Lockwood and Telstra Corporation Limited (Compensation)
[2016] AATA 1053
•21 December 2016
Lockwood and Telstra Corporation Limited (Compensation) [2016] AATA 1053 (21 December 2016)
Division
GENERAL DIVISION
File Number
2016/2927
Re
Raymond Lockwood
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Senior Member P Britten-Jones
Date 21 December 2016 Place Adelaide The decision under review is affirmed
......................[Sgd]..................................................
Senior Member P Britten-Jones
CATCHWORDS
COMPENSATION - liability for medical expenses - definition of medical treatment - consideration of the purpose for which a medical report was provided - obtaining a medical report for medico-legal purposes is not "medical treatment" - decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 14 & 16
CASES
Capital Territory Health Commission v Cavanagh FCA 3 March 1978, unreported
Comcare v O'Brien (1997) 49 ALD 293
REASONS FOR DECISION
Senior Member P Britten-Jones
21 December 2016
INTRODUCTION
On 30 September 2014, the applicant was examined by Mr Tom Frayne, an ear nose and throat surgeon. An account for that consultation and a subsequent report was rendered to the applicant’s solicitors and paid for by them. The tax invoice in question was for a total of $1,097.80.
The applicant requested the respondent to pay the account. The respondent denies liability. This case concerns the question of who is liable for that account.
HISTORY OF THE CLAIM
The applicant made a claim on 22 October 2014 for the cost of obtaining the medical report of Mr Frayne which was dated 1 October 2015 (the Frayne report).
An initial determination was made on 7 April 2016 rejecting the claim and this was affirmed on 13 May 2016. By application dated 2 June 2016 the applicant has applied to the Tribunal for a review of the decision made on 13 May 2016.
BACKGROUND
The applicant made a claim for workers compensation on 10 September 2014 for hearing loss attributable to employment with the respondent. That claim, brought pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), was accepted by the respondent and compensation was paid in 2015. The applicant’s injury was described as “bilateral industrial deafness” and was deemed to be sustained on 11 April 1997.
To assist with his claim for compensation the applicant had engaged Duncan Basheer Hannon Lawyers (DBH). On 2 September 2014 DBH wrote to Mr Frayne advising that they acted for the applicant (in relation to a hearing loss claim) and confirming “that arrangements will shortly be made for you to carry out a permanent impairment assessment”. The letter gave a brief history and requested a report and enclosed the practice direction required by the Rules of the Supreme Court to be provided to an expert from whom a report has been requested.
Further letters from DBH to Mr Frayne dated 3 September and 8 September 2014 referred to “arrangements for my client to be assessed”.
It is apparent that the report was requested in the context of a proposed claim for compensation under the SRC Act. This is further confirmed by Mr Frayne in his report which followed on 1 October 2014. In that report he said:
“Further to your letter of 2 September 2014 I saw Mr Raymond Lockwood … on 30 September 2014 for a permanent impairment assessment and report.
You have requested an assessment of permanent impairment for a hearing loss claim.
…
I explained my role as an accredited assessor of permanent impairment, and also that my report from this assessment would be sent to you.”
Mr Frayne reported that he had carried out audiogram investigations and provided a diagnosis that the applicant has a noise exposure deafness and that “maximum medical improvement has been achieved”. He said that the applicant would benefit from hearing aids and continued noise protection.
Mr Frayne concluded his report by saying that he had made all the necessary enquires and that no matters of significance had been withheld from the Court. He said the report had been written in accordance with the current edition of the WorkCover Guidelines for evaluation of permanent impairment.
THE APPLICANT’S CONTENTIONS
The applicant does not deny that one purpose of the report was to support a worker’s compensation claim but he submits that an additional purpose for seeing Mr Frayne was to obtain treatment for his medical condition. On the evidence before me I am unable to agree with that submission.
The question of compensation in respect of medical expenses is dealt with in s 16 of the SRC Act which provides relevantly:
“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.
…”
The applicant relies upon subparagraphs (b) and (e) of the definition of medical treatment in s 4 of the SRC Act as follows:
“Medical treatment means:
…
(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
..
