Eather and Repatriation Commission

[2007] AATA 1835

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1835

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q 2006/761

VETERANS’ APPEALS DIVISION		)
Re		MICHAEL EATHER

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date5 October 2007

PlaceBrisbane

Decision The decision under review is set aside. The Tribunal decides in substitution that the respondent is required to meet the full cost of Mr Eather’s travel in connection with his treatment by Ms Bendall, his treating psychologist.

.................[Sgd]......................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – travel expenses – reimbursement for travel to treating practitioner – treating practitioner more than 50km from residence – application for reimbursement endorsed for treatment by treating practitioner – no power of Commission to form view of closer suitable treatment location when treating practitioner greater than 50km distance and endorsed for treatment – decision set aside

Veterans’ Entitlements Act 1986 s 110

Veterans’ Entitlements Regulations 1986 regs 3, 9

Re Costello and Secretary, Department of Transport (1979) 2 ALD 934

REASONS FOR DECISION

5 October 2007	Senior Member B J McCabe
introduction

1.      This case requires that I consider the scope of the respondent’s obligation under the Veterans’ Entitlements Regulations1986 to reimburse a veteran in respect of travel expenses incurred in the course of seeking treatment for a service-related condition. In this case, the respondent has declined to reimburse the full amount of the veteran’s claim because it says there are other acceptable providers who are closer to the veteran’s new home.

2.      The respondent’s primary decision is dated 15 May 2006. The letter does not explain why the Commission declined to pay the full amount of the applicant’s claim. The reasons are set out in a subsequent letter dated 7 June 2006. The decision was affirmed in a letter dated 17 July 2006.

3.      The hearing was held on 30 March 2007. I note the regulations under consideration in this case have since been amended, with the amendments expressed to take effect as of 23 March 2007. The reviewable decision in this case was made during the course of 2006, so the amended legislation does not apply – although its impact will obviously be relevant if Mr Eather continues his treating relationship with his existing psychologist. In those circumstances I provided the parties with an opportunity to make written submissions on the implications of the amendments.

the facts

4.      There was no dispute as to the facts in this case. Mr Michael Eather suffers from service-related Post Traumatic Stress Disorder (PTSD). The respondent has been paying for his treatment by a clinical psychologist, Ms Cecilia Bendall. Mr Eather has been seeing Ms Bendall since 1998. He appears to be making progress in her care.

5.      Mr Eather has recently moved away from the immediate area where Ms Bendall conducts her practice. Mr Eather has continued to make a round-trip of 190 kilometres between her rooms and his home for his appointments. He has asked for the respondent to pay travel expenses in respect of the entire journey. Although the respondent initially agreed to reimburse him in respect of those travel costs, it has now decided it should not continue making the payments. The respondent is prepared to continue funding the sessions with Ms Bendall but it will only pay travel expenses in respect of the first 100 kms of his round-trip. It says Mr Eather can pay for the balance of the journey out of his own pocket if he wishes to continue seeing Ms Bendall when other practitioners are available closer to his home.

6.      The applicant acknowledges there are other practitioners in his local area with expertise in treating PTSD, but he says they are no substitute for Ms Bendall. Mr Eather says he relies heavily on Ms Bendall and his treating doctor, Dr Maura Harvey. He says he has dealt with many painful memories and other issues during the course of his treating relationship with Ms Bendall. He fears he would have to revisit those issues and memories if he were required to end that relationship and take up with another provider. He says that would be unbearable. He says he would rather not see anyone if he cannot see Ms Bendall.

7.      Dr Harvey agreed that changing to another psychologist would be traumatic for the applicant. She says Ms Bendall and the applicant have established a rapport. She says it would not be in his best interests to change providers in the circumstances. Dr Harvey doubted the applicant would see anyone else, which would be bad for his health as well. She said Mr Eather would become more dependent upon her.

8.      Ms Bendall was asked to be available to give evidence but she was unable to be contacted during the hearing. Mr Stoner for the respondent agreed Ms Bendall was likely to give evidence that there were therapeutic objections to changing providers at this juncture. I am prepared to accept that is so for the purpose of this exercise.

the relevant law

9. Section 110 of the Veterans’ Entitlements Act1986 (the VEA) authorises the respondent to pay the travel expenses of a veteran attending approved treatment. Regulation 9 of the Veterans’ Entitlements Regulations1986 (the VER) sets out the conditions which apply to payments made pursuant to s 110 of the VEA. Regulation 9 has been amended. Given the question at issue here is whether Mr Eather was entitled to a payment at an earlier time, I must apply the law that was in place at the time: Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 944.

