Fittock and Comcare (Compensation) - [2021] AATA 3628

Fittock and Comcare (Compensation) [2021] AATA 3628 (11 October 2021)
Division:GENERAL DIVISION
File Number:2021/0851
Re:Kylie Fittock
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:11 October 2021
Place:Brisbane

The Tribunal affirms the decision under review.
....................[SGD]..........................
Member D Mitchell

CATCHWORD
COMPENSATION – accepted injury – aggravation of adjustment disorder – claim for medical expenses relating to gastric sleeve surgery – whether medical treatment was obtained in relation to accepted injury – whether medical treatment was reasonable to obtain in the circumstances – no claim for liability for obesity or diabetes or aggravation thereof – relevant treatment not in related to accepted injury – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Howes v Comcare [2016] FCA 1521
Jorgensen and Commonwealth of Australia [1990] AATA 129; (1990) 23 ALD 321
Lees v Comcare [1999] FCA 753
REASONS FOR DECISION
Member D Mitchell
11 October 2021
INTRODUCTION

Ms Kylie Fittock (the Applicant) is seeking review of a decision of the Respondent dated

8 February 2021.[1]
[1] Exhibit 1, T Documents, T1.1, pages 6-10, Reviewable Decision.
The reviewable decision[2] affirmed a determination dated 10 December 2020[3] to deny liability under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for sleeve gastrectomy surgery (gastric sleeve surgery) and associated expenses on the basis that the medical treatment was found not to be in relation to the accepted injury and was consequently not reasonable to obtain in the circumstances.[4]
[2]     Exhibit 1, T Documents, T1.1, pages 6-10, Reviewable Decision.
[3]     Exhibit 1, T Documents, T23.2, pages 164-165, Determination Decision.
[4]     Exhibit 1, T Documents, T1.1, pages 6-10, Reviewable Decision; T1.2, pages 11-14, Statement of Reasons.
CLAIMS HISTORY
Since 2003, the Applicant has been employed by Services Australia as an APS4 Service Officer.[5]
[5] Exhibit 1, T Documents, T5, page 40, Email – Allianz to Comcare attaching early contact reference sheet; Exhibit 1, T Documents, T5, pages 52-53, Report – Dr Mary Ellen O’Hare (Consultant Psychiatrist).
On 16 July 2018, the Applicant completed and signed a claim for workers’ compensation in relation to a condition described as being a depressive illness.[6]
[6] Exhibit 1, T Documents, T4, pages 33-38, Worker’s Compensation Claim.1.1, pages 6-10, Reviewable Decision.
On 26 September 2018, the Applicant’s claim for workers’ compensation was denied.[7] That determination was affirmed by the Respondent on 1 November 2018.[8]
[7] Exhibit 1, T Documents, T8.2, page 79, Determination: deny liability for adjustment disorder with mixed anxiety and depressed mood under section 14.
[8] Exhibit 1, T Documents, T13, page 114, Decision of the Administrative Appeals Tribunal accepting liability for an aggravation of an adjustment disorder.
The Applicant sought review by the Tribunal in relation to that decision. On

16 October 2019, at the request and consent of the parties, the Tribunal set aside the decision of 1 November 2018 and in substitution decided that the Respondent was liable to pay compensation under section 14 of the SRC Act for an aggravation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fittock and Comcare (Compensation)

Details

AGLC: Fittock and Comcare (Compensation) [2021] AATA 3628
Case: [2021] AATA 3628
Decision Date: 11 October 2021

CaseChat Overview and Summary

This matter concerned an appeal to the Tribunal regarding a claim for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The applicant sought compensation for medical expenses related to gastric sleeve surgery, which the respondent, Comcare, had denied. The applicant's accepted condition was an aggravation of an adjustment disorder, a psychological condition.

