Eleanor Rope and Comcare
[2013] AATA 280
[2013] AATA 280
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2962
Re
Eleanor Rope
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 8 May 2013 Place Canberra
The decision under review is set aside. Mrs Rope is entitled to compensation in respect of the costs of attending mindfulness classes as directed by her treating doctor and supported by her psychologist, being medical treatment that it is reasonable for her to obtain in relation to her accepted injury, subject to claim and to periodic review.
Calculation of the amount of compensation, if any, that may be payable to Mrs Rope in respect of travel costs she has incurred in order to obtain this treatment is remitted to Comcare.
The parties have 14 days in which to file submissions as to orders for costs.
.........................[sgd]..........................................
Mr S. Webb, Member
WORKERS COMPENSATION – liability accepted for physical and psychological injuries – depression – chronic pain – medical treatment – meaning of ‘therapeutic treatment’ – meaning of ‘at the direction of’ – classes obtained for a therapeutic purpose at the direction of a treating medical practitioner are within the meaning of ‘medical treatment’ – no requirement for a plan to permanently improve the injury – test of reasonableness – medical treatment is in relation to the injury and reasonable to obtain in the circumstances – decision set aside and substituted
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 5A, 16
Bashar v Comcare Australia [2002] FCA 837.
Capital Territory Health Commission v Cavanagh [1978] FCA 5.
Re Chowdhary and Comcare (1998) AATA 13003.
Comcare v Heffernan [2013] FCA 299.
Comcare v Holt [2007] FCA 405.
Comcare v Rope (2004) 135 FCR 443.
Comcare v Watson (1997) 46 ALD 481.
Re Dunkerley and Comcare [2010] AATA 417.
Re Heffernan and Comcare [2012] AATA 371.
Holt v Comcare [2006] AATA 1059.
Thiele v Commonwealth (1990) 11 AAR 376.
REASONS FOR DECISION
Mr S. Webb, Member
8 May 2013
Eleanor Rope was injured in a motor vehicle accident in 1987 when she was in Commonwealth employment. The injuries she sustained caused her to experience chronic pain and other symptoms. Her symptoms were exacerbated in a fall at work. She ceased employment on invalidity grounds in 1999. Subsequently, she has claimed and been paid compensation in respect of a number of medical conditions, including depression, and for related treatments, including pain management, psychoneuroimmunology and psychological treatment. Following cessation of psychoneuroimmunology treatment, Mrs Rope discussed other treatment options with Dr Welberry, her treating general practitioner of long standing, and with Marion Swetenham, her treating psychologist. As a result, both practitioners supported Mrs Rope to commence a course of study relating to mindfulness.
Mrs Rope lives on a farm outside Canberra and she claimed compensation for the costs of travel to attend classes. Comcare decided to reject the claim by primary determination and on reconsideration. Mrs Rope applied for review.
The background facts follow.
On 19 October 2011 Dr Welberry wrote to Comcare[1] –
…I am writing to seek your approval for Eleanor Rope to do a course of study at St Mark’s College in 2012. The purpose of this would be to assist in treating her depression, to increase her self esteem and to give her a sense of purpose. In addition it would help to prevent cognitive decline…
… Attendance (rather than a correspondence course) would be beneficial, as it would give her the opportunity to engage in intellectual discussion and connect socially with other like-minded people. She has been quite socially isolated because of her condition, and this has contributed to depression, which in turn may have increased pain levels
[1] T129 folio 267.
On 2 November 2011, Ms Swetenham wrote to Dr Welberry[2] -
I realise I have not been in contact with you regarding progress for Mrs Eleanor Rope and that one is long overdue.
As you are aware, Mrs Rope has expressed interest in undertaking informal study at St Marks College in theology. I fully support this activity, as I believe it will be therapeutic for Mrs Rope, who has become more anxious and depressed in the last year. Mrs Rope is socially isolated …
…
Mrs Rope suffers from reactive depression and anxiety to persistent pain. Having a structured activity such as study, which exercises her mind and provides opportunities for social connection, would most likely be mood enhancing as well as distracting her from her pain and difficult social situations. Given the informal nature of this study, her participation won’t count toward a degree, which will reduce pressure on Mrs Rope in the event her health problems prevent her from attending on occasions.
I would continue to work with Mrs Rope in managing her depression, and my hope is that the frequency of consultations with me (currently weekly) would ultimately reduce to fortnightly and possibly monthly depending on her progress.
[2] T133 folios 272-273.
