages 73-76.
Mr Chalfont has sought a review of that decision by this Tribunal.[10]
[10] Exhibit 3, T Documents, T1, page 1.
ISSUES FOR DETERMINATION
The issue for determination are whether Mr Chalfont is entitled to compensation for Allopurinol under s 16 of the Act.
A consideration of whether Mr Chalfont is entitled to compensation under s 16 of the Act involves determining whether:
(a)Allopurinol is a form of “medical treatment” within s 4(1) of the Act, and if yes;
(b)the medical treatment was obtained in relation to the Colon Injury; and
(c)the medical treatment was reasonable in the circumstances.
LEGISLATIVE REQUIREMENTS
The right to compensation for an employee under the Act is conferred by s 14(1) of the Act which provides that Comcare is:
… liable to pay compensation in accordance with this Act in respect of an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chalfont and Comcare (Compensation)

Details

AGLC: Chalfont and Comcare (Compensation) [2016] AATA 1082
Case: [2016] AATA 1082
Decision Date: 23 December 2016

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Chalfont against a decision by Comcare to deny compensation for the cost of Allopurinol medication. Mr. Chalfont had an accepted colon injury, but he was prescribed Allopurinol for gout. He contended that his gout was a consequence of the chronic diarrhoea resulting from his colon injury, and therefore the medication should be covered under section 16 of the relevant Act. Comcare argued that the Allopurinol was not obtained in relation to the accepted injury.

The primary legal issue before the court was whether the Allopurinol treatment obtained by Mr. Chalfont constituted "medical treatment obtained in relation to the compensable injury" for the purposes of section 16 of the Act. This required the court to determine if there was a sufficient causal link between the accepted colon injury and the gout for which Allopurinol was prescribed. The court also considered whether Comcare's previous acceptance of liability for this medication in earlier years, which it later stated was an error, bound it to continue funding the treatment.

The court found that while Allopurinol is medical treatment, it must be obtained in relation to the compensable injury to be eligible for compensation. The medical evidence indicated that Allopurinol was prescribed for gout and not for the colon injury or the associated chronic diarrhoea. An occupational physician's review concluded that Allopurinol does not treat the compensable bowel condition or chronic diarrhoea. Although Mr. Chalfont presented an article suggesting a link between chronic diarrhoea and uric acid nephrolithiasis, the court was not persuaded that this established a direct link between his specific colon injury and the need for Allopurinol. The court also noted that previous acceptance of liability by Comcare, if made in error, did not create an ongoing obligation.

Consequently, the court affirmed Comcare's decision, holding that Comcare was not liable for Mr. Chalfont's Allopurinol treatment under section 16 of the Act as the medical treatment was not obtained in relation to the accepted colon injury.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Allopurinol is clearly medical treatment. However, to obtain compensation for the medical treatment under s 16 of the Act, the medical treatment must be obtained in relation to the compensable injury.THE MEDICAL EVIDENCE According to Mr Chalfont he has been prescribed Allopurinol for the treatment of a gout condition since at least 2004.[11] Mr Chalfont does not dispute that the Allopurinol was prescribed for the treatment of gout and that “gout” has not been assessed by Comcare as a compensable injury.[11] Exhibit 3, T Documents, T30, page 52. On 9 September 2015, Comcare requested Mr Chalfont provide supporting evidence that the Allopurinol treatment had been obtained for the compensable Colon Injury.[12][12] Exhibit 3, T Documents, T29, page 51. In response to Comcare’s request for further information Mr Chalfont submitted that Comcare had previously approved compensation for Allopurinol and already had the reports from Dr Lai dated 17 February 2015 and 12 June 2015.[13][13] Exhibit 3, T Documents, T30, pages 52-53. Mr Chalfont contends that the chronic diarrhoea he experiences, resulting from the Colon Injury has resulted in gout. Comcare had previously accepted liability for Allopurinol in 2012[14] and in 2013.[15] At the hearing Counsel for Comcare said Comcare had previously accepted liability for Allopurinol in error. The fact that Comcare has previously funded the Allopurinol treatment does not make it unreasonable for Comcare to decline the treatment now.[16][14] Exhibit 3, T Documents, T30.1, page 54.[15] Exhibit 3, T Documents, T30.2, page 56.[16] Comcare v Holt [2007] FCA 405, at [28]. I note that Dr Lai’s report of 17 February 2015 is not in the T Documents. However, the Medical Certificate for Compensation completed by Dr Lai on 12 June 2015 refers, relevantly, only to diverticulosis and makes no mention of any gout condition. The accompanying medication summary includes Allopurinol. In April 2016 a Clinical Panel review was conducted by Dr James Chan, occupational physician.[17] Dr Chan was asked, among others, the following questions:1. …is it reasonable for Mr Chalfont to obtain Allopurinol in relation to his compensable condition…2. Is Allopurinol commonly used to treat diverticulitis and chronic diarrhoea?[17] Exhibit 15. Dr Chan reported that:[18]Allopurinol DOES NOT treat the compensable bowel condition or the chronic diarrhoea…Allopurinol is NOT used to treat diverticulitis or chronic diarrhoea at ANY TIME.[18] Exhibit 15. Mr Chalfont submitted that low urinary PH (gout) is a condition of chronic diarrhoea and may, without treatment, develop into Uric Acid Nephrolithiasis (kidney stones). He says his gout is as a result of Colon Injury and that therefore he should be entitled to compensation for the treatment of it.[19] In support of his contention Mr Chalfont tendered an article from the Journal Reviews in Urology titled “Uric Acid Nephrolithiasis: Recent Progress and Future Directions”[20] which he says supports his contentions. The authors of the article describe their study findings as “an overview of the pathophysiology of [uric acid stones] and the evaluation and management of those afflicted with it”. The article sets out that “patients with chronic diarrhea…are at risk for developing uric acid nephrolithiasis”.[19] Exhibit 7.[20] Exhibit 10, Rev Urol. 2007;9(1):17-27].

Decision

Reasons for decision

The medical evidence suggests that, not only was Allopurinol not prescribed for the compensable injury, Allopurinol is not an appropriate or recommended treatment for Mr Chalfont’s Colon Injury. I find therefore that Allopurinol medical treatment was not obtained in relation to the Colon Injury as required by s 16 of the Act.CONCLUSION Comcare is not liable for Mr Chalfont’s Allopurinol treatment under s 16 of the Act. The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number	2016/1272
Re	Jeffrey Chalfont
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Member D K Grigg
Date	23 December 2016
Place	Brisbane