The core legal issues before the Tribunal were whether the gastric sleeve surgery constituted "medical treatment" for the purposes of the SRC Act, whether it was obtained in relation to the applicant's accepted psychological condition, and if so, whether it was reasonable for the applicant to obtain such treatment in the circumstances. The applicant contended that while the surgery was not directly for her psychological condition, the stress and events leading to her accepted condition had exacerbated her diabetes, and the surgery was intended to alleviate this.

The Tribunal found that the gastric sleeve surgery did constitute medical treatment under the SRC Act. However, it determined that there was no medical evidence to establish a link between the surgery and the applicant's accepted psychological condition. While acknowledging that stress can impact physical health, the Tribunal noted that the applicant had not sought compensation for her diabetes, and its jurisdiction was limited to the accepted condition. Relying on expert medical opinion, the Tribunal concluded that gastric sleeve surgery is for managing obesity-related conditions like diabetes, but not for treating an adjustment disorder. Consequently, the Tribunal found that the medical treatment was not obtained in relation to the accepted condition.

As the Tribunal found that the gastric sleeve surgery was not medical treatment obtained in relation to the accepted condition, it followed that the treatment could not be considered reasonable in the circumstances of the accepted condition. Therefore, the Tribunal concluded that compensation was not payable under section 16 of the SRC Act for the claimed medical expenses, and the decision under review was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In Jorgensen and Commonwealth of Australia [1990] AATA 129; (1990) 23 ALD 321, Presidential Member Gray J, at [12] in relation to the considerations that go to whether treatment is reasonable to obtain in the circumstances provided:……In my view, the question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical treatment at all, would have been better for a person suffering from particular injury The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation. Were it to be otherwise, decision-makers would be faced with questions of great difficulty, such as whether the appearance of a particular person prior to suffering injury was such as to make it unreasonable to consider cosmetic surgery, or whether repair of a particular injury was appropriate only for persons in some occupations or classes or geographical areas, but not for others.EVIDENCE AND CONTENTIONSMedical evidence The medical evidence before the Tribunal includes general practitioner notes and reports from 2013 up until to at least 2018 and makes reference to the Applicant’s fluctuating weight, the monitoring of blood sugar levels and other health related concerns.[20] None of these points are disputed by the Applicant and as such the Tribunal does not consider it necessary to restate this information here beyond the extent that it is reproduced in the Respondent’s contentions set out at paragraph 35 below.[20] Exhibit 1, T Documents, T24, pages 169-251, Clinical records – Smart Clinics Woree; T25, pages 252-305, Clinical records – Cairns Doctors; Exhibit 3, Hearing Book, R6, pages 39-308, Abbott Medical Centre records; A4, page 323, Email from the Applicant attachment email from Dr Matthew Warburton dated 18 February 2021; and A5, pages 324-327, Email from the Applicant, attaching letter from Dr Mathew Warburton dated 20 February 2018. The medical evidence also includes the specialist reports and notes of Dr Woolven,[21] a number of reports by specialists and notes by her general practitioners in relation to the Applicant’s mental health.[21] Exhibit 2, Supplementary T Documents, ST1, pages 1-53, Clinical notes and records of Dr Ben Woolven. The psychiatrist reports provided between 2018 and 2021 make various reference to the Applicant’s diabetes, obesity and gastric sleeve surgery, however they are primarily focused on her mental health and the treatment of the subsequent accepted condition. The reports of Dr Mary-Ellen O’Hare,[22] Dr Luke Murphy,[23] Dr Alexandra Simpson,[24] [22] Exhibit 1, T Documents, T6, pages 42-61, Report of Dr Mary-Ellen O’Hare and T12, pages 103-113, Supplementary Report of Dr Mary-Ellen O’Hare.[23] Exhibit 1, T Documents, T9, pages 81-90, Report of Dr Luke Murphy.[24] Exhibit 1, T Documents, T10, pages 91-94, Report of Dr Alexandra Simpson and Exhibit 3, Hearing Book, R5, pages 17-38, Clinical notes of Dr Alexandra Simpson.[25] Exhibit 1, T Documents, T11, pages 95-102, Report of Dr Alistair (Sandy) Macleod.[26] Exhibit 1, T Documents, T19, pages 136-148, Report of Dr Derek Lovell; Exhibit 3, Hearing Book, R2, pages 6-11, Report of Dr Derek Lovell; R4, pages 15-16, Report of Dr Derek Lovell.Dr Alistair Macleod[25] and Dr Derek Lovell,[26] all of whom are psychiatrists made reference to the treatment of the Applicant’s accepted condition including anti-depressant medication, psychological and psychiatric treatment.