On 17 November 2011, Ms Anne Just, treating psychoneuroimmunologist, completed a Psychology/Counselling Review Treatment Plan[3] in which three treatment goals were identified –
1. Reduce depression and anxiety, improve intellectual stimulation.
2. Maintain/optimise benefits from psychoneuroimmunological treatment.
3. Reduce pain and increase daily activities.
Ms Just reported some improvement following treatment and recommended continuation of psychoneuroimmunological treatment strategies. Subsequently, Ms Just left the country and ceased providing psychoneuroimmunological treatment to Mrs Rope. As I understand it, no alternative or replacement practitioner in this discipline has been identified.
[3] T134 folios 274-275.
On 17 November 2011, Ms Swetenham completed a Psychology/Counselling Review Treatment Plan[4] –
[4] T135 folios276-277.
Goals Intervention/strategies Measures of progress – standardised/customised/ functional Estimated date of achievement or review 1. Reduce depression MBCT DASS 21 2. Reduce anxiety CBT DASS 21 3. ↑ activity Pacing, planning Undertake and sustain activity
On 12 December 2011, Comcare decided to extend liability for Mrs Rope’s psychological treatment by Ms Swetenham on a fortnightly basis until 30 June 2012[5]. Mrs Rope sought reconsideration of this decision. On 17 February 2012, Comcare reconsidered and revoked the decision, accepting, instead, that Mrs Rope was entitled to weekly psychological treatment by Ms Swetenham until 31 May 2012[6].
[5] T139 folio 282-283.
[6] T152.
On 14 December 2011, Dr Welberry wrote to Comcare[7] and said –
… I would like to clarify with you that my recommendation that Mrs Rope undertake a course of study next year was as a form of treatment for her depression and social isolation, which is related to her compensable condition… The aim of this treatment is not to get her back to work, but to alleviate her depression. In the long run, this may result in satisfactory self management and a reduced need for other forms of treatment.
[7] T140 folio 284.
On 18 January 2012, Comcare decided to reject Mrs Rope’s claim for compensation in respect of a course of study at St Mark’s College[8]. Mrs Rope did not seek reconsideration of this decision[9].
[8] T149.
[9] T151 folio 299.
On 30 April 2012, Mrs Rope wrote to Comcare[10] -
Later in February 2012 I heard of the existence of an organisation called the Canberra School of Practical Philosophy, and that it was operating an introductory class in term 1 of 2012. The venue is part of the campus for Charles Sturt University and located in the Canberra suburb of Barton. I thought my participation in these philosophy classes might be an excellent alternative study/treatment program for me, and sought permission to enrol at the School …
So now I write to advise Comcare that I intend to participate in these term 2 philosophy studies, and to seek Comcare’s support of this treatment for me. The support I am seeking from Comcare today is no more than for Comcare to accept that the proposed philosophy study at the School is approved treatment for me, so that I would become eligible for travel assistance from Comcare when required by me. I consider it essential for me to obtain this travel approval from Comcare, given that I live on a farm in an area that has no access to any form of public transport apart from taxi cabs. There are days when my compensable condition is such that I am not medically fit to drive in my own car to and from treatment and, if I did not take a taxi [reimbursed by Comcare], would likely forfeit attending a treatment session altogether.
…
[10] T155 folios 307-308.
On 1 May 2012, Dr Welberry wrote to Comcare[11], supporting Mrs Rope’s application. She said –
… In my opinion, the course of study which she intends to undertake is treatment for the symptoms identified as being related to her compensable condition. I propose also to monitor her response to this treatment. It is hoped that benefits will be seen in terms of less pain, less digestive system disturbance, and improved mental state.
[11] T156 folio 309.
On 22 May 2012, Comcare decided to reject Mrs Rope’s claim in respect of travel to and from classes at the Canberra School of Practical Philosophy[12]. On 29 May 2012, Mrs Rope requested reconsideration of this decision.[13] On 29 June 2012, a Comcare officer reconsidered the matter and affirmed the original decision to reject the claim[14].
[12] T160.
[13] T163
[14] T169.
On 28 September 2012, Mrs Rope filed a statement in these proceedings, in which she explained the nature of the course in which she was enrolled and her hopes in relation to it –
Through participating in a formal study program, I am hoping to achieve greater purpose in my life as well as finding intellectual stimulation to help fill losses which resulted from my having to take early retirement from the workforce.
On this letter, it appears that the cost of the course is $110 per term.