(e)an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis…”
Section 4 of the SRC Act further provides that:
“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 applicant contends that the medical treatment provided to him by Mr Frayne comes within subparagraphs (b) or (e) of the definition of medical treatment in s 4 of the SRC Act. It is noted that both those subparagraphs require there to be a direction (or request) of a legally qualified medical practitioner.
The applicant submits that the tax invoice of Mr Frayne represents a cost of medical treatment obtained in relation to an injury, being bilateral industrial deafness sustained on 11 April 1997, in that the invoice includes the costs associated with a consultation with a legally qualified medical practitioner specialised to review and treat the subject injury, and in the course of that consultation, the applicant was provided with a physical examination, diagnostic testing/investigation with a diagnosis in relation to his injury, a prognosis in relation to his injury and treatment advice, all or some of which was reasonable for him to obtain in relation to the injury in all the circumstances.
The applicant further submits that the fact the consult occurred within the context of a claim for compensation and/or the provision of a medical report for the purposes of submitting and pursuing that compensation claim does not change the nature of his consultation with Mr Frayne, and the physical examination, diagnostic testing/investigations, conducted in the course of the consultation constituted reasonable medical treatment regardless of the provision of a medical report following the consultation.
The applicant relies upon a letter of referral provided by his treating general practitioner Dr Jessica Mah dated 5 September 2014 and submits that it constitutes a request or direction of a legally qualified medical practitioner so as to satisfy that element of subparagraphs (b) and (e) of the definition of medical treatment in s 4 of the SRC Act.
The applicant abandoned its submission that a report from Mr Frayne was required to submit a compliant claim for compensation under s 14 of the SRC Act.
THE RESPONDENT’S CONTENTIONS
The respondent submits the appointment with Mr Frayne and the production of the Frayne report was solely for the purposes of the solicitors for the applicant in advising the applicant as to his compensation entitlements and the pursuit of the same. It was not “medical treatment obtained in relation to the injury” to use the relevant phrase from s 16(1) of the SRC Act. It says that the Frayne report was generated at the request of the applicant’s solicitors and goes to the question of assessment for compensation purposes, not for treatment purposes.
With respect to subparagraph (b) of the definition of medical treatment, the respondent says it was not therapeutic treatment in that it was not an examination, test or analysis for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury, but was rather a report provided for the purposes of giving an assessment in relation to a claim for compensation.
With respect to subparagraph (e) of the definition of medical treatment, the respondent says that it was not an examination, test or analysis carried out on, or in relation to the applicant at the request or direction of a legally qualified medical practitioner but rather it was done at the request or direction of the applicant’s solicitors as evidenced by the report of Mr Frayne in answering and addressing the letter from DBH.
The respondent referred the Tribunal to medical notes which record that the applicant had been using hearing aids some years prior to making his application for compensation in 2014. In particular the respondent relies on the notes of Dr Mah dated 5 September 2014 which say:
“Known hearing impairment.
Saw audiologist recently and given new hearing aids.
Keen to pursue compensation for better hearing aids – previous exposure to noise through working at Telstra and in mines.
Has appt with ENT surgeon Dr Frayne September 11
Referral letter done”
Dr Mah’s note on 23 December 2014 records that the applicant had seen his lawyer from DBH with regards to compensation for hearing aids and that the report from Dr Frayne had been reviewed.
FINDINGS
I make the following findings.
The applicant was employed with the respondent from 1973 to 1997 as a line serviceman/trench man. During this period he was exposed to significant noise from loud machinery without being provided with hearing protection.
From at least 2004 it was apparent that the applicant had suffered hearing loss. Further deterioration of his hearing followed this initial diagnosis in 2004. At some stage the applicant commenced using a hearing aid. The records show that the applicant applied for a replacement hearing aid as at March 2013.
As at 5 September 2014 Dr Mah recorded that the applicant had a “known hearing impairment” and that he was “keen to pursue compensation for better hearing aids.” The applicant had by this time been to see a solicitor at DBH with respect to a hearing loss claim. DBH wrote to Mr Frayne on 2 September 2014 to arrange “a permanent impairment assessment” and to provide a report for the purpose of the proposed claim.
