COMPENSATION – s 16(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether psychoneuroimmunology treatment was reasonable for the employee to obtain in the circumstances – factors to be considered in determining this issue – cost of travel to Townsville to obtain treatment a relevant factor to be considered
Re Jorgensen and Commonwealth of Australia (1991) 23 ALD 321 discussed
COMCARE AUSTRALIA v ELEANOR ROPE A26 OF 2003
STONE J 7 MAY 2004 CANBERRA
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
A26 OF 2003
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MEMBER WEBB
BETWEEN:
COMCARE AUSTRALIA APPLICANT
AND:
ELEANOR ROPE RESPONDENT
JUDGE:
STONE J
DATE OF ORDER:
7 MAY 2004
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
A26 OF 2003
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MEMBER WEBB
BETWEEN:
COMCARE AUSTRALIA APPLICANT
AND:
ELEANOR ROPE RESPONDENT
JUDGE:
STONE J
DATE:
7 MAY 2004
PLACE:
CANBERRA
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal from a decision of the Administrative Appeals Tribunal (‘Tribunal’) given on 21 August 2003. The Tribunal reviewed two decisions made by authorised review officers who affirmed decisions made by delegates of the applicant, Comcare. Those decisions concerned two claims made by the respondent, Mrs Eleanor Rope, for compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’). One claim, under s 16(1) of the SRC Act, was for compensation for the cost of psychoneuroimmunology (‘PNI’) treatment and the other, under s 16(6), for travel costs from Canberra to Townsville where the treatment was given.
BACKGROUND
Mrs Rope was injured in a motor accident in March 1987. At the time she was employed by the Department of Education and Community Services. The motor accident caused trauma to the soft tissues of Mrs Rope’s neck. The injury caused her very considerable pain and resulted in a significant degree of physical impairment. In June 1992 a fall on an escalator at work increased the severity of her pain and the extent of her physical impairment. In 1999 Mrs Rope retired on grounds of invalidity.
The applicant, Comcare Australia, accepted that Mrs Rope had suffered an injury within the meaning of s 4(1) of the SRC Act and accepted liability under s 14 for ‘muscular injury to the neck’, ‘traumatic cervical spine’, ‘psychiatric condition’ and ‘reflux oesophagitis’. The history of Mrs Rope’s treatment and subsequent dealings with Comcare is not in dispute. The written submissions of the applicant, omitting references to the relevant pages of the appeal book, contain a convenient summary which I gratefully adopt.
‘Between 1990 and 1999,…
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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AGLC
Comcare v Rope [2004] FCA 540
Case
[2004] FCA 540
Decision Date
CaseChat Overview and Summary
Comcare Australia appealed against a decision of the Administrative Appeals Tribunal which reviewed two decisions concerning compensation claims made by Mrs Eleanor Rope under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Tribunal found that it was reasonable for Mrs Rope to obtain psychoneuroimmunology (‘PNI’) treatment from Ms Anne Just, a clinical nurse psychotherapist, in Townsville, and that Mrs Rope should be reimbursed the cost of travel to Townsville for the treatment. The Tribunal set aside the original decisions which rejected the claims and substituted its own decision in their place. Comcare argued that the Tribunal erred in finding that it was reasonable for Mrs Rope to obtain PNI treatment from Ms Just. The Court examined the evidence and arguments presented to the Tribunal and found that the Tribunal's decision was not flawed. The Court held that the Tribunal was entitled to accept the evidence of the medical experts who supported the value of PNI treatment for Mrs Rope, and to reject the more negative opinion of Dr Saboisky who had only a passing acquaintance with PNI treatment. The Court dismissed Comcare’s appeal and ordered that Comcare pay Mrs Rope’s costs of the application.
The legal issues before the Court were whether the Tribunal erred in finding that PNI treatment provided by Ms Just was medical treatment within the meaning of the SRC Act and that it was reasonable for Mrs Rope to obtain it. The Court found that the Tribunal’s decision was supported by the evidence and did not involve any error of law. The Court held that the Tribunal was entitled to accept the evidence of Mr Hodge, Dr Welberry and Dr Le Leu who testified to the value of PNI treatment for Mrs Rope, and to reject the negative opinion of Dr Saboisky who had only a passing acquaintance with PNI treatment. The Court also held that the Tribunal was correct to note that Comcare had failed to substantiate its assertion that equivalent treatment to that provided by Ms Just was available in Canberra. The Court dismissed Comcare’s appeal and ordered that Comcare pay Mrs Rope’s costs of the application.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s costs of the application.