On 20 February 2013, Dr Welberry filed a further brief report, in which she stated –
This is to confirm that I recommended to Mrs Rope that she consider undertaking a course of study in an area which included mindfulness. At the time the course available which was of particular interest to Mrs Rope was a religious course at St Mark’s Theological College. I believed that such a course would have a therapeutic benefit and would be likely to help her depression, which is an accepted and long standing compensable condition. This would complement other treatment she had been receiving, especially since she no longer had access to psychoneuroimmunology and was intolerant of anti depressants. Unfortunately, she was too late to enrol in this course, but found another course in philosophy run by Canberra School of Practical Philosophy, which seemed to me to fulfil the same purpose, and also included mindfulness.
On 7 March 2013, Dr Gary Grohmann, Director, School of Practical Philosophy, provided Mrs Rope with a brief report setting out the content and topics of the course in which she is enrolled and discussing the concept of mindfulness –
… Our courses are grounded in mindfulness: the practice of living each moment attentively, respectfully and openly. All of our courses have as their base the practice of sitting mindfulness meditation (we call this “the exercise”). At each class, students practice mindfulness together, and discuss the practice – their challenges and insights. Regular practice at home and during the day is encouraged, where possible. This strengthens students’ mindfulness skills and establishes it as a practice for them in daily life.
The mindfulness practice provides the foundation for everything else that is taught in our classes…
With the agreement of the parties, a neutral evaluation was listed to take place on 22 January 2013. A written evaluation report was finalised on 13 February 2013. Comcare sought to rely on this report at hearing and, despite not agreeing with the result, Mrs Rope expressly did not object and filed a detailed response. I have had regard to the content of those documents.
There are three issues for determination, on review –
(a)whether the course of study at the Canberra School of Practical Philosophy in which Mrs Rope enrolled is ‘medical treatment’ for the purposes of the Safety, Rehabilitation and Compensation Act 1988(Cth) (the 1988 Act); and, if so
(b)whether the course is ‘medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances)’ for the purposes of s 16 of the 1988 Act; and, if so (and compensation in respect of the medical treatment is payable)
(c)whether Mrs Rope reasonably incurred expenditure ‘making a necessary journey for the purpose of obtaining that medical treatment’.
Is the course ‘medical treatment’?
Comcare asserts that the course of study in which Mrs Rope enrolled is not ‘treatment’ as it does not require a person to do something in the exercise of his skill which is designed to alleviate an injury, relying on Capital Territory Health Commission v Cavanagh[15]. Furthermore, Comcare says that the course was not obtained at the direction of Dr Welberry, even though the Doctor supports Mrs Rope undertaking the course.
[15] [1978] FCA 5.
For these and other reasons, Comcare maintains that the course of study is not within the meaning of ‘medical treatment’.
Under s 4(1) of the 1988 Act, the terms ‘medical treatment’ and ‘therapeutic treatment’ are given meaning –
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
…
therapeutic treatment includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
The scope and meaning of these terms must be construed with primary regard to the text and if necessary to the context of the relevant legislative provisions, including the purpose or policy of the provisions and the ill they seek to address, noting that the legislation is remedial in nature[16].
[16] Comcare v Heffernan [2013] FCA 299 at [21].
Ms Rope’s claim is to be addressed under s 16 –
16(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.
As can be seen, compensation is payable in respect of the cost of the medical treatment obtained, subject to a test of reasonableness in the particular circumstances. Furthermore, the term ‘medical treatment’ in this context refers to treatment obtained in relation to an ‘injury’ (as defined in s 5A) that is suffered by the employee.
Having regard to the definition of ‘medical treatment’ at s 4(1), for a course of treatment to be covered by paragraph (a) of the definition, it must be ‘medical’ treatment (there is no issue that the surgical element is not presently relevant) ‘by, or under the supervision of’ a medical doctor. In this context, the word ‘medical’ may be understood by reference to its meaning in common usage. The Macquarie Dictionary provides the following definitions –
1. having to do with the science or practice of medicine. 2. Curative; medicinal; therapeutic: medical properties. 3. a medical examination.
Thus, ‘medical’ treatment includes treatment that is curative or medicinal, or that is medically therapeutic. These conceptions involve remedial or corrective elements for the purpose of curing an illness, healing a wound, or repairing an injury.
For a course of treatment to come within the scope of paragraph (b) of the definition of ‘medical treatment’ it must possess two important qualities – it must be ‘therapeutic treatment’, and it must be ‘obtained at the direction of’ a medical doctor. It is well established that therapeutic treatment is a purposive activity that extends to include treatment that is palliative or that is for the purpose of alleviating the symptoms of an injury[17].
