Cremona and Comcare (Compensation)

[2018] AATA 3598

Cremona and Comcare (Compensation) [2018] AATA 3598 (21 September 2018)

Division:GENERAL DIVISION

File Numbers:         2017/4996 & 2017/6751

Re:Maria Cremona

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:21 September 2018

Place:Brisbane

The decisions under review are affirmed.

.....................[sgd]...................................................

Senior Member Theodore Tavoularis

CATCHWORDS

COMPENSATION – where Applicant suffers from somatization disorder – where Applicant has been in receipt of gardening and household services – where Applicant seeks compensation for an MRI – whether Applicant continues to suffer from somatization disorder – whether the Applicant reasonable requires gardening and household services as a resolute of her accepted condition – whether the MRI scan constitutes medical treatment – whether the MRI scan is treatment obtained in relation to the Applicant’s accepted injury – whether it was reasonable for the Applicant to obtain an MRI in the circumstances – decisions under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 43
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 14, 16, 29

CASES

Alamos and Comcare

[2014] AATA 629

Chowdhary and Comcare

[1998] AATA 448

Comcare v Holt

[2007] FCA 405
Comcare v Rope (2004) 135 FCR 443
Re Jorgensen and Commonwealth (1990) 23 ALD 321

REASONS FOR DECISION

Senior Member Theodore Tavoularis

21 September 2018

INTRODUCTION

1. There are two applications before the Tribunal. The first (2017/4996) seeks review of a decision to determine that compensation is not payable for (1) household services for three hours per week; and (2) gardening services for two hours per week for the period 6 October 2016 to 6 October 2017. These services were being funded by the Respondent pursuant to s 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”).

2. The second application (2017/6751) seeks review of a decision denying liability under s 16 of the SRC Act on the part of the Respondent to compensate the Applicant for an MRI scan of her lumbar spine and her knee.

   DETERMINATION OF THE APPLICATIONS

3. For the Tribunal to ascertain whether the household and gardening services were payable in the period ending 6 October 2017, the Tribunal must examine three issues:

   (a)Whether the Applicant continues to suffer from the accepted somatization disorder;

   (b)If this question is answered in the affirmative, whether the Applicant – “as a result of” – this accepted somatization disorder reasonably requires such household services; and

   (c)If this question is answered in the affirmative, what amount of such services per week is “reasonable in the circumstances”?

4. In relation to compensation for the MRI scan, the three issues for determination by the Tribunal are:

   (a)Whether the MRI scan constitutes medical treatment under the SRC Act;

   (b)If question (a) is answered in the affirmative, whether the MRI scan is treatment obtained “in relation to the injury”; and

   (c)Whether it was reasonable to obtain that treatment in the circumstances.

   HISTORY OF THESE APPLICATIONS

5. The Applicant has a lengthy history with the Tribunal. She was originally injured while working for AusAid. On 12 February 1998 she tripped into a lift and fell onto the floor. Her claim for compensation made on 5 March 1998 recorded the following “precise diagnosis”:

   ·Concussion;

   ·Whiplash;

   ·Postural strain of lumbar ligaments;

   ·Back muscle damage;

   ·Bruising and swelling; and

   ·Abrasions[1]

   [1] Exhibit 4, T-Documents for file 2017/4996, T4, p 18.

6. The Applicant said the work incident on 12 February 1998 affected the following parts of her body:

   ·Head;

   ·Face;

   ·Right arm;

   ·Right leg and ankle;

   ·Lower back;

   ·Hands (both);

   ·Knees (both); and

   ·Right wrist[2]

   [2] Ibid, p 19.

7. The Respondent accepted liability pursuant to s 14 of the SRC Act for “bruising & swelling bridge of nose, bruising back of hands, bruising & abrasions to knees, pain in right ankle and headaches and lumbar ligament strain.” Payments for household services commenced on 3 April 1998 evidenced by the payment of $40 to “All Suburbs Private Home Care” on that date.[3]

   [3] Ibid, T102, p 416.

