DUNKERLEY and COMCARE

[2010] AATA 417

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 417

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/6070

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ULLA-MAIJA DUNKERLEY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date8 June 2010

PlaceCanberra

Decision The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

WORKERS COMPENSATION - accepted injury of adjustment disorder with anxious mood - claim for reimbursement of university fees - whether medical treatment - meaning of therapeutic treatment - decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 16

Bashar v Comcare (2002) FCA 837 Thiele v Commonwealth (1995) ALR 172

Comcare and Watson (1997) ALR 173

Capital Territory Health Commission and Cavanagh (1978) FCA 5

REASONS FOR DECISION

8 June 2010 Ms A F Cunningham (Senior Member)   

1. The applicant, Ulla-Maija Dunkerley has an accepted claim for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for the injury, "adjustment disorder with anxious mood". The date of injury was deemed to be 29 October 2007.

2.      Comcare accepted liability for payment of consultations with a general practitioner, counselling sessions with a psychologist and related pharmaceuticals up to and including 2 October 2009.  Ms Dunkerley subsequently submitted a claim for gym and university fees.  Comcare agreed to pay for a three month gym membership but rejected Ms Dunkerley's claim for reimbursement of university fees on the basis that such fees do not meet the definition of "medical treatment" under the SRC Act.  Ms Dunkerley seeks a review of Comcare's reviewable decision dated 17 December 2009 affirming a determination dated 17 November 2009.

Issues

3.      The issues for the Tribunal to determine are;

1.        Whether the applicant's university fees qualify as medical treatment           obtained in relation to her "adjustment disorder with anxious mood".

2. Whether it was reasonable for the applicant to undertake university studies for the purposes of Section 16 of the SRC Act.

the applicant's case

4.      Dr Lawrence, the applicant's medical practitioner and a primary care psychiatrist certified on 4 December 2007 that Ms Dunkerley was fit to return to her pre-injury duties in another work area of MDST as from 4 December 2007.  However this restriction was not able to be accommodated and Ms Dunkerley remained on leave.

5.      Ms Dunkerley contends that her doctor had recommended that she undertake activities to occupy her time as she was unable to return to work.  She claims that she acted on this advice and enrolled in a university Masters Degree Course in teaching English as a second language.

6.      It was Ms Dunkerley's evidence that the course of study alleviated her stress and anxiety by offering her the social inclusion that had been denied in her workplace.

7.      Ms Dunkerley submitted a copy of a research summary from Victoria Health entitled "Social Inclusion as a Determinant of Mental Health and Wellbeing".  Ms Dunkerley argued that her course of study constituted medical treatment in that it afforded therapeutic benefit in alleviating her condition.  Ms Dunkerley considered that the Commonwealth had failed to comply with its responsibility to provide a safe workplace environment in that she was subject to workplace bullying and not afforded a safe return to work.  In these circumstances she contends that her university study course was a reasonable activity to obtain.

8.      It was Ms Dunkerley's evidence that she attended university for the purpose of social interaction.  She said that she could have undertaken the course by distance education but chose to attend in person.  It was never her intention to complete the course.  Her claim relates to a period of 2 years of study.  During the first year Ms Dunkerley attended University in Canberra but she completed her second year of study by the distance education services offered through UTAS.

the respondent's case

9. Mr Peter Woulfe submitted that Ms Dunkerley's university course does not constitute medical treatment for the purpose of the SRC Act as it does not fall with any of the types of the treatment listed in subsection 4 (1) of the SRC Act.

10. Subsection 4(1) requires that the medical treatment be either supervised by a legally qualified medical practitioner or constitute therapeutic treatment which is obtained at the direction of a legally qualified medical practitioner. It was Mr Woulfe's first contention that the term "treatment" goes beyond the mere acceptance of advice from a medical practitioner and requires a person to do something in the exercise of his or her skill which is designed to alleviate an injury. In the alternative, Mr Woulfe submitted that the applicant's university course was not therapeutic treatment as there is no evidence that it was obtained at the direction of a legally qualified medical practitioner as required by subsection (b). Mr Woulfe submitted that the Act provides an exhaustive definition of the term "medical treatment" in that it must either meet the definition of subsection (a) or (b) or the other listed subsections of section 4.

11.     Mr Woulfe referred the Tribunal to the Macquarie Dictionary definition of "treatment" which is "the act or manner of treating; action or behaviour towards a person; management in the application of medicines, surgery etc."