[17] Bashar v Comcare Australia [2002] FCA 837 at [9]; Comcare v Watson (1997) 46 ALD 481 at 483.
In Thiele v Commonwealth[18], Hill J said “What is contemplated in both pars (a) and (b) of the definition [of ‘medical treatment’] is treatment of the patient in the sense of dealing with him to relieve or cure his illness”[19]. Even though Hill J was dealing with s 37(1) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act), which is cast in different terms to s 16 of the 1988 Act, the parts of the definition of ‘medical treatment’ under s 5(1) of the 1971 Act are the same as those presently in issue under the 1988 Act. There is no difficulty adopting Hill J’s conception of ‘treatment’ under the 1988 Act.
[18] (1990) 11 AAR 376.
[19] Ibid at 381.
Comcare relies on the following passage in Cavanagh’s case, where Nimmo J said –
I think that the key word in paragraph (b) of the definition of "medical treatment" and in the definition of "therapeutic treatment" in s.5(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.[20]
In that case, Mrs Cavanagh sought compensation for the costs of moving to warmer climes during the winter months on the advice of her treating doctor. Nimmo J rejected the claim, observing that –
The relief she hoped for was to come not through the efforts of any person but from being in a warmer locality. In short I think the respondent received nothing more than advice from her doctor and had she acted on it and moved to a warmer climate for the winter months she would not have received any form of treatment from him or any other person at his direction.[21]
[20] Capital Territory Health Commission v Cavanagh [1978] FCA 5 at [7].
[21] Ibid.
As Hill J observed in Thiele’s case, ‘treatment’ for the purposes of paragraph (b) of the definition is not confined to treatment under medical supervision, although an activity “does not become treatment merely because it is advised, prescribed or ordered by a medical practitioner”[22]. This formulation was accepted by Finn J in Comcare v Watson when construing the phrase ‘at the direction of’ in paragraph (b) of the definition, noting that the direction must be to obtain ‘therapeutic treatment’ – “A course of treatment designed to, or aimed at, alleviating the pain caused by an injury or disease is, in my view, properly to be regarded as therapeutic treatment”[23]. In Bashar v Comcare Australia[24], Madgwick J adopted this formulation and said “… in the context of a statute such as this, the notion of ‘therapeutic’ might well also include a further extension, namely, treatment for prophylactic or preventative purposes, that is to say, to prevent the pain, or other effects of an injury from becoming worse or from appearing”[25].
[22] Thiele v Commonwealth (1990) 11 AAR 376 at 382.
[23] Comcare v Watson (1997) 46 ALD 481 at 484.
[24] [2002] FCA 837.
[25] Ibid, at [9].
These cases amply demonstrate the proper conception of ‘treatment’ within the meaning of ‘medical treatment’ and ‘therapeutic treatment’ under s 4(1). In respect of therapeutic treatment, there is no requirement that the treatment must be provided or supervised by a medical practitioner, although it must be obtained at the direction of a legally qualified medical practitioner. Treatment is a purposeful activity designed, or aimed at, curing or alleviating an injury in which, as Nimmo J said, a person does something in the exercise of his or her skill which is designed to alleviate an injury.
It does not follow that any particular therapeutic treatment to be undertaken at the direction of a medical doctor in a course of medical treatment must be imbued with an intrinsic medical quality or feature. The meaning of ‘therapeutic treatment’ is not expressly confined to an activity that is intrinsically medical in nature, although in the usual run of cases therapeutic treatment may have a medical character; the essential requirement is that the treatment must be therapeutic. It is not difficult to conceive of many examples of therapeutic activities or devices that do not have any intrinsic medical quality, and that are not designed to alleviate an injury, that nonetheless may be applied for a medical or therapeutic purpose in the context of treating an injury. There is nothing intrinsically medical about a ball for example, but a ball may be put to a medical or therapeutic purpose when treating an injury, perhaps to improve muscle control or hand to eye coordination. If one considers the example of an exercise or gym program – the program may be one that involves activities commonly undertaken by people in pursuit of fitness, but the quality that renders it therapeutic is the extent to which the program is applied or undertaken for the purpose of treating a particular injury.