8. A year later, on 23 April 1999, the psychiatrist, Dr P Grainger-Smith, opined after examining the Applicant that she “…suffers from Chronic Pain Disorder associated with psychological factors.”[4] Dr Grainger Smith went on to say:

   I believe that her prognosis is excellent and that she will recover completely in the next six months and be able to work on a full-time basis as she has done in the past.[5]

   [4] Ibid, T5, p 26.

   [5] Ibid, p 28.

9. Despite this finding, there followed a number of subsequent claims for household services. The evidence before me is that those claims were accepted without question in the period 2008-2014, although it appears that claims were accepted before that, too. A further claim for household services was accepted in 2015. These payments were made on the basis of the Applicant’s somatization disorder. A further claim was accepted in November 2016. However, this determination was overturned in a reviewable decision made after a reconsideration on the Respondent’s own motion dated 5 July 2017.

10. Dr Peter Dodd, an orthopaedic surgeon, doubted the Applicant’s need for physical interventions in a report dated 30 March 2016:

    This lady’s symptoms have been labelled a somatization, which basically means she has pain in the absence of any radiological or persistent clinical findings.

    ...

    Her current symptoms do not follow any recognised musculoskeletal distribution and I think in a Court of Law her case could not be upheld.[6]

    [6] Ibid, T80, pp 227-228.

11. Primary support for the Applicant’s most recent claim for household services derived from the psychologist, Mr Craig Holt, who thought certain of the Applicant’s domestic tasks “trigger increased pain with increases fatigue [sic], anxiety and depression.”[7] In response to a question (in the claim form) about any physical limitations the somatization disorder imposed on the Applicant’s capacity to perform these domestic tasks and her endurance in performing those tasks, he thought:

    Physical pain is exacerbated by any day to day activities. Physiotherapy has been discontinued which previously assisted her. Ms Cremona remains reactive and fragile and requires ongoing assistance to maintain any form of stability (psychological or physical). Her endurance levels are minimal – she suffers exhaustion and sleep disturbance that greatly distresses her.[8]

    [7] Ibid, p 234.

    [8] Ibid.

12. However, it is clear that the Respondent harboured some doubts about the need for this support. The day after accepting the Applicant’s 2016 claim, the Respondent wrote to Mr Holt, and, inter alia, sought answers to the following questions:

    3. If you consider the incident that occurred on 12 February 1998 is still a contributing factor to Ms Maria Cremona’s ongoing condition please provide your reasons.

    …

    5. Ms Maria Cremona has been in receipt of household services since April 1998. Can you please advice [sic]:

    a) How has the injury sustained on 12 February 1998 affected Ms Cremona’s ability to perform household services?

    b) What are the current factors that prevent Ms Cremona for [sic] completing household services and how do these factors relate to her compensable injury?

    c) When do you expect that Ms Cremona will no longer need household services to be able to complete any activities independently?[9]

    [9] Ibid, T87, p 242.

13. In response, Mr Holt said in a letter dated 16 November 2016:

    3. Ms Cremona’s presentation is consistent with her injury on 12.2.1998. She continues to suffer symptoms and requires ongoing medical and psychological support.

    …

    5. Ms Cremona requires household services to assist her with her day to day living tasks. She is unable to perform tasks without increased pain, anxiety and depression. Her condition deteriorates markedly with exertion. She requires ongoing support with her household duties. At times, Ms Cremona’s psychological debilitation prevents her from being able to perform any day to day living tasks. She continues to suffer from moderate to severe level pain.[10]

    [10] Ibid, T88, pp 244-245.

14. I feel compelled to comment on Mr Holt’s opinion that someone can present with symptoms consistent with those reported or identified from a workplace incident that occurred almost two decades earlier. In circumstances where there is no clinical explanation behind Mr Holt’s finding that the Applicant “…is unable to perform tasks without increased pain, anxiety or depression” and how it is that “Her condition deteriorates markedly with exertion”, I am reluctant to accept that finding.

15. This gulf in the evidence is thankfully filled by the supplementary report of Dr Varghese, a psychiatrist, dated 11 April 2017. Certain written questions were put to Dr Varghese and he gave the accompanying answers:

    1.    I note that Ms Cremona’s last household help application dated 6 October 2016 was signed by Craig Holt, her treating Psychologist. Please advise on its appropriateness, given that household help is generally assistance provided to employees with physical injury claims.