10.     Subregulation 9(3) provided for a limit on the amount payable to an entitled person in respect of travel. The limit was calculated by reference to the cost of the most appropriate mode of travel in the circumstances (defined in reg 9(5)) and the distance to be travelled (defined in reg 9(6)). Subregulation 9(6) says the maximum amount that can be paid to an entitled person for the return journey is the cost of travelling of 100 kilometres unless the entitled person’s application is endorsed for treatment. The expression endorsed for treatment is defined in reg 9(7) to mean:

written confirmation endorsed on the application by the entitled person's treating practitioner that:

(a) the treatment met the health care needs of the entitled person; and

(b) the treatment location was as close as practical to the entitled person's residence.

11.     Where the distance from the applicant’s home to the treatment location is less than 50 kilometres, reg 9(6)(c) provided that travelling expenses were payable in respect of that distance unless the Commission formed the view that another suitable treatment location was closer. If the Commission did reach that view, it was only required to pay the cost of travelling to the closer location: reg 9(8). But that discretion to form a view about closer treatment alternatives was only available where the applicant was seeking treatment from someone within a 50 kilometre radius. If the applicant was travelling more than 50 kilometres, the respondent had less freedom to second-guess the applicant’s treatment choices. This aspect of the regulations has been amended. Subregulation 9(7) now incorporates a requirement that the treating practitioner’s view be confirmed by the respondent: see amended reg 9(7)(b).

12.     In this case, Ms Bendall indicated on the claim form that she is the closest provider of treatment that met the needs of the veteran. It seems likely she offered the endorsement on the basis of her belief she was in the best position to offer the treatment given her existing relationship with the applicant. That is certainly the view of Dr Harvey.

13.     The respondent says the treating practitioner’s endorsement cannot be the end of the matter. Mr Stoner pointed to the evidence of other competent practitioners in Mr Eather’s area who had the training and experience to deal with his problems. Whether or not Ms Bendall would provide the best treatment for Mr Eather, there were other practitioners in the local area who could meet Mr Eather’s health care needs.

14.     Mr Payne, for the applicant, argued the treatment offered by other practitioners did not meet Mr Eather’s needs because the other providers did not have an established relationship with him. That continuity was – at least for now – an essential part of Mr Eather’s successful treatment regime. Treatment at the hands of an alternative provider would necessarily be inferior to the treatment provided by Ms Bendall. The alternative practitioners did not meet his needs as well as Ms Bendall. Mr Payne went on to argue that the choice of Ms Bendall was not simply the product of preference; Mr Eather felt (and his doctor agreed) it was medically advantageous for him to remain in the care of Ms Bendall.

15.     While other treating practitioners in the area are capable of treating patients with PTSD, the medical evidence before me suggests that treatment could not be said to meet the health care needs of Mr Eather if resort to that treatment would result in an adverse health impact. While I doubt I have the ability to second-guess Ms Bendall’s opinion as a treating practitioner in any event, the opinion of Dr Harvey suggests Ms Bendall’s conclusion is correct.

16.     I do not think I would reach a different conclusion even if I were to apply the amended legislation. As I have already pointed out, the amended reg 9(7)(b) adds a requirement that the Commission confirm the treatment location is as close as practical to the entitled person’s residence. Given the state of the medical evidence about the importance of maintaining continuity of treatment in order to avoid adverse outcomes, I would have set the decision aside.

17.     That does not mean the applicant is entitled to continue travelling to see Ms Bendall at public expense for as long as his treatment continues. There may come a time when he can see another provider without serious consequences for his health. That day may or may not be far away, especially if Ms Bendall is able to provide counselling to assist him to that end. I note the respondent has agreed to meet the costs of travel for at least one additional session with Ms Bendall to facilitate a transfer. Given I did not hear from Ms Bendall, I do not have enough evidence to form a view as to how many sessions it would take before the applicant could safely use another provider’s services.

conclusion

18.     This is an unusual case. I imagine it would only be in rare cases that continuity of treatment is essential to meet the health needs of the applicant. The duration of the treating relationship, the nature of the condition and the evidence of Dr Harvey all counted heavily in the applicant’s favour. There was no medical evidence to dispute the applicant’s claim.

19.     It remains to be seen whether the medical evidence will continue to support a case for payments being made in response to fresh applications for payment of travel costs. The Tribunal’s decision in this case only relates to the claims that were the subject of the decision under review. I am not in a position to make a ruling as to how the Commission should deal with subsequent applications under the amended legislation in light of fresh evidence.

20.     The respondent’s decision dated 15 May 2006 (affirmed in its letter of 17 July 2006) is set aside. The Tribunal decides in substitution that the applicant’s claim for travelling expenses incurred in the course of consulting Ms Bendall should be paid by the respondent.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:         .....................................................................................
  Associate:     Stephen O’Grady

Date of Hearing  30 March 2007
Date of further submissions     22 August 2007
Date of Decision  5 October 2007
For the applicant  Mr N Payne, advocate
For the respondent                   Mr J Stoner, departmental advocate