Thus, when determining whether an activity is ‘therapeutic treatment', whether the activity has a medical character, or whether it is specifically designed for a therapeutic or other purpose, or it is of broad utility, is beside the point. The sharp focus of the inquiry is whether the activity is obtained, applied or undertaken for a therapeutic purpose in the context of a program designed for the treatment of an injury.The important point is that ‘therapeutic treatment’ is for the purpose or object of treating an injury – the characteristics or qualities of the particular activity must be considered in the context of the purpose to which it is being put:
… its purpose or object must be the treatment of the particular injury in question. 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. Second, because such treatment is purposive, an indicator that a doctor-prescribed activity is intended, relevantly, to be therapeutic will commonly be the adoption of some level of monitoring of it to gauge whether it is appropriately adapted to its purpose or is effective in some degree in realising that purpose.[26]
[26] Comcare v Watson (1997) 46 ALD 481 at 484.
The second essential requirement in respect of ‘therapeutic treatment’ is that it must be obtained ‘at the direction of’ a legally qualified medical practitioner. In Watson’s case, Finn J adopted the “advised, prescribed or ordered” construction Hill J applied in Thiele’s case as the correct meaning to be given to the ‘at the direction of’ formulation – “… these terms having relatively well understood and not greatly dissimilar connotations in the context of doctor-patient communications as to the undertaking of treatment for an injury”[27].
[27] Ibid, at 484.
Thus, in order to determine whether the course is ‘therapeutic treatment’ Mrs Rope obtained ‘at the direction of’ Dr Welberry, there are three questions to answer. Did Mrs Rope undertake the course at the direction of Dr Welberry? Did Dr Welberry intend the course to be therapeutic in the context of her treatment of Mrs Rope’s injury? Was the course undertaken for the purpose of treating or alleviating Mrs Rope’s injury?
As to the first question, the present evidence is that Dr Welberry “recommended to Mrs Rope that she consider undertaking a course of study…” and, later, that is what she did. To my mind, even though it is somewhat ambiguous, Dr Welberry’s recommendation has the quality of advice or prescription and it is within the meaning of ‘at the direction of’ in paragraph (b) of the definition of ‘medical treatment’ at s 4(1). In making this finding, I have considered the whole of Dr Welbery’s evidence, against which no challenge or contrary evidence has been brought. The answer to the first question is Yes.
The second question must also be answered in the affirmative. Dr Welberry clearly stated her intention to monitor Mrs Rope’s “response to this treatment” as “It is hoped that benefits will be seen in terms of less pain, less digestive system disturbance, and improved mental state”[28]. On 20 February 2013, Dr Welberry reported that “such a course would have a therapeutic benefit and would be likely to help her depression, which is an accepted and long standing compensable condition. This would complement other treatment she had been receiving, especially since she no longer had access to psychoneuroimmunology and was intolerant of anti depressants”. Dr Welberry’s evidence was not challenged or contra-indicated by other evidence, and I accept it.
[28] T156 folio 309.
Review of the historical records reveals that Dr Welberry encouraged Mrs Rope to undertake activities involving her mind and structured studies over many years for reasons similar to those stated in the materials I have set out above. It appears, too, that Mrs Rope’s treating psychologist, Ms Swetenham, also recommended that she engage in classes or a course of study as an adjunct to ongoing psychological treatment for her ongoing depression injury and related symptoms, including social isolation. Mrs Rope’s attitude to undertaking study, including her aspirations and her interests, are beside the point of the present enquiry concerning Dr Welberry’s intentions in respect of therapeutic treatment of Mrs Rope’s compensable injuries. Even so, it is quite clear that Mrs Rope views the classes as therapeutic treatment for her injury.
As to the third question, whether the course was undertaken for the purpose of treating Mrs Rope’s injury, the evidence all goes one way. Dr Welberry’s evidence on this point is unambiguous. She stated that the purpose of Mrs Rope undertaking the course is “to assist in treating her depression, to increase her self esteem and to give her a sense of purpose. In addition it would help to prevent cognitive decline…”[29] - the course is “a form of treatment for her depression and social isolation, which is related to her compensable condition”[30].
[29] T129 folio 267.
[30] T140 folio 284.
I have carefully considered the nature and the content of the Practical Philosophy classes and the ‘course’ in which Mrs Rope enrolled. I have some difficulty with the conception of the classes as a course for the simple reason that the course appears to lack an end point, or the usual markers whereby progress may be measured or ascertained. Nevertheless, it appears that the content of the course is based on the study and practice of mindfulness, as explained by Dr Grohmann. On his evidence, it appears that the study of mindfulness, or “practical philosophy”, and the practices it involves may well be compatible with the therapeutic purposes and objects described by Dr Welberry and Ms Swetenham in relation to treating or alleviating Mrs Rope’s depression injury and preventing the effects or symptoms of the injury from becoming worse. Dr Grohmann’s qualifications are not apparent on the materials before me. Nonetheless, it appears from his descriptions that ‘classes’ involve the practice of group meditation – “the practice of sitting mindfulness meditation” – and elements of group discussion that are consistent with the objects described by Dr Welberry in treating aspects of Mrs Rope’s depression and related social isolation. I accept that these features of the ‘classes’ may be applied for a therapeutic purpose in treating Mrs Rope’s injury, as intended by Dr Welberry and Ms Swetenham.