    Ms Cremona does not require and cannot require household help as requested as a result of Somatisation/Somatoform Disorder. There is no physical disability such that could give rise to a need for assistance. She can be said to be behaving in such a way as to indicate that she is physically disabled and in need of help. This behaviour would be reinforced if such help was provided. Her abnormal illness behaviour can be understood as something she “does” as against something she “has” or “suffers” from.

    It is in the nature of Somatisation/Somatoform Disorder that the individual seeks some acknowledgment that their problems are physical and that they are disabled or else there is a benefit to be obtained. The behaviour is pointless if there is no gain or benefit to be obtained or no acknowledgement as to the physicality of the problems. Somatization/Somatoform Disorder cannot occur in a desert island. It requires a social and interactional context.

    If Ms Cremona requires household help as a result of other physical disability or advancing age this is unrelated to Somatisation/Somatoform Disorder.

    I have noted the handwritten comments of treating Psychologist, Mr Craig Holt. The views expressed are surprising and curious. It seems that he considers that Ms Cremona’s physical symptoms have a physical basis in which case it is difficult to see why Ms Cremona is seeing a psychologist.

    …

    2.    How does Ms Cremona’s compensable psychological condition of somatization disorder impact on her physical ability to complete home duties? Please provide a detailed response.

    …Ms Cremona’s somatisation does not impact on her physical ability to complete home duties although she is behaving in such a way as to convince others that she does require help for home duties.

    …

    4.    In your report dated 14 October 2015, you stated that Somatoform/Somatisation Disorder was not an illness or injury but an “abnormal illness behaviour” that causes patients to convince others as well as themselves that they are ill. In your professional opinion, do you believe that Ms Cremona requires assistance completing activities of daily living or is the continuous household help assistance contributing to her disorder?

    I do not believe that Ms Cremona requires assistance completing activities of daily living or continuous household help as a result of Somatoform/Somatisation Disorder… Providing continuous household assistance for Somatoform/Somatisation Disorder will only reinforce the disorder.[11]

    [11] Ibid, T93, pp 269-271.

16. The opinions expressed by Dr Varghese in his supplementary report caused the Respondent to revoke its abovementioned determination of 8 November 2016 accepting the claim for household and gardening services. In essence, the Respondent thought – rightly in my view – that the views of Dr Varghese appearing in his supplementary report of 11 April 2017 rendered the determination unsustainable.

17. The Applicant was invited to submit any responsive material and provided two things. First, a report from the physiotherapist, Ms Jess Norton, dated 14 June 2017.[12] Ms Norton noted the Applicant “expressed concern” about an absence of paid assistance with domestic and gardening services but had nothing to say about how or why such assistance was required as a result of somatization disorder. Second, in a further report dated 15 June 2017, Mr Holt notes the Applicant requires ongoing paid assistance with household and gardening services, expressing “…grave concerns that her psychological condition will deteriorate” but says nothing about how the Applicant’s need for such assistance arises as a result of somatization disorder.

    [12] Ibid, T96, p 275.

18. Accordingly, on 5 July 2017, the Respondent proceeded to revoke its decision of              8 November 2016 for the payment of compensation for household services and gardening services at the rates described in that determination.

19. As outlined earlier, the issues for determination comprise:

    (a)whether the Respondent is liable to pay compensation for household and gardening services under s 29 of the SRC Act; and

    (b)whether the Respondent is liable to pay compensation for an MRI scan.

20. The former issue arises by virtue of the Applicant’s request made on 16 August 2017 for review of the Respondent’s determination of 5 July 2017 ceasing paid household and gardening services. The latter arises because the Respondent denied liability to pay for an MRI examination of the Applicant’s lumbar spine and knee requested by her local medical officer on 1 August 2017. In rejecting liability to pay for this MRI examination pursuant to s 16 of the SRC Act, the Respondent pointed to an absence of a reasonable need for that MRI because the unknown pain in the Applicant’s lumbar spine and knee were not part of her accepted compensable condition – that being somatization disorder.

