Chalfont and Comcare (Compensation)
[2016] AATA 1082
•23 December 2016
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 injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in s 5A(1) of the Act to mean, so far as this case is concerned:
… an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment.
It is not in contention that Mr Chalfont has a compensable Colon Injury.
SECTION 16 - CONDITIONS
Is Allopurinol a form of “medical treatment” within s 4(1) of the Act
Section 16 of the Act deals with compensation for out of pocket costs of medical treatment. Section 16(1) provides:
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.
Meaning of Medical Treatment
Section 4(1) defines "medical treatment " to mean, relevantly:
(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
…
(f)the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
…
(h)…curative apparatus…
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].
Dr Chan gave evidence before the Tribunal. Dr Chan said he had been provided with a copy of the article and he agreed that chronic diarrhoea may lead to an increased chance of developing kidney stones. However, in Dr Chan’s view this was not relevant to the issue here. Dr Chan said this article was concerned with kidney stones and that the presence of uric acid resulting from gout is a separate issue to that of kidney stones.
Mr Chalfont acknowledged that he does not have kidney stones. Dr Chan said Allopurinol is not used to treated Mr Chalfont’s current compensable conditions. Dr Chan referred to the Product Information sheet for Allopurinol which makes no mention of it being prescribed for or used for treatment of Mr Chalfont’s compensable Colon Injury.[21] I asked Dr Chan whether Allopurinol is prescribed as a preventative medication for chronic diarrhoea sufferers to ensure that gout does not develop. He said “No”.
[21] Exhibit 15.
There is no medical evidence that Allopurinol is prescribed for anything other than Mr Chalfont’s gout. Comcare has not accepted gout as a compensable injury. Further, there is no medical evidence the compensable injury caused the onset of Mr Chalfont’s gout.
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.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg ..........................[Sgd]..............................................
Associate
Dated 23 December 2016
Date of hearing 15 November 2016 Applicant By phone Respondent In person Counsel for the Respondent Mr Ben Dube
Key Legal Topics
Areas of Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Causation
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Remedies
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Statutory Construction
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