The circumstances of Mrs Rope’s participation in this course are consistent with the therapeutic purposes described by Dr Welberry in respect of treating Mrs Rope’s depression injury. It appears that Mrs Rope is enrolled in the course on a term by term basis. As I understand the arrangement (and the course), she will not be required to sit any examinations or to undergo any assessments, and she will not obtain a qualification on completion. By her own account, the ‘course’ has no fixed duration or length[31]. Dr Welberry described the goals of Mrs Rope undertaking the course in the following way - “The aim of this treatment is not to get her back to work, but to alleviate her depression. In the long run, this may result in satisfactory self management and a reduced need for other forms of treatment”[32]. It appears that the nature of Mrs Rope’s enrolment permits Dr Welberry and Ms Swetenham to periodically assess the progress of the treatment, and its effects on the symptoms of her injury (if any). In time, if the treatment is not having a desirable or demonstrable effect, one might expect that it would be discontinued.
[31] Letter dated 28 September 2012.
[32] T140 folio 284
These circumstances are to be distinguished from those found in Re Dunkerley and Comcare[33], in which Ms Dunkerley was undertaking a university degree without clear evidence that doing so was therapeutic treatment obtained at the direction of her treating doctor for the purpose of treating an injury.
[33] [2010] AATA 417.
Even though there are factual differences, Mrs Rope’s circumstances in respect of the Practical Philosophy course are more akin to those found in Holt v Comcare[34], in which Mr Holt undertook a Buddhist meditation retreat at the direction of his treating doctor. In that case, the Tribunal had no difficulty finding that the Buddhist meditation retreat was within the meaning of ‘therapeutic treatment’ (and thus ‘medical treatment’) for the purposes of s 16 of the 1988 Act.
[34] [2006] AATA 1059.
Comcare’s proposition that the course simply offers Mrs Rope a distraction from her symptoms is without merit. While distraction from symptoms of pain may be one aspect of the purpose of undertaking the course, on Dr Welberry’s evidence there are other purposes relating to the treatment of depression. When Dr Welberry’s evidence is properly considered, it is not correct to represent the purposes of Mrs Rope undertaking the course as a form of distraction, or even as merely a social activity. To do so would be to misconstrue the clear therapeutic purpose Dr Welberry has expressed in relation to treatment of Mrs Rope’s depression.
Comcare places reliance on a passage from Re Heffernan and Comcare[35], in which the Tribunal said that “… vague evidence of some form of unspecified amelioration of ‘psychological decay’ is insufficient to establish a ‘therapeutic’ effect for the purposes of paragraph (h) of the definition of ‘medical treatment’ in s4(1)”[36]. Even though this decision was upset in Comcare v Heffernan[37], the Tribunal’s reasoning on this point was not found to be in error. Nevertheless, the Tribunal was addressing paragraph (h) of the definition of ‘medical treatment’, particularly with respect to the meaning of ‘curative apparatus’. The matter before the Tribunal in Heffernan’s case concerned the modification of a motor vehicle and whether a motor vehicle could fit within the meaning of a ‘curative apparatus’ in the context of ‘medical treatment’. This does not assist Comcare’s case and must be distinguished.
[35] [2012] AATA 371.
[36] Ibid. at [24].
[37] [2013] FCA 299.
Furthermore, Comcare’s submission that Mrs Rope engaging in the Practical Philosophy course is simply one of a range of activities that may achieve the same result in terms of alleviating symptoms, such as a book club or a study group does not advance the matter. The existence of alternative treatment options may go to the reasonableness of a person obtaining a particular treatment, but the proposition that one form of activity should be discounted as treatment simply because other activity options exist is far from compelling.
So, too, is the proposition that Dr Welberry’s evidence supporting Mrs Rope’s participation in the course is “unspecific and nebulous” even though “it may constitute reasonable advice”. To my mind, Dr Welberry’s recommendation that Mrs Rope should consider undertaking a course of study involving mindfulness and her reasons for making it are very far from unspecific and nebulous – her reasons for doing so can plainly be seen and understood. Even though the selection of a particular course of study appears to have been left to Mrs Rope, it does not follow that Dr Welberry would have considered any other course to be suitable in the therapeutic frame. Dr Welberry’s evidence is that her recommendation was that Mrs Rope should undertake a course of study that involved mindfulness. It is unlikely that a book club or the other activities raised would meet this description.
