ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY HACK DP
BETWEEN:
COMCARE Applicant
AND:
ASHLEY CRAIG HOLT Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
22 MARCH 2007
WHERE MADE:
DARWIN(BY VIDEO LINK)
THE COURT ORDERS THAT:
1.The appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
NTD 1 OF 2007
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY HACK DP
BETWEEN:
COMCARE Applicant
AND:
ASHLEY CRAIG HOLT Respondent
JUDGE:
MANSFIELD J
DATE:
22 MARCH 2007
PLACE:
DARWIN (BY VIDEO LINK)
REASONS FOR JUDGMENT
INTRODUCTION
Ashley Holt was previously employed in a Commonwealth agency. He lives in Alice Springs. He suffered a compensable injury in the course of his employment on 17 September 2002. Comcare on behalf of the Commonwealth has paid compensation to him under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) since that time. Mr Holt’s injury was described as “generalised anxiety disorder and adjustment reaction with brief depressive reaction”. Mr Holt has been treated for the condition by a general practitioner, Dr Zerk, for some time.
In August 2005, Dr Zerk requested the approval of Comcare for Mr Holt to attend a Buddhist meditation retreat at the Chenrezig Institute in Queensland (the retreat) as part of his treatment for his injury. That involved a cost of a little over $1000 for food and accommodation, and air fares of almost $600 to enable Mr Holt to travel between his home in Alice Springs and Brisbane, near where the retreat was to take place.
Comcare, by its delegate, decided on 22 August 2005 that Comcare would not pay for the attendance at the retreat or the expenses of the retreat, because the retreat did not constitute “therapeutic treatment” as defined in the SRC Act. That decision was confirmed on internal review. Mr Holt challenged that decision in the Administrative Appeals Tribunal (the AAT).
However, before the AAT it was accepted that the retreat did constitute “therapeutic treatment”. The sole issue before the AAT was whether the retreat was treatment “that is reasonable for the employee to obtain in the circumstances”. The AAT on 8 December…
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.
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Details
AGLC
Comcare v Holt [2007] FCA 405
Case
[2007] FCA 405
Decision Date
CaseChat Overview and Summary
The case of Comcare v Holt was heard before the court, involving a dispute over whether Comcare, the Commonwealth entity responsible for workers' compensation, should reimburse an employee for the costs of attending a meditation retreat as part of his medical treatment. The employee, Mr Holt, a practising Buddhist, argued that attending the retreat was reasonable and necessary given his extensive experience with meditation and the therapeutic benefits it provided, especially after previous sessions funded by Comcare. The Administrative Appeals Tribunal (AAT) had found in Mr Holt's favour, and Comcare appealed this decision.
The central legal issue in the appeal was whether the AAT erred in finding that the retreat was reasonable for Mr Holt to undertake, without adequately considering the costs and benefits of the treatment. Comcare argued that the AAT failed to properly weigh the prospective benefits of the retreat against its prospective costs, as suggested by the principles in Comcare v Rope. Comcare also contended that the AAT took into account irrelevant considerations, such as previous funding of similar treatments by Comcare, and did not address the argument that any benefits Mr Holt obtained from the retreat were outweighed by the cost.
The court considered the arguments put forth by Comcare, focusing on whether the AAT had properly applied the principles for determining the reasonableness of the proposed treatment. It was noted that the AAT had considered the evidence of Mr Holt's extensive meditation practice and the therapeutic benefits of the retreat, as well as the opinion of his treating practitioner. The court found that the AAT did not err in concluding that the retreat was reasonable for Mr Holt to undertake, as there was an adequate evidential foundation for this decision. The AAT's consideration of previous funding and the obligation to demonstrate a cheaper alternative were deemed irrelevant to the reasonableness of the retreat itself.
The appeal was dismissed by the court, affirming the AAT's decision that the retreat was reasonable for Mr Holt to attend as part of his medical treatment, and thus Comcare was liable to reimburse the costs of the retreat and associated travel.
