Holt and Comcare

[2006] AATA 1059

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1059

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D2005/29

GENERAL ADMINISTRATIVE DIVISION		)
Re		ASHLEY CRAIG HOLT

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date8 December 2006

PlaceBrisbane (Heard in Alice Springs)

Decision

In accordance with s 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal:

1.      Sets aside the decision of the respondent dated 22 August 2005;

2.      In substitution decides that the respondent is liable to pay the reasonable costs of the applicant’s attendance at a Buddhist meditation retreat at the Chenrezig Institute;

3.      Orders the respondent to pay the applicant’s costs, if any, of and incidental to the proceedings.

................Signed.............

Deputy President

CATCHWORDS

COMPENSATION – injured in the course of employment – acceptance of liability for condition suffered – request for attendance at a Buddhist meditation retreat – meaning of “treatment that was reasonable in the circumstances” – evidentiary onus

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14(1), 16(1)

Jorgensen and the Commonwealth (1990) 23 ALD 321

Comcare v Rope (2004) 135 FCR 443

REASONS FOR DECISION

8 December 2006     Deputy President P E Hack SC            

Introduction

1.The applicant, Ashley Craig Holt, was formerly employed in a Commonwealth agency. The respondent, Comcare, has accepted liability to compensate the applicant in respect of an injury suffered by him in the course of that employment. The respondent accepts that the injury was sustained on 17 September 2002.

2.The question I have to decide is whether the applicant’s attendance at a Buddhist meditation retreat is compensable medical treatment within the ambit of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).

Background

3.The respondent has accepted liability to pay compensation for an injury described by it as “generalised anxiety disorder and adjustment reaction with brief depressive reaction”. The applicant has been treated for this condition by his general practitioner Dr Wendy Zerk for a number of years.

4.In August 2005 Dr Zerk requested the approval of the respondent for the applicant’s attendance at a Buddhist meditation retreat. It seems to have been assumed by the respondent that what was being referred to was a retreat offered by the Chenrezig Institute[1] at Eudlo in the hinterland of Queensland’s Sunshine Coast however Dr Zerk’s letter did not nominate where the retreat was to be undertaken.

[1]           Described in its letterhead as “a Centre for Buddhist Study, Meditation, Retreat & Practice”.

5.In the course of his evidence the applicant told me that his recollection was that the retreat may have been offered by another institution in Victoria. In any event nothing seems to turn on the question of the precise identity of the institution offering the retreat.

6.On 22 August 2005 a delegate of the respondent denied liability on the basis that attendance at the retreat did not constitute “therapeutic treatment” as that expression is used in the Act. The decision was affirmed on reconsideration.

7.The applicant now seeks a review by this Tribunal of the decision to refuse compensation for the cost of the treatment.

Statutory setting

8.By virtue of s 14(1) of the Act Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Injury is defined in terms that include conditions of the mind.

9.Liability to pay an employee’s costs of medical treatment is set out in s 16(1) of the Act in these terms:

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.

In turn, the expression “medical treatment” is defined by s 4 of the Act in a variety of ways including, relevantly, as:

therapeutic treatment obtained at the direction of a legally qualified medical practitioner.

10.In its decision, and at an earlier time in the proceedings, the respondent put in issue the question of whether attendance at the retreat could constitute medical treatment as defined. I was informed at the outset of the hearing by Ms Forde of counsel, who appeared for the respondent, that that issue was not being pressed although it was not formally conceded.

11.The sole issue, I was informed, was whether the treatment was treatment “that is reasonable for the employee to obtain in the circumstances”. In light of this I proceed upon the basis that attendance at the retreat does constitute medical treatment, that is, to assume, rather than decide, that issue.