In conclusion on this point, I am reasonably satisfied that the classes for the study and practice of mindfulness Mrs Rope enrolled in were obtained at the direction of Dr Welberry for therapeutic purposes relating to the treatment of her depression injury. This is within the meaning of paragraph (b) of the definition of ‘medical treatment’ set out in s 4(1).
Is the course medical treatment in relation to an injury that it was reasonable for Mrs Rope to obtain in the circumstances?
Comcare asserts that it was not reasonable for Mrs Rope to obtain the course as medical treatment in the circumstances. It appears that this assertion is raised, albeit briefly, on the basis that the course is not part of a plan for the permanent improvement of Mrs Rope’s health. Reliance is placed on Re Chowdhary and Comcare[38]. Comcare says that evidence that the course has no fixed length and that study may continue indefinitely stands against it being part of a plan of treatment.
[38] (1998) AATA 13003.
Comcare points to the relative assessment of costs and benefits of treatment options, including no treatment at all, that must be undertaken when considering the test of reasonableness[39]. In Comcare’s submission, Mrs Rope is receiving extensive therapeutic treatment for the injury, including psychological counselling, psychoneuroimmunology treatment, massage therapy, specialist reviews, household help and pharmaceutical treatments. Comcare says that Mrs Rope’s participation in the Practical Philosophy course has not, to date, assisted in reducing her reliance on these therapies and treatments. In these circumstances, in Comcare’s submission, it is not reasonable to approve the course of study.
[39] Comcare v Rope (2004) 135 FCR 443 at 448.
The proposition that a plan for the permanent improvement of an injury is required in order to find that a particular form of medical treatment is reasonable for an injured employee to obtain lacks merit. Medical treatment and therapeutic treatment, for the purposes of the 1988 Act, consistent with the definition of those terms in s 4(1), may include treatment to alleviate the symptoms of an injury and palliative or preventative treatments[40]. Treatments of that kind are unlikely to appear in a plan for the permanent improvement of an injury. Some injuries cannot be permanently improved, and I do not accept that it would not be reasonable for a permanently injured employee to obtain palliative or preventative medical treatment on the basis that the treatment was not part of a plan for permanent improvement. It is not established that Mrs Rope’s injury is not able to be improved – Dr Welberry and Ms Swetenham agree that the purpose in recommending this form of treatment is to achieve some improvement in Mrs Rope’s conditions, such that other forms of treatment may be reduced.
[40] Bashar v Comcare Australia [2002] FCA 837 at [9].
I note in passing that Dr Welberry’s recommendation for Mrs Rope to undertake a course of study involving mindfulness is entirely consistent with the treatment plans prepared by Ms Swetenham and Ms Just.
As to the second limb of this argument concerning the unspecified duration of the Practical Philosophy course, as I have said, the term by term enrolment may serve to facilitate periodic review of Mrs Rope’s progress under this form of treatment, and the effect of the treatment on the symptoms of the injury being treated. This does not render it unreasonable for Mrs Rope to obtain the treatment in the circumstances. The important point here is not the duration of the course, but the manner of Mrs Rope’s participation in it. It appears to me that Dr Welberry and Ms Swetenham see therapeutic benefit in Mrs Rope attending classes, rather than placing significance on her enrolment in a formal course in the traditional sense.
Finally, assessment of the relative costs and benefits of treatment options, including no treatment, or not undertaking a particular treatment, is a matter to be addressed by evidence. There is no general answer to this assessment of relativities; each case and each option must be assessed on the evidence and in the particular circumstances[41].
[41] Comcare v Holt [2007] FCA 405 at [25]-[26].
On the materials before me, there is but scant evidence addressing the effectiveness or the benefits Mrs Rope is obtaining from the various treatment modalities in respect of depression and pain management. These include massage, psychological counselling and pharmacological treatments, although it appears that she does not tolerate anti-depressant medication.
Household help is not a medical treatment option that can be considered in the assessment of relative costs and benefits of treatment options.
There is no probative evidence concerning any change in the level or rate of Mrs Rope’s medical treatments in respect of her depression and other injuries over recent years. There is but little evidence addressing the benefits she has obtained from attending the Practical Philosophy classes since commencing in term 2 of 2012, although this has been ongoing now for a number of months.