21. The Respondent affirmed this decision on 6 October 2017.[13] The Applicant subsequently sought review of this decision.

    [13] Exhibit 5, T-Documents for file 2017/6751, T40, pp 129-133.

    CONSIDERATION

    1. Is the Respondent liable to pay for household and gardening services pursuant to s 29 of the SRC Act?

22. There is no resistance from the Respondent about the Applicant continuing to suffer from the accepted somatization disorder. I am similarly satisfied that she does indeed suffer from that ailment.

23. The expert evidence of Dr Varghese is, to my mind, decisive. His evidence is to the effect that due to its very nature, somatization disorder precludes any finding of a physical disability such that could give rise to a need for the claimed assistance. The behaviour and demeanour of the Applicant matches Dr Varghese’s evidence of how somatization disorder manifests. The Applicant is behaving in such a way that she has convinced herself and consequently seeks to convince others that she would improve or be assisted by the Respondent’s paid household and gardening services. Dr Varghese’s further evidence addresses the consequences of yielding to the request for provision of such services: it would only serve to reinforce and perpetuate this behaviour of insisting she had something physically wrong with her. The Applicant did not call any evidence to refute this.

24. In addition to receiving and accepting Dr Varghese’s evidence about somatization disorder precluding any finding of a physical disability, it is also important to understand how the propounded symptoms manifest in the Applicant. The disorder is not a condition that patients “catch” or “acquire” and, in turn, can be said to “suffer” from. Somatization disorder is more in the form of a compulsion or propensity in someone to “do” something. As put by Dr Varghese:

    Her abnormal illness behaviour can be understood as something she “does” as against something she “has” or “suffers” from.

    It is in the nature of Somatisation/Somatoform Disorder that the individual seeks some acknowledgement that their problems are physical and that they are disabled or else there is a benefit to be obtained.

25. This, of course, is precisely what is occurring with the Applicant. She propounds an assertion of physical affliction in the absence of any such diagnosis or finding and does so for the primary purpose of securing approval for provision of paid household and gardening services.

26. At the hearing, the Applicant sought to cross-examine Dr Varghese to adduce some measure of concession from him that she did in fact suffer from a physical disability. She referred him to his report of 14 October 2015 wherein Dr Varghese said:

    Ms Cremona may well have Somatisation Disorder or other Somatoform Disorder but a neurological opinion is required as to whether there is any underlying neurological cause for her problems.

27. Dr Varghese responded with words to this effect: this part of his report comprised a summary of his provisional observations. Dr Varghese then read the other medical reports and – as outlined later in his report – it was clear that there was no underlying neurological condition and hence the diagnosis of Somatoform Disorder.

28. The findings of the orthopaedic surgeon, Dr Peter Dodd, are consistent with those of Dr Varghese. Dr Dodd said the Applicant’s symptomatology should be “labelled a somatization which basically means she has pain in the absence of any radiological or persistent clinical findings” [my underlining]. Further, that “Her current symptoms do not follow any recognised musculoskeletal distribution.” Whilst professing no legal expertise, Dr Dodd’s thought that “…in a Court of Law her case would not be upheld”.

29. The equivocal and largely unparticularised views of the psychologist, Mr Craig Holt, can be contrasted to those of Drs Varghese and Dodd. As previously observed by the Respondent, Mr Holt suggests the Applicant needs this domestic assistance but cannot identify a physical symptomalogical basis for that requirement. In his report of 6 October 2016, Mr Holt postulates that her “activities trigger increased pain” and that this “physical pain is exacerbated by any day to day activities”.[14]

    [14] Exhibit 4, T-Documents for file 2017/4996, T83, p 234.

30. In his letter dated 16 November 2016, Mr Holt maintained his opinion about an apparent need for continued paid assistance for household services in the absence of physical symptoms:

    Ms Cremona requires household services to assist with her day to day living tasks… At times, Ms Cremona’s psychological debilitation prevents her from being able to perform any day to day living tasks.[15]

    [15] Ibid, T88, p 245.

31. In a further report prepared a little over six months later, Mr Holt says:

    Ms Cremona requires support at home with basic tasks of daily living, including cleaning and gardening. Without support, her psychological condition deteriorates.