Reasonable treatment

12.There is surprisingly little learning on the question of what constitutes treatment that was reasonable. In Jorgensen and the Commonwealth[2] Gray J, sitting as a presidential member of the Tribunal, was called upon to consider whether in vitro fertilisation, following the removal of the applicant’s fallopian tubes as a consequence of a compensable injury, constituted treatment that was reasonable. The argument advanced for the respondent was that, in determining if the treatment was reasonable, regard was to be had to subjective features of the applicant’s life – her age, economic circumstances, marital stability and the like. His Honour said:[3]

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. A reference to the circumstances raise 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.

[2] (1990) 23 ALD 321.

[3]           At p. 325.

13.The issue arose again before Stone J in Comcare v Rope,[4] an appeal from a decision of the Tribunal. Mrs Rope had been injured in compensable circumstances and had received psychoneurimmunology (PNI) treatment from a psychotherapist in Canberra. That practitioner subsequently moved her practice to Townsville and Mrs Rope applied to Comcare to cover the costs of her travel to Townsville as there was no equivalent treatment available in Canberra. Comcare had refused the claim but that decision was set aside by the Tribunal on the basis that it was “reasonable” for Mrs Rope to obtain PNI treatment and be reimbursed the cost of travelling to Townsville to obtain it. Comcare appealed to the Federal Court.

[4] (2004) 135 FCR 443.

14.Stone J adverted to the dearth of authority on the question and pointed out that the issue is frequently subsumed into the question of whether the treatment in issue was “medical treatment”. Her Honour noted that the comments of Gray J that I have set out above had to be understood in the context with which his Honour was dealing. Her Honour then continued:[5]

I accept, however, that the reference in s 16(1) to treatment being “reasonable to obtain in the circumstances” is a clear indication that, in this case, the Tribunal was required to engage in a costs/benefit analysis in relation to PNI treatment. The Tribunal needed, among other things, to weigh the benefit of PNI treatment against the cost of obtaining it (given that the treatment was available only in Townsville), taking into account any other treatment available to Mrs Rope.

[5] At p. 448, par. [17].

The evidence

15.Before undertaking an analysis of this nature it is as well to set out the evidence that seems to me to touch upon this point.

16.The applicant is a practising Buddhist. He has been engaging in meditation for some 30 years and has attended approximately 40 meditation training sessions over the years. He has previously had similar treatment (paid for by the respondent) in November 2002, September 2003, March 2004, November 2004 and April 2005. He meditates on a daily basis and has a room at his home generally available for this purpose.

17.He said that attendance at this particular retreat provides him with the opportunity to practice intensively in a supportive environment. The benefit of the retreat can last upwards of 11 months. He notices that his stress levels build up as time elapses from the retreat, he loses focus and loses his quality of life. Importantly, given the respondent’s case, he said that it is the supportive environment that makes the difference. Using the analogy of taking medicine he described going to the retreat as “increasing the dosage”.

18.I should observe that I had no reason to doubt the accuracy and reliability of the evidence of the applicant and I accept what he has said.

19.There is no doubt that his treating general practitioner, Dr Zerk, regards attendance at the retreat as having a therapeutic benefit upon him. By way of example, she said in May 2005:

Mr Holt has gained significant benefit from attending the retreat. He is always calmer and more positive, and this time also has a more positive approach to his future.

When, in August 2005, she requested that approval be given Dr Zerk said:

I have noted that he always returns from these retreats refreshed, motivated, keen to work, with reduced anxiety symptoms (palpitations, sleep disturbance and agitation).

And later in that same month, in support of her request for his attendance at the retreat, Dr Zerk said:

I can state from my own observations that Mr Holt is getting benefits from these treatments … I note that in particular after attending Buddhist retreats, Mr Holt comes back refreshed, relaxed, less stressed and “bogged down” with the problems relating to his claim, and ready to find employment. The benefit gained from this is clear, but difficult to sustain unless he can see a brighter future.

20.It was common ground at the hearing that the approximate costs of attending the Chenrezig Institute course, including air travel from Alice Springs to Queensland was in the order of $1,650.00.