Dr Mah wrote a referral letter dated 5 September 2014 but it is clear from that letter and the DBH correspondence that it was DBH who were requesting what would properly be described as a medico-legal report. I reject the applicant’s contention that the letter from Dr Mah constituted a request or direction as those terms are used in subparagraphs (b) and (e) of the definition of medical treatment in s 4 of the SRC Act. As at the date of Dr Mah’s letter, DBH had already requested an assessment and a report. Dr Mah’s letter merely provided some past history and details of current medications and included the following:
“Thank you for seeing Raymond Lockwood … for an opinion and management of bilateral hearing loss. He has recently seen an audiologist and told that he has hearing loss of 60% in both ears. He does have a history of noise exposure through work (Telstra and mines) and is keen to pursue some compensation for this with regard to hearing aids.”
I find that the sole purpose of engaging Mr Frayne was for the purpose of the hearing loss claim. This is apparent from all of the surrounding circumstances and the Frayne report itself which is written to DBH who were conducting the compensation claim and which confirmed the request for an assessment of permanent impairment for a hearing loss claim. The examination, investigation and diagnosis carried out by Mr Frayne and the subject of his report were all directed to this assessment as opposed to the giving of medical treatment. The Frayne report was subsequently provided to the respondent in support of the compensation claim made later that month on 22 October 2014.
It would appear from the records that Dr Mah did not even see the Frayne report until 23 December 2014 when she was contacted by DBH for the purpose of providing a WorkCover medical certificate. If the consultation with Mr Frayne was for the purpose of providing medical treatment then one would have expected some follow up treatment from either Mr Frayne or Dr Mah as his treating general practitioner, but there is no evidence of this. One would also have expected some involvement from Medicare but there is no evidence of this. I note also that the subject invoice for services provided by Mr Frayne includes GST and describes the services provided as “Permanent Impairment Assessment”.
The applicant has failed to establish that the services provided by Mr Frayne come within the definition of medical treatment in s 4 of the SRC Act:
(a)There was no request or direction from a legally qualified medical practitioner. The relevant request was made by the solicitors and not Dr Mah and accordingly subparagraphs (b) and (e) of the definition of medical treatment are not satisfied on that ground alone;
(b)There was no treatment for the purpose of diagnosing an injury. The diagnosis of hearing loss was known well before the consultation with Mr Frayne. The purpose of seeing Mr Frayne was to provide an assessment for a compensation claim as opposed to diagnosing an injury; and
(c)There was no treatment given for the purpose of alleviating an injury. It was noted by Mr Frayne in his report that maximum medical improvement had been achieved. The reference to the applicant benefiting from hearing aids is merely a confirmation of the current treatment.
Merely recording that the applicant would benefit from hearing aids and continued noise protection is not evidence of treatment which would require a person to do something in the exercise of his or her skill which is designed to alleviate an injury: Capital Territory Health Commission v Cavanagh (FCA 3 March 1978, unreported judgement of Nimmo J).
There was some debate at the hearing as to the appropriate test to be applied in the event that it was found that there was a dual purpose for obtaining the report from Mr Frayne, namely a medico-legal purpose and a treatment purpose. Given my findings that the sole purpose was to provide a medico-legal report for the hearing loss claim I do not need to consider that issue.
I have considered the decision of Finn J in Comcare v Nikki O’Brien (1997) 49 ALD 293 where a similar issue was raised, namely whether expenses incurred were for “medical treatment” and hence were recoverable from Comcare under the SRC Act. The outcome of that case on its facts is similar to this case namely that the purpose was to obtain a medico-legal report and not to provide medical treatment.
DECISION
The order of the Tribunal is that the decision under review is affirmed.
I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Britten-Jones .......................[Sgd]...........................................
Administrative Assistant
Dated 21 December 2016
Date(s) of hearing
24 November 2016
Advocate for the Applicant Mr M Arentz Solicitors for the Applicant Duncan Basheer Hannon Advocate for the Respondent Mr D Clarke Solicitors for the Respondent Clarke Legal
0
0