    …

    Without home support, I have grave concerns that her physical condition will deteriorate.[16]

    [16] Ibid, T97, p 276.

32. It would, to my mind, be unsafe and incorrect to rely on the findings of Mr Holt. This is especially the case when one has regard to the unequivocal opinion of Dr Varghese:

    Ms Cremona does not require and cannot require household help as requested as a result of Somatisation/Somatoform Disorder. There is no physical disability such that could give rise to a need for assistance. She can be said to be behaving in such a way as to indicate that she is physically disabled and in need of help. This behaviour would be reinforced if such help was provided.[17]

    [17] Ibid, T2, p 12.

33. The Respondent has identified four reasons why the opinion of Dr Varghese should be preferred to the opinion of Mr Holt.[18] I summarise each of those four reasons – with which I respectfully agree – below:

    (a)Qualifications and expertise. It is beyond argument that the qualifications, expertise and experience of Dr Varghese do outweigh those of Mr Holt. Well-intended though Mr Holt’s findings may be, Dr Varghese’s level of medical education and qualifications – as well as his level of expertise – places him in a different stratum of expert to assess what ails the Applicant and how such condition can be treated.

    (b)Mr Holt’s failure to acknowledge that there is no physical basis for the Applicant’s symptoms. Mr Holt treats the Applicant for adjustment disorder – not somatization disorder – and seems to assume that there is a physiological basis for the Applicant’s symptoms, when there is no medical evidence for such a conclusion. In reaching these conclusions, Mr Holt seems to ignore the established medical conclusions reached by Dr Dodd and Dr Varghese.

    (c)The nature of psychological treatment administered by Mr Holt. To be clear, the Tribunal makes no judgment on the effectiveness or competence of Mr Holt’s treatment of the Applicant. The critical point about his treatment for present purposes is that he maintains a connection between the denial of paid household services and a deterioration of the Applicant’s psychological condition. His opinion ignores the reality of there being no physical symptoms behind the reported physical pain. Indeed, the Applicant has no physical disability giving rise to any need for such paid household services. As observed by Dr Varghese, there is inherent risk in propounding a position of further provision of paid household services to the Applicant: “One of the important factors in managing Somatization is to limit the seeking out of medical conclusions and investigations. This can reinforce the sick role.”[19] Further, in a later report, Dr Varghese stated “… if… the psychotherapy [is] reinforcing the patient’s view that the disability is physical, then this is counter-productive leading to prolongation of the Somatization as against its extinction.[20]

    (d)The Respondent did not have an opportunity to cross-examine Mr Holt. Mr Holt was not called by the Applicant. His evidence was thus not tested. Dr Varghese did attend the hearing and the evidentiary counterpoint his oral evidence provided to the untested views of Mr Holt leads me to give little weight to Mr Holt’s opinions.

    [18] Exhibit 8, Respondent’s Outline of Submissions, p 4, [21]- [24] .

    [19] Exhibit 4, T-Documents for file 2017/4996, T72, p 202.

    [20] Ibid, T93, p 270.

1. In terms of an ultimate finding about whether the Applicant continues to suffer from the accepted injury, there is no doubt in my mind that she does. However, I am not satisfied that the Applicant reasonably requires household services as a result of her condition. This is for a number of reasons. First, she is physically capable of undertaking the household tasks for which he seeks assistance. It is not in my view reasonable for her to require assistance with tasks she can physically undertake. Secondly, the better evidence in this case is that the Applicant’s condition will only be reinforced by her being allowed further household assistance.

2. The Applicant thus does not reasonably require paid household services “as a result of” the accepted somatization disorder. Accordingly, there is no liability on the part of the Respondent to compensate the Applicant for these services.

   2. Is the Respondent liable to pay for the claimed MRI scan pursuant to s 16 of the SRC Act?

   Statutory Framework

3. Liability of the Respondent to compensate the Applicant for the cost of the MRI treatment must be determined in accordance with s 16(1) of the SRC Act which provides as follows:

   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 for that medical treatment.