21.The argument for the respondent was that the treatment was not treatment that was reasonable in the circumstances. The primary argument was that the applicant could, in effect, replicate the course in his own home. Ms Forde relied upon these matters in particular:

·the fact the applicant had already attended five similar retreats;

·the fact of his having had 30 years experience in meditation including some 40 earlier training sessions;

·the fact of him having made contacts with leaders at the Chenrezig Institute who could advise him at home;

·the fact of his having a supportive partner and room available at his house to undertake the meditation.

22.Ms Forde also advanced a further argument that there were other forms of meditation available in Alice Springs.

23.I am, with respect, unable to accept either of these arguments. And I am unable to accept them for essentially the same reason – that there is an inadequate evidential foundation for them or either of them.

24.The first argument has a superficial appeal. In the circumstances relied upon by the respondent there is an attraction to the notion that someone with the applicant’s background and experience ought be able to replicate attendance at the retreat in his own home, particularly given the costs involved. But the argument overlooks the fact that there is evidence of demonstrated therapeutic benefit in attendance at the Chenrezig Institute. The applicant has an accepted condition of generalized anxiety disorder and adjustment reaction. The evidence, some of which I have set out above, shows that there is a demonstrable therapeutic benefit from attendance at the Chenrezig Institute. But I have no evidence that suggests that a similar (or, indeed, any) benefit would flow from the applicant seeking to replicate the treatment in his own home. In that regard I note that the respondent did not rely on the report of Dr George at the hearing.

25.I am accordingly unable to accept that the “home meditation” alternative propounded by the respondent creates a therapeutic benefit that is comparable with attendance at the Chenrezig Institute.

26.The respondent’s further argument is founded entirely upon an extract from an internet search of the Australian Buddhist Directory. That suggests that there is, not surprisingly, a Buddhist Society of the Northern Territory. The reference relied upon is this:

Other activities: Intensive meditation sessions (retreats) are organised on a monthly basis. The centre also tries to arrange visits in the region including: Jabiru, Katherine and Alice Springs.

27.Ms Forde was at pains to point out that the respondent’s argument was not that this organisation arranged retreats in Alice Springs. The argument was that the applicant, despite having been sent this material by the respondent’s solicitors some months ago, was obliged to investigate the possibilities of undertaking a retreat through this organisation.

28.I am unable to accept this argument either. There is no concept of persuasive onus in proceedings in this Tribunal but there is certainly an evidentiary onus upon a party who wishes to argue that one treatment option is unreasonable when compared to another to properly evidence the suggested alternative. I do not consider the passage I have set out to provide a sound evidentiary foundation from which I could conclude that the Northern Territory Buddhist Society offers a more reasonable alternative treatment that would assist the applicant with his accepted condition.

29.In the result I do not accept either of the respondent’s arguments. Against a background where the medical evidence is that attendance at the retreat in the past has a demonstrated therapeutic benefit, where prior attendances have been funded by the respondent and where no equally efficacious alternative at a lower cost is suggested, I conclude that attendance by the applicant at the Buddhist retreat does amount to medical treatment that it was reasonable for the applicant to obtain.

30.I would set aside the respondent’s decision and substitute a decision that the respondent is liable to pay the reasonable costs of the applicant’s attendance at a Buddhist meditation retreat at the Chenrezig Institute. It seems unlikely that the applicant has incurred any costs but I will make an order for costs in his favour against the possibility that he has.

31.I should add, against the possibility that this might be thought to open the floodgates, that I regard this decision as turning very much upon its own facts and, in particular, evidentiary deficits. As it seems to me if the respondent wishes to argue that a particular treatment is unreasonable, there is an obligation upon it to demonstrate an alternative that has equivalent therapeutic benefit but at a lower cost. That, in my view, was not done here.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ...................Signed...................................................
  Leisa Pendle, Associate

Date of Hearing  20 November 2006
Date of Decision  8 December 2006
Applicant in person  
Counsel for the Respondent     Ms E Forde
Solicitor for the Respondent     Australian Government Solicitor