Cook and Comcare
[2005] AATA 38
•17 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 38
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: N2004/854
GENERAL ADMINISTRATIVE DIVISION ) Re ELIZABETH COOK Applicant
And
COMCARE
Respondent
DECISION
Tribunal Robin Hunt, Senior Member Date17 January 2005
PlaceSydney
Decision The Tribunal affirms the decision under review [SGD] Robin Hunt
Senior Member
CATCHWORDS
WORKERS COMPENSATION - Medical Expenses -- Naturopathy – Mineral and herbal treatments – Not medical treatments.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16
Administrative Appeals Tribunal Act 1975 (Cth) s 26
Case Law
Bashar v Comcare (2002) 69 ALD 784
Capital Territory Health Commission v Cavanagh, (FCA 78/008; 3 March 1978; Nimmo J)
Comcare v Watson (1997) 46 ALD 481
Re Jorgenson and Commonwealth (1990) 23 ALD 321
Re Watson and Comcare (1996) 40 ALD 655
Thiele v Commonwealth (1990) 95 ALR 172
Re King and Comcare(1998) 53 ALD 791
REASONS FOR DECISION
17 January 2005 Robin Hunt, Senior Member summary
1. Ms Elizabeth Cook, the Applicant, applied to the Administrative Appeals Tribunal (the Tribunal) for review of that part of the Respondent’s Determination of 16 April 2004 not to reimburse her for the cost of specific items of expenditure which she claimed were reasonable medical expenses. The expenses rejected by the Respondent were incurred for an attendance and treatment by a Naturopath, herbal remedies and a preparation called “Ounce of Prevention”. Ms Cook purchased these treatments for relief of her chronic pain disorder and secondary depression.
2. The Tribunal, in a previous decision concerning Ms Cook’s claim, found on 10 January 2003 that the Respondent was liable for Ms Cook’s reasonable medical expenses for an injury which brought about her chronic pain disorder and depression. The Respondent has reimbursed the bulk of Ms Cook’s expenses claimed but did not reimburse the specific expenses claimed in the current case. It argued these expenses were not medical expenses as defined for the purposes of section 16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Ms Cook argued that the expenses were before the Tribunal when it made its decision on 10 January 2003, that this meant the Tribunal included them in its consideration of reasonable medical expenses so that to exclude them infringed section 26 of the Administrative Appeals Tribunal Act 1975 (AAT Act). The Tribunal has decided that the Respondent’s decision not to make these payments should be affirmed as set out below.
the issue
3. The Tribunal has already decided that the Respondent is liable for Ms Cook’s reasonable medical expenses for the injury which caused her widespread and regional chronic pain disorder and secondary depression. The specific items at issue in the present matter are the cost of an attendance and treatment from D De Corso, a Naturopath, and an “Ounce of Prevention” treatment.
4. Ms Cook has argued that the costs of these treatments were part of her claim before the Tribunal at first instance and that section 26 of the AAT Act precluded the alteration of the Tribunal’s decision by excluding some of her claim for medical expenses, namely, the treatments described in her present claim. The Respondent countered that Ms Cook’s construction of section 26 of the AAT Act was misconceived. The Tribunal had not, however, made a finding about what was ‘reasonable’. The Respondent, by paying some expenses and not others, had not altered the Tribunal’s decision but implemented the decision. It had paid Ms Cook’s reasonable medical expenses. Medical expenses were defined under the legislation and the expenses now in dispute were not as defined. The Respondent submitted it had not paid the additional expenses now claimed as they did not fall within the definition of the term in section 16(1) of the Act.
EVIDENCE
5. Ms Cook told the Tribunal at a hearing on 15 December 2004 that the treatments in dispute were not “directed by” her doctor but that she had discussed them with her. She had tried any treatments which she thought might help her manage her pain and improve her health. Thus she had taken vitamins and minerals and natural therapies as it was worth trying any remedy that might assist. She had looked for information on the internet and learned about “Ounce of Prevention”, which was available in America. She said her brother had brought some back for her from America. Ms Cook no longer used this treatment but said she continued to take a similar magnesium/malate supplement and vitamin and mineral supplements in an effort to maintain good health.
6. While she accepted that the treatments in question had not been directed or advised by her doctor, she suggested that there was no need for his supervision or prescription. She felt this made them reasonable medical expenses.
7. Ms Cook said she saw the Naturopath as he had been recommended to her and no one else could help her at the time. More recently, her employer accepted certificates from the Naturopath as a valid reason for sick leave. However, she conceded that the current acceptance by her employer of these expenses was the result of an industrial agreement which was not previously in place. She thought, however, that this acceptance tended to show that her request for reimbursement was reasonable.
Legislation and Case Law
medical treatment
8. Section 4 of the Act deals with interpretation and of specific relevance to this matter is the definition of ‘medical treatment’ and ‘therapeutic treatment’ contained within subsection 4(1) of the Act which states:
“medical treatment means:
(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
(c) dental treatment by, or under the supervision of, a legally qualified dentist; or
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
(e)an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or
(f) the supply, replacement or repair of an artifical limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
(g) treatment and maintenance as a patient at a hospital; or
(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
(i) any other form of treatment that is prescribed for the purposes of this definition."