4. The first issue is whether the claimed MRI treatment constitutes “medical treatment”. Section 4 of the SRC Act defines “medical treatment” as:

   …

   (b) Therapeutic treatment obtained at the direction of a legally qualified practitioner; 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.

5. Section 4 of the SRC Act goes on to define “therapeutic treatment” to include “…an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.” There is a ready acceptance by the Respondent that an MRI examination is captured by the definition in sub-paragraph (e) appearing in the definition of “medical treatment” in s 4.[21]

   [21] Exhibit 8, Respondent’s Outline of Submissions, p 5, [26].

6. I agree with the Respondent’s contention that the claimed MRI scan does not fall within the definition of “therapeutic treatment” in sub-paragraph (b) of the definition of “medical treatment”. This is because s 5A(1)(b) of the SRC Act defines “injury” as “an injury… suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment.” In the present matter, the Applicant’s accepted injury is somatization disorder. Given the psychological nature of the accepted condition, the claimed MRI scan cannot constitute “medical treatment” for somatization disorder because it is a physiological test, not an examination or test for diagnosing somatization disorder, which is a psychiatric illness.

7. The second issue is whether the claimed MRI scan was obtained “in relation to” the injury. This is an issue of relatively short compass given (1) my finding that the Applicant does not suffer from any physical condition; (2) her accepted condition is somatization disorder; and (3) an MRI scan’s purpose is to assess and assist with treatment of physical conditions. This is confirmed by the “Qscan” request form completed by Dr James Powers, the Applicant’s local medical officer on 1 August 2017:

   CLINICAL DETAILS

   review of her back sxs

   her back

   jabs, sharp

   medial knee

   inner calf

   lateral thigh to back

   left L4 nerve

   pt doesnt [sic] want CT/radiation/refuses

   wants MRI [22]

   [22] Exhibit 5, T-Documents for file 2017/6751, T31, p 98.

8. It is clear that the subject MRI scan has got nothing to do with treating the Applicant’s accepted condition of somatization disorder. Rather, it is meant to be a physiological investigation. Nor can it be for diagnosing the Applicant’s somatization disorder, which has been accepted as diagnosed for around two decades. Further, in a letter dated 25 January 2018, addressed to the Respondent, Dr Powers, who referred the Applicant to Qscan, said:

   Regarding the form of medical treatment requested, I feel this is best answered by a psychiatrist as this is a very complex condition. Somatization disorder is where the patient believes that they have physical complaints and pains however no medical professional can prove and [sic] cause of its existence.[23]

   [23] Ibid, T25, p 88.

9. There is, to my mind, no prospect of finding this claimed MRI scan was obtained in relation to the Applicant’s somatization disorder. There is no evidence of any suggestion, referral or direction from any medical expert to Dr Powers to obtain the subject MRI scan “in relation to” or as part of a treatment regime for the Applicant’s somatization disorder – it must have been to investigate possible physiological causes of pain for the Applicant, which have not been accepted as compensable injuries under the SRC Act.

10. The third issue involves an assessment of whether it is reasonable for the Applicant to obtain the MRI scan in the circumstances of her accepted condition. Section 16 of the SRC Act imposes a test that has both subjective and objective elements. It is necessary to determine whether the treatment is objectively reasonable given the subjective circumstances of an Applicant’s injury. I hasten to add that the subjective element only applies to the state of the injury itself, not to, for instance, the state of the Applicant’s personal life.[24] Applied to present circumstance, the question becomes: was the claimed MRI scan objectively reasonable given the subjective circumstances of her accepted somatization disorder?

    [24] Re Jorgensen and Commonwealth (1990) 23 ALD 321, 325 (Gray J).

11. In determining the objective reasonableness of a treatment or course of treatment, the Tribunal is often tasked with, essentially, balancing the long-term benefit of the treatment against its cost.[25] Due to the very nature of the test, the list of factors the Tribunal may take into account in making the assessment varies. In Alamos and Comcare,[26] Deputy President Constance considered the following factors as a helpful non-exhaustive list:

    ·the benefit of the treatment to the injured worker;

    ·the long-term effect of the treatment;

    ·whether the treatment is likely to cure the injury or significantly reduce its effects;

    ·whether the treatment maintains the status quo;

    ·the cost of ongoing treatment[27]

    [25] Comcare v Rope (2004) 135 FCR 443, 448 (Stone J).