Background
Background to the litigation
This is an appeal from a decision of the Administrative Appeals Tribunal (‘Tribunal’) given on 21 August 2003. The Tribunal reviewed two decisions made by authorised review officers who affirmed decisions made by delegates of the applicant, Comcare. Those decisions concerned two claims made by the respondent, Mrs Eleanor Rope, for compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’). One claim, under s 16(1) of the SRC Act, was for compensation for the cost of psychoneuroimmunology (‘PNI’) treatment and the other, under s 16(6), for travel costs from Canberra to Townsville where the treatment was given. BACKGROUND Mrs Rope was injured in a motor accident in March 1987. At the time she was employed by the Department of Education and Community Services. The motor accident caused trauma to the soft tissues of Mrs Rope’s neck. The injury caused her very considerable pain and resulted in a significant degree of physical impairment. In June 1992 a fall on an escalator at work increased the severity of her pain and the extent of her physical impairment. In 1999 Mrs Rope retired on grounds of invalidity. The applicant, Comcare Australia, accepted that Mrs Rope had suffered an injury within the meaning of s 4(1) of the SRC Act and accepted liability under s 14 for ‘muscular injury to the neck’, ‘traumatic cervical spine’, ‘psychiatric condition’ and ‘reflux oesophagitis’. The history of Mrs Rope’s treatment and subsequent dealings with Comcare is not in dispute. The written submissions of the applicant, omitting references to the relevant pages of the appeal book, contain a convenient summary which I gratefully adopt. ‘Between 1990 and 1999, Ms Rope received psychotherapy treatment from Ms Anne Just, a clinical nurse psychotherapist. The treatment was provided in Canberra, where Ms Just conducted her practice and Ms Rope lived. In 1999, Ms Just moved her practice to Townsville and, in the same year, Comcare paid for Ms Rope to travel to Townsville and receive a “one off” treatment from Ms Just.Ms Rope was then referred for treatment to Mr Brian Hodge, a psychologist practising in Canberra. On 5 December 2001, Mr Hodge requested that Comcare cover the cost of Ms Rope travelling to Townsville so that Ms Rope could receive one week’s treatment from Ms Just. Comcare concluded that the cost of travel to Townsville was unreasonable and disallowed the claim. Following a request for reconsideration from Ms Rope, Comcare affirmed the determination to disallow the claim, because the cost of travelling from Canberra to Townsville was not a reasonably incurred expenditure for the purposes of obtaining medical treatment.Ms Rope applied to the Tribunal for review of Comcare’s reviewable decision (the decision made on reconsideration). Three days before the hearing of the review, Comcare reconsidered (of its own motion) the decision that the particular form of treatment to be provided by Ms Just, PNI treatment, was not reasonable medical treatment for the purposes of s 16 of the SRC Act. (Up to that point, no reviewable decision had been made in relation to the treatment, as opposed to travel costs.) Comcare affirmed the determination that PNI treatment was not treatment that it was reasonable for Ms Rope to obtain. According to the material before the Tribunal, PNI treatment was a form of psychological counselling in which Ms Just had developed expertise; it shared some features with other forms of psychological treatment (such as that provided by Mr Hodge), but was distinct from those other forms. There was no practitioner who could provide PNI treatment in Canberra.’EVIDENCE BEFORE THE TRIBUNAL
Evidence
Evidence Before The Court
The applicant, Comcare Australia, accepted that Mrs Rope had suffered an injury within the meaning of s 4(1) of the SRC Act and accepted liability under s 14 for ‘muscular injury to the neck’, ‘traumatic cervical spine’, ‘psychiatric condition’ and ‘reflux oesophagitis’. The history of Mrs Rope’s treatment and subsequent dealings with Comcare is not in dispute. The written submissions of the applicant, omitting references to the relevant pages of the appeal book, contain a convenient summary which I gratefully adopt. ‘Between 1990 and 1999, Ms Rope received psychotherapy treatment from Ms Anne Just, a clinical nurse psychotherapist. The treatment was provided in Canberra, where Ms Just conducted her practice and Ms Rope lived. In 1999, Ms Just moved her practice to Townsville and, in the same year, Comcare paid for Ms Rope to travel to Townsville and receive a “one off” treatment from Ms Just.Ms Rope was then referred for treatment to Mr Brian Hodge, a psychologist practising in Canberra. On 5 December 2001, Mr Hodge requested that Comcare cover the cost of Ms Rope travelling to Townsville