…
“therapeutic treatment includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.”
9.Section 16(1) of the Safety Rehabilitation and Compensation Act 1988 reads, in part:
“16 Compensation in respect of medical expenses etc.
(1)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.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
…”
10. The breadth of meaning of “medical expenses has been considered many times by the Tribunal and the courts. For example, in Re Jorgenson and Commonwealth (1990) 23 ALD 321, the Tribunal held that involvement in an invitro fertilisation program was medical treatment, rejecting a submission that “medical treatment” must have a curative or therapeutic purpose. In Capital Territory Health Commission v Cavanagh (FCA 78/008; 3 March 1978; Nimmo J), the Federal Court held that travel to a warmer climate on the advice of a medical practitioner could not constitute medical treatment in respect of the similarly worded definitions of “medical treatment” and “therapeutic treatment” in the 1971 Act.
11. In Re Watson and Comcare, the Tribunal, applying the judgement of Hill J in Thiele v Commonwealth (1990) 95 ALR 172, held that paragraph (b) requires therapeutic treatment to be “obtained at the direction of” a medical practitioner, rather than “under the supervision of”, the phrase used in paragraphs (a), (c) and (d). On appeal to the Federal Court in Comcare v Watson, Finn J held that the Tribunal's approach to “obtained at the direction of a medical practitioner” was erroneous. Finn J said:
The formula, "at the direction of", in this setting contains an imperative element - by which I mean a doctor prescribes a specified course to be taken. …
…
For my own part I would be prepared to adopt the "advised, prescribed or ordered" terminology of Hill J as representing the proper meaning to be given to the "at the direction formula …”.
12. In Re King and Comcare, vitamins and mineral supplements expenses were held not to be “reasonable” medical treatment despite the vitamins and mineral supplements being advised by the applicant’s general medical.
analysis
13. The Tribunal has analysed the nature of the remedies for which Ms Cook is making her claim. After considering the information before the Tribunal and comparing the treatments in question with those treatments considered in the cases above, I have decided that Ms Cook’s treatments do not fall within the definition of ‘medical treatment’ or ‘therapeutic treatment’ and therefore are not part of her reasonable medical expenses. I understand Ms Cook’s wish to try anything that might assist when she was unwell. These treatments were purchased by Ms Cook on her own initiative and not under the direction of or supervision by her doctor. While I accept that Ms Cook discussed these remedies with her doctor this does not amount to the same degree of involvement of her doctor as where a doctor ‘advises, prescribes, or orders’ the treatment. I would be out of step with past Tribunal practice if I were to find that the additional remedies claimed in this case were part of Ms Cook’s reasonable medical expenses.
whether decision of the tribunal has been varied
14.Section 26 of the Administrative Appeals Tribunal Act 1975 provides:
“(1) Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:
(a) the enactment that authorised the making of the application expressly permits the decision to be altered; or
(b) the parties to the proceeding, and the Tribunal, consent to the making of the alteration.
(2) A reference in subsection (1) to the alteration of a decision is a reference to:
(a) the variation of a decision; or
(b) the setting aside of a decision; or
(c) the setting aside of a decision and the making of a decision in substitution for the decision set aside.”
15. Section 26 of the Act enables the Tribunal to alter a decision of a previous decision maker, where it is so empowered under an enactment. The Tribunal, on 10 January 2003, exercised its jurisdiction and made its decision under section 26. It substituted its own decision for that of the previous decision maker. It decided that the Respondent must pay Ms Cook’s reasonable medical expenses. It did not rule on which of the expenses claimed were reasonable medical expenses. While information about the expenses claimed was before the previously constituted Tribunal was before it, I do not agree with Ms Cook’s submission that it should be implied that the Tribunal considered all the expenses before it and concluded they were reasonable medical expenses. A decision by this Tribunal that certain of Ms Cook’s expenses do not meet the description of reasonable medical expenses according to section 16 above and the case guidance discussed, does not result in infringement of section 26. Further, the present Tribunal has not in any manner varied the decision of the Tribunal made on 10 January 2003.
findings and reasons
16. The Tribunal is not satisfied that the specific items claimed, being naturopathic treatment, herbal remedies and mineral supplements and the like come within the definition of “medical treatment”. Further, if these treatments were taken to be therapeutic, they have not been directed by Ms Cook’s doctor and cannot therefore be brought in as claimable expenses on that account. It follows that I find that the reviewable decision should be affirmed.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member.
Signed: .....................................................................................
Associate: Reuben MansourDate of hearing 15 December 2004
Date of decision 17 January 2005
Representative for the Applicant Self RepresentedCounsel for the Respondent Mr B Kelly
Solicitor for the Respondent Dibbs Barker Gosling Lawyers
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