Decision

Reasons for decision

The Tribunal forms no view in relation to the reasonableness of the gastric sleeve surgery in relation to the Applicant’s diabetes condition in the absence of any evidence from an endocrinologist. However, in making the finding that the gastric sleeve surgery was not medical treatment obtained in relation to the accepted condition, it follows that as a whole the treatment could not be said to be reasonable for the Applicant to obtain in the circumstances of the accepted condition. CONCLUSION The Tribunal finds that compensation is not payable pursuant to section 16 of the SRC Act in relation to the Applicant’s claimed medical expenses relating to gastric sleeve surgery on the basis that, that medical treatment was not obtained in relation to the accepted condition. Accordingly, the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The Respondent contended that the reviewable decision should be affirmed on the basis that the Applicant is not entitled to compensation under section 16 of the SRC Act for the claimed medical expenses relating to the gastric sleeve surgery in relation to her accepted psychological condition.[43][43] Exhibit 3, Hearing Book, R7, page 315, paragraphs 40-41, Amended Statement of Issues, Facts and Contentions of the Respondent.CONSIDERATION The Tribunal notes that the Applicant’s accepted condition is referred to as being an aggravation of an adjustment disorder. There was no dispute that this accepted condition relates to a psychological condition. The Applicant’s starting position at Hearing was that she acknowledged and accepted that the gastric sleeve surgery was not treatment for the accepted condition but was rather received to alleviate her worsening diabetes. The Applicant made it clear that the gastric sleeve surgery was not treatment provided in relation to depression or anxiety. The connection that the Applicant is attempting to make is that the accepted condition and the events that led to it are the cause of her worsening diabetes. The Tribunal notes that the Applicant has not made an application seeking compensation in relation to her diabetes condition of which she contended was made worse as a result of her accepted condition. The jurisdiction of the Tribunal in this matter extends only as far as considering the Applicant’s entitlement to compensation in relation to the accepted condition. The Tribunal is unable to make a decision in relation to liability under section 14 of the SRC Act for the Applicants diabetes or obesity conditions.[44] [44] As per Lees v Comcare [1999] FCA 753. In considering whether compensation is payable pursuant to section 16 of the SRC Act in respect of the claimed medical expenses, the Tribunal must consider whether the treatment to which the claimed medical expenses relate constitute medical treatment for the purposes of the SRC Act, if so whether it was obtained in relation to the accepted injury and if so whether it was reasonable for the Applicant to obtain in the circumstances. The Tribunal finds that the claimed medical expenses constitute medical treatment for the purposes of the SRC Act. This finding is not contentious. The first point of contention is whether that medical treatment was obtained in relation to the accepted injury. While the Tribunal acknowledges and accepts the Applicant’s contentions that stress can have many different effects on a person’s physical health as well as their psychological health,[45] there is no medical evidence before the Tribunal that indicates that the obtained gastric sleeve surgery in any way related to the treatment of the Applicant’s accepted condition.[45] Exhibit 3, Hearing Book, A6, pages 328-331, Statement of the Applicant and Transcript, page 8-9. Dr Lovell in his report dated 27 May 2021 (as reproduced at paragraph 24 above) outlined the treatment for the accepted condition and expressed the opinion that weight loss surgery assists in the management of obesity that worsens hypertension, arthritis and diabetes, however is not treatment for an adjustment disorder. At Hearing Dr Lovell confirmed that he still held that opinion.