While it is not entirely clear, it is likely that Ms Just ceased providing psychoneuroimmunology treatment prior to Mrs Rope commencing the course. It appears that no replacement for this treatment has been identified or obtained. Whether this change had any effect on the benefits or costs of other treatments she was obtaining is not established. Dr Welberry considered that the Practical Philosophy course may be beneficial for Mrs Rope in light of this change in her treatment.
The proposition that activities, such as a book club, or an informal study group may provide an alternative treatment modalities to the medical treatment in the form of classes for the study and practice of mindfulness as recommended by Dr Welberry may shortly be dealt with. There is no evidence that activities of the kind posited would provide therapeutical treatment for Mrs Rope’s depression injury. It is possible that such activities might provide some therapeutic benefit in alleviating the symptoms of depression, including social isolation; but this is not established by evidence. As I have said, there is little evidence of the benefits Mrs Rope obtains from the study and practice of mindfulness, which appears to be central to the Practical Philosophy course and the related treatment recommended by Dr Welberry. Dr Welberry and Ms Swetenham consider that this form of treatment may be beneficial for Mrs Rope. Whether they are correct will be a matter for periodic clinical review, as indicated by Dr Welberry. From this distance, it appears that the benefits of the mindfulness classes may include the learning of certain techniques in relation to meditation, thinking and self-awareness, which would not be obtained from the other kinds of activities Comcare has pointed to.
The cost of Mrs Rope obtaining classes for the study and practice of mindfulness as medical treatment is $110 per term, plus the cost of travelling to and from classes on days when Mrs Rope is not well enough to drive herself, or to be driven by her husband. The precise quantum of such costs is not clearly established – compensation for such travel costs must be claimed and determined on the merits. On Mrs Rope’s evidence, the cost of a taxi fare to attend a class is in the vicinity of $100. I accept that the cost of her driving herself, or being driven by her husband, to attend the classes would be a substantially reduced amount.
The costs of other treatment options are not apparent on the present materials, although the cost of Mrs Rope not undertaking the Practical Philosophy treatment would be nil. What effect this would have on the symptoms of her injury is not clear, although it may be inferred from the evidence of Dr Welberry and Ms Swetenham that Mrs Rope may experience increased symptoms, especially as anti-depressant medication is not an option.
Weighing these various factors and considerations, it appears to me that it is reasonable for Mrs Rope to take the advice of her treating doctor and it is reasonable for her to obtain classes for the study and practice of mindfulness as medical treatment in the circumstances, at least for a time and subject to periodic clinical review. Furthermore, I am reasonably satisfied that this form of treatment was treatment in relation to Mrs Rope’s depression injury, as well as in relation to her pain symptomatology consequent to her physical injuries.
It follows that she is entitled to compensation for the cost of obtaining classes for the study and practice of mindfulness as medical treatment under s 16(1) of the 1988 Act.
Did Mrs Rope reasonably incur expenditure ‘making a necessary journey for the purpose of obtaining that medical treatment’?
Unfortunately, this question has not squarely been addressed by the parties and there is not sufficient evidence before me to address it.
The question of reasonableness requires an objective assessment. The precise issue concerns the reasonableness of incurring travel expenses. This will require an assessment of the means of travel used – whether Mrs Rope used a taxi service for example – and whether the attendant costs were reasonably incurred in the particular circumstances. These matters must be determined, subject to claim, on the particular merits.
It follows that this matter will be remitted to Comcare to determine the amount of compensation, if any, that may be payable to Mrs Rope in respect of travel expenses she has incurred travelling from her rural property to Canberra for the purposes of obtaining medical treatment in the form of mindfulness classes.
Conclusion
Mrs Rope has obtained mindfulness classes as a form of therapeutic treatment at the direction of her treating general practitioner. This is within the meaning of ‘medical treatment’ under s 4(1) and for the purposes of s 16 of the 1988 Act.
The decision under review will be set aside. Mrs Rope is entitled to compensation in respect of the costs of attending mindfulness classes as directed by her treating doctor and supported by her psychologist, being medical treatment that it is reasonable for her to obtain in relation to her accepted injury, subject to claim and to periodic review.
Calculation of the amount of compensation that may be payable to Mrs Rope in respect of travel costs she has incurred in order to obtain this treatment is remitted to Comcare.
The parties have 14 days in which to file submissions as to orders for costs.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member .....................[sgd].......................................
Associate
Dated 8 May 2013
Date of hearing on the papers 15 April 2013 Applicant In person Advocate for the Respondent Mr A. Dunlevey Solicitors for the Respondent Australian Government Solicitor
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