12.     This definition is consistent with Nimmo J's interpretation of medical treatment in Capital Territory Health Commission and Cavanagh (1978) FCA 5 where he said;

"I think that the key word in paragraph (b) of the definition of 'medical treatment' and in the definition of 'therapeutic treatment' in S5(1) is the word 'treatment' which seems to me to contemplate the doing of something by someone to or for the employee concerned.  It goes beyond the mere acceptance of advice from a medical practitioner to move to another climate.  In my opinion it requires a person to do something in the exercise of his skill which is designed to alleviate an injury."

consideration

13.     "Study" is defined in the Butterworth's Australian Legal Dictionary as "the application of the mind to the acquisition of knowledge, as by reading, investigation or reflection; the cultivation of a particular branch of learning, science or art; a particular course of effort to acquire knowledge."  The verb "to treat" is defined in the Macquarie Dictionary as "...  to deal with (a disease, patient, etc) in order to relieve or cure".  This definition is suggestive of an intended outcome.  Nimmo J's discussion of the word "treatment" also reinforces the need for some action that is designed to relieve or alleviate an injury. 

14. Ms Dunkerley submitted that her university course provided her with relief from her symptoms which may well have been the case. It cannot be said however, that the objective of university study is to alleviate an injury. The relief that the course of study afforded to Ms Dunkerley was a beneficial consequence of the activity. For other persons however, undertaking university studies can be a source of stress and anxiety. I do not accept that the objective of Ms Dunkerley's university study was to alleviate her injury. Nor am I satisfied that her university studies constitute "therapeutic treatment" within the meaning of subsection 4(1). There is no evidence that the university course was undertaken at the direction of a legally qualified practitioner.

15.     Ms Dunkerley's clinical psychologist, Anna Crichton in a report dated 23 September 2009 included "support with her studies" in one of the recommendations following her diagnosis of an aggravation of Ms Dunkerley's existing injury.  Although Ms Dunkerley contends that a course of university study was discussed with her General Practitioner, Dr Patricia Batchelor, Dr Batchelor makes no reference to it in her reports.  There is no evidence that the university course was directed by a legally qualified medical practitioner.

16.     The requirement of Section 4(1) that therapeutic treatment be obtained at the direction of a legally qualified medical practitioner was reinforced by Finn J in Comcare and Watson (1997) ALR 173. Finn J said at page 176:

"The formula at the direction of ',in this setting contains an imperative element - by which I mean a doctor prescribes a specific course to be taken.  That course in turn must be therapeutic treatment".

17.     His Honour went on to state "that the words 'at the direction of' could also mean 'advised, prescribed or ordered'" as considered by Hill J in Thiele v Commonwealth (1995) ALR 172.  When discussing the term "therapeutic treatment" Finn J said "a course of treatment designed to, or aimed at, alleviating a pain caused by an injury or disease is in my own view, properly to be regarded as therapeutic treatment." Finn J noted that the purpose or object must be the treatment of the particular injury in question for:

"If such is not the actual, specified purpose of the activity then notwithstanding its beneficial effects, it will not relevantly be therapeutic treatment for present purposes. Secondly, because such treatment is purposive, an indicator that a doctor prescribed activity is intended relevantly, to be therapeutic will be the adoption of some level of monitoring of it to gauge whether it is appropriately adapted to it's purpose or is effective in some degrees in realising that purpose. Obviously the nature and extent of such monitoring will be affected significantly by the nature of the treatment.  Some forms of treatment may require close checking; others may well be self monitored, once prescribed.  I mention this simply to caution against the view that a doctor's positive and active control and management are indispensable elements in treatment".

18.     This passage by Finn J in Comcare v Watson was endorsed by Madgwick J in Bashar v Comcare (2002) FCA 837 where he said:

"It is perfectly clear from what Finn J said and, with respect, I agree with His Honour that the purpose of the treatment must be therapeutic." 

19.     As stated above, whilst I can accept Ms Dunkerley's evidence that her course of study was beneficial in providing her with relief from her symptoms, the objective of the university course was not to alleviate an injury, but as defined, it was for the acquisition of knowledge and the cultivation of learning.  The meaning of "therapeutic treatment" has been clearly articulated by the Federal Court as discussed above. 

20. For these reasons I find that Ms Dunkerley's course of study for which compensation is claimed does not constitute "medical treatment" within the meaning of the Act. It does not constitute "therapeutic treatment" and was not obtained at the direction of a legally qualified medical practitioner. It is accordingly unnecessary to consider whether the treatment was reasonably obtained within the meaning of Section 16 of the SRC Act.

21.     The decision of the Tribunal is to affirm the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed:  [Sgd M Brereton]
               M Brereton (Administrative Assistant)

Date/s of Hearing  12 May 2010
Date of Decision  8 June 2010
Solicitor for the Applicant          Applicant appeared on her own behalf
Counsel for the Respondent     Mr Peter Woulfe
Solicitor for the Respondent     Ms Amanda Danti, Dibbs Barker