Orders
Orders of the court
1. The appeal be dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
MANSFIELD J
Section 16(6) provides that Comcare is liable to pay compensation to an employee where compensation is payable in respect of the cost of medical treatment and the employee reasonably incurs expenditure in … making a necessary journey for the purpose of obtaining that medical treatment [and/or] remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose.If, as the AAT found, the retreat was reasonable to be undertaken in the circumstances, Comcare does not separately contend that the travel costs were themselves unreasonable. Correctly, in my view, both Comcare and Mr Holt regarded the overall cost of the retreat and the travel to it as matters relevant to the reasonableness of the retreat as treatment in the circumstances. The amount of compensation payable is fixed by s 16(6)(c) and (d). Section 16(7) limits the circumstances in which Comcare is liable to pay compensation by reference to the length of the journey and the consequences of the employee’s injury. Nothing turns upon those latter mentioned provisions in this matter.THE AAT DECISION Mr Holt is a practising Buddhist, and has been engaged in meditation for some 30 years and has attended about 40 meditation training sessions over the years. He has previously had similar treatment to the retreat, that is therapeutic meditation sessions, paid for by Comcare in November 2002, September 2003, March 2004, November 2004 and April 2005. He meditates on a daily basis and has a room at his home generally available for that purpose. He claimed that attendance at the retreat had in the past provided him with the opportunity to practise intensively in a supportive environment, and that the benefit of such a retreat can last upwards of 11 months. He also claimed that his stress levels build up as time elapses from the retreat, and that he loses focus and quality of life over that period. He said that it is the supportive environment of the retreat that makes the difference. The AAT accepted his evidence. The AAT also noted that his treating practitioner, Dr Zerk, regarded the attendance at the retreat as having a therapeutic benefit for him. It referred to comments Dr Zerk had made to that effect in May 2005, and August 2005 including, in respect of the present application, that:Mr Holt is getting benefits from these treatments … I note that in particular after attending Buddhist retreats, Mr Holt comes back refreshed, relaxed, less stressed and ‘bogged down’ with the problems relating to his claim, and ready to find employment. The benefit gained from this is clear, but difficult to sustain unless he can see a brighter future. The Tribunal then described the argument for Comcare as being that the treatment was not treatment that was reasonable in the circumstances. There were two reasons put forward for that:(1)that Mr Holt could in effect replicate the retreat in his own home; and(2)that there were other forms of meditation treatment available in Alice Springs.The Tribunal did not accept either of those arguments, as it said, because “there is an inadequate evidential foundation for them or either of them”. It explained that conclusion.
Ratio Decidendi
Legal Principle Established
Established by:
MANSFIELD J
There were three arguments advanced by Comcare on the appeal. They were:(1)The AAT had not applied the principles discussed by Stone J in Comcare v Rope (2004) 135 FCR 443 at 448, at [17], and in particular that it did not consider the prospective benefits of the proposed treatment against its prospective costs, that is that it did not weigh the benefit of the retreat against the cost of obtaining it. It was said that the AAT erred by proceeding on the basis that in the absence of a cheaper alternative, the treatment was reasonable, because it failed to consider whether the cost of the proposed treatment was reasonable in the circumstances. That was said to be a failure to take material facts into account and to examine them in relation to a matter the Tribunal had to determine so as to amount to an error of law.(2)The AAT took into account irrelevant considerations, namely that Comcare had previously funded such medical treatment, and secondly that Comcare had an obligation upon it to demonstrate an alternative medical treatment that has equivalent therapeutic benefit but at a lower cost.(3)The AAT failed to comply with the obligation imposed by s 43(2) of the AAT Act and failed to deal with a submission seriously advanced by Comcare, relevant to the issue before the Tribunal and worthy of consideration, namely that any benefit Mr Holt obtained from the medical treatment was outweighed by the cost of treatment. As to the third argument, Comcare’s statement of facts and contentions before the AAT included the proposition that any benefit to Mr Holt from attending the retreat was outweighed by the cost of obtaining the treatment (as the AAT noted about $1650). It was contended that Comcare’s contention in that regard was not addressed in the AAT’s reasons at all.CONSIDERATION Counsel for the parties were agreed on the principles to be applied in determining whether the proposed treatment was reasonable for Mr Holt to obtain in the circumstances. In Rope 135 FCR at 448, at [17], Stone J said:I accept, however, that the reference in s 16(1) to treatment being ‘reasonable to obtain in the circumstances’ is a clear indication that, in this case, the Tribunal was required to engage in a costs/benefit analysis in relation to PNI treatment. The Tribunal needed, among other things, to weigh the benefit of PNI treatment against the cost of obtaining it (given that the treatment was available only in Townsville), taking into account any other treatment available to Mrs Rope. In that case, the employee had suffered a compensatable injury and had received psychoneuroimmunology (PNI) treatment from a psychotherapist in Canberra. The psychotherapist had subsequently moved her practice to Townsville and the issue was whether the employee was entitled to recover from Comcare the costs of her travel to Townsville to continue her PNI treatment. There was no equivalent treatment available in Canberra. The AAT determined that it was reasonable for that employee to obtain PNI treatment and be reimbursed for the cost of travelling to Townsville to obtain it. Justice Stone found no error of law on the part of the AAT in making that decision.