    [26] [2014] AATA 629.

    [27] Ibid, [24].

12. In a similar vein, Mansfield J in Comcare v Holt gave examples of some circumstances where the treatment would be unreasonable, which included:[28]

    ·“where treatment is unreasonable because its anticipated therapeutic benefit does not justify the expense involved in the circumstances”;

    ·“where proposed treatment, although of therapeutic benefit, is unreasonable having regard to the extent of the anticipated benefit of the cost involved, even if no similar  treatment had previously been undertaken”; and

    ·“where treatment like the proposed treatment which in the past has had therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of past experience”.

    [28] Comcare v Holt [2007] FCA 405, [25]-[26].

13. As has been pointed out by this Tribunal,[29] a given treatment may qualify as being substantially reasonable where the person experiences temporary relief from pain as a result of that treatment. However, the subjective reasonableness of a given treatment dissipates if a point is reached where the person derives no benefit unless it is part of a plan for permanent improvement in the condition or health of that person. An MRI scan in no way contributes to the amelioration or resolution of somatization disorder. Further, there is specialist medical opinion before me making it clear that the Applicant’s condition is not physical in nature (Dr Peter Dodd, orthopaedic surgeon) and any continuation in such treatments will only exacerbate or perpetuate the Applicant’s somatization disorder. Thus in no way can it be found that compensation for an MRI scan would constitute objectively reasonable treatment for the subjective circumstances of the Applicant’s somatization disorder.

    [29] See Chowdhary and Comcare [1998] AATA 448, [53].

14. The question of whether the MRI scan is reasonable for the Applicant to obtain in the circumstances of her accepted condition requires consideration of several competing factors. They comprise: (1) the long-term benefit to the Applicant of maintaining the course of treatment; (2) whether the Applicant is likely to become dependent on the treatment; and (3) its cost.

15. It is clear the Applicant would derive no benefit from either the claimed MRI scan or further such scans. Such scans have nothing to say about her accepted somatization disorder. If anything, continued access to such investigations will only prolong and propound her somatoform disorder. It is not appropriate to visit the cost of this MRI scan and any such future scans upon the Respondent (and thus the Australian taxpayer). I therefore find that the MRI scanning (even a singular such scan) does not constitute reasonable treatment for the Applicant in the circumstances of her accepted somatization disorder. 

    DECISION

16. In relation to the issues requiring determination pursuant to s 29 of the SRC Act, I address each of those issues as follows:

    (a)Does the Applicant continue to suffer from the accepted somatization disorder? Answer: Yes.

    (b)If question (a) is answered in the affirmative, does the Applicant – “as a result of” – this accepted somatization disorder “reasonably require” household and gardening services? Answer: No.

    (c)If question (b) is answered in the affirmative, what amount of such services per week is “reasonable in the circumstances”? Unnecessary to answer.

17. In relation to the issues requiring determination pursuant to s 16 of the SRC Act, I address each of those issues as follows:

    (a)Does the MRI scan constitute medical treatment under the SRC Act: Answer: Yes.

    (b)If question (a) is answered in the affirmative, is the MRI scan treatment obtained “in relation to the injury”: Answer: No.

    (c)Was it reasonable to obtain that treatment in the circumstances? Answer: No.

    CONCLUSION

18. It cannot be said that the Applicant requires household or gardening services as a result of her accepted somatization disorder. The claim for compensation pursuant to s 29 of the SRC Act therefore fails. The MRI scan is not objectively reasonable in the subjective circumstances of the Applicant’s accepted somatization disorder. The claim for compensation pursuant to s 16 of the SRC Act therefore also fails.

19. In accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), I affirm both:

    (a)the reconsideration of own motion dated 5 July 2017; and

    (b)the reviewable decision dated 6 October 2017.

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..........................[sgd]..............................................

Associate

Dated: 21 September 2018

Date of hearing:	29 August 2018
Applicant:	By Telephone
Counsel for the Respondent:	Ms K Slack
Solicitors for the Respondent:	Sparke Helmore