so that Ms Rope could receive one week’s treatment from Ms Just. Comcare concluded that the cost of travel to Townsville was unreasonable and disallowed the claim. Following a request for reconsideration from Ms Rope, Comcare affirmed the determination to disallow the claim, because the cost of travelling from Canberra to Townsville was not a reasonably incurred expenditure for the purposes of obtaining medical treatment.Ms Rope applied to the Tribunal for review of Comcare’s reviewable decision (the decision made on reconsideration). Three days before the hearing of the review, Comcare reconsidered (of its own motion) the decision that the particular form of treatment to be provided by Ms Just, PNI treatment, was not reasonable medical treatment for the purposes of s 16 of the SRC Act. (Up to that point, no reviewable decision had been made in relation to the treatment, as opposed to travel costs.) Comcare affirmed the determination that PNI treatment was not treatment that it was reasonable for Ms Rope to obtain. According to the material before the Tribunal, PNI treatment was a form of psychological counselling in which Ms Just had developed expertise; it shared some features with other forms of psychological treatment (such as that provided by Mr Hodge), but was distinct from those other forms. There was no practitioner who could provide PNI treatment in Canberra.’EVIDENCE BEFORE THE TRIBUNAL The Tribunal received evidence from Mrs Rope, Mr Hodge, Ms Just and four medical experts, Dr Linda Welberry, Mrs Rope’s general practitioner, Dr Leon Le Leu, an occupational physician and two consultant psychiatrists, Dr William Knox and Dr John Saboisky. Mrs Rope said unequivocally that the treatment she received from Ms Just gave her considerable pain relief and all the other witnesses, except Dr Saboisky, testified to the value of Ms Just’s treatment for Mrs Rope.
Decision
Reasons for decision
STONE J
Dr Saboisky who saw Mrs Rope for ‘an extended psychiatric medico-legal assessment’ on 29 May 2003, expressed a very different opinion. While he admitted to having only ‘a passing acquaintance’ with PNI he expressed the opinion that Ms Just’s treatment did not differ in any substantial way from the treatment that could be provided by Mr Hodge. He stated that although Mrs Rope might experience a temporary improvement from ‘having made contact with her long-term therapist’, he did not believe there would be any long-term benefit from further treatment by Ms Just. In his opinion ‘good psychological counselling will provide equally beneficial treatment.’ THE TRIBUNAL’S DECISION The Tribunal stated that the issues for its determination were whether:‘(a)[PNI] counselling provided by Ms Anne Just constitutes medical treatment that it was reasonable for [Mrs Rope] to obtain in the circumstances; and (b)[Mrs Rope] reasonably incurred expenditure travelling to Townsville to obtain PNI counselling.’ Much of the Tribunal’s reasoning is devoted to the question whether PNI treatment is medical treatment within the meaning of the SRC Act. The Tribunal found that the PNI treatment provided by Ms Just fell within the definition of ‘medical treatment’ in s 4 of the SRC Act and there is no appeal from the Tribunal’s finding on this point. The Tribunal rejected the applicant’s argument that PNI treatment was without scientific merit and could not be clearly distinguished from the treatment provided by Mr Hodge. In coming to this conclusion the Tribunal accepted the evidence of Mr Hodge, Dr Welberry and Dr Le Leu and (impliedly) rejected the more negative aspects of Dr Saboisky’s opinion. The Tribunal also noted that the applicant had failed to substantiate its assertion that equivalent treatment to that provided by Ms Just was available in Canberra. The Tribunal set aside the decisions under review and in substitution decided that it was reasonable for Mrs Rope to obtain PNI treatment and to be reimbursed the cost of travelling to obtain occasional PNI treatment in Townsville. It also held that she was entitled to costs ‘as agreed or taxed in accordance with the General Practice Direction’.THIS APPLICATION The applicant appeals from the decision of the Tribunal set out in [12] above. In argument it pressed only its objection to the decision that it is reasonable for Mrs Rope to obtain occasional PNI treatment from Ms Just in Townsville. While no specific objection was made to the Tribunal’s decision that Mrs Rope be reimbursed the cost of travelling to Townsville, the applicant submitted, obviously correctly, that the order as to travel costs must be set aside if its challenge to the reasonability of Mrs Rope obtaining the PNI treatment, is successful. The applicant relies on s 16(1) of the SRC Act which 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.’