Mecke and Comcare

[2006] AATA 593

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 593

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2005/10

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROBERT MECKE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member
Dr P Staer, Member

Date4 July 2006

PlacePerth

Decision The Tribunal affirms the decision under review.

.......[Sgd. Mr A Sweidan]..................

Senior Member

CATCHWORDS

Safety Rehabiliation And Compensation Act 1988 (C’th) ss 16(6)(7) and (8) – necessary journey – similar treatment available.

REASONS FOR DECISION

4 July 2006 Mr A Sweidan, Senior Member
Dr P Staer, Member           

1.      The Applicant, Mr Mecke, has sought a review of a decision of the respondent made by the respondent’s delegate Ms Peers dated 12 October 2004 refusing to pay travel costs involved in Mr Mecke travelling from his home in Mandurah to attend chiropractic treatment in South Fremantle.

2.      Mr Mecke was represented by Mr D Lyall and the respondent was represented by Mr B Dube instructed by the Australian Government Solicitor.  The Tribunal had before it the “T” documents and various other exhibits.

Background And Legislation

3.      Mr Mecke, whose date of birth is 13 January 1934, joined the Maritime Service as a seaman on the motor vessel Cape Don in 1971.

4.      Over the years he sustained a number of injuries for which he received compensation until his back condition became so disabling that he ceased work, on compensation, in 1994, and remained on compensation until his 65^th birthday when he became an age pensioner.

5.      From 1979 until the present he has been receiving treatment from Chris Martinovich, a Registered Chiropractor, in South Fremantle and after Mr Mecke moved from Rockingham to Mandurah he has been travelling in excess of 120kms per round trip to receive treatment from Martinovich. Comcare had paid both for the cost of the treatment and for the travelling expenses for the visits to Martinovich.

6.      On 25 August 2004 a determination was made by the respondent’s delegate Ms Bristow that Comcare was no longer liable to pay for travelling expenses for Mr Mecke to visit Martinovich.

7.      Mr Mecke asked for this decision to be reconsidered and the reconsideration by Ms Peers a delegate of the respondent took place on the 12 October 2004 and confirmed the previous decision that Comcare was not liable for travel expenses.

8.      Under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) the relevant subsections are 16(6), (7) and (8) which relevantly provide;

(6)Subject to subsection (7), if:

(a)compensation in respect of the cost of medical treatment is payable; and

(b)the employee reasonably incurs expenditure in doing either or both of the following:

(i)making a necessary journey for the purpose of obtaining that medical treatment;

(ii)remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;

(7)Comcare is liable to pay compensation to the employee:

(a)in respect of the journey—of an amount worked out using the formula:

Specified rate per kilometre x Number of kilometres travelled

where:

specified rate per kilometre means such rate per kilometre as the Minister specifies by notice under this subsection in respect of journeys to which this subsection applies.

numbers of kilometres travelled means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey).

(b)in respect of the employee remaining for the purpose of obtaining the treatment—of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.

(8)Comcare is not liable to pay compensation under subsection (6) unless:

(a)the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or

(b)if the journey made by the employee involved the use of public transport or ambulance services—the employee’s injury reasonably required the use of such transport or services regardless of the distance involved.

9.      Ms Peers in her decision of 12 October 2004 stated:

“In light of the evidence provided I am satisfied that the treatment obtained from Mr Martinovich is not treatment which can be considered to be therapeutic for the purposes of the SRC Act.

As such I am satisfied that the travel for such treatment cannot be met under section 16 of the SRC Act.”

10.     In the Tribunal’s view this statement goes beyond the original decision as the original decision did not say that the treatment obtained was not therapeutic but only dealt with the travel associated with the treatment, and as such the Tribunal can only look at the matter of the travel for the treatment. There may be some doubt as to the therapeutic value of the treatment, and this was commented on by Doctor Williams and is referred to further below. However this Tribunal is looking solely at the question of the travel in relation to which Ms Bristow stated in her original determination

“I believe that it is unreasonable for you to travel 120kms (return trip) to Fremantle to see a chiropractor when these chiropractic services are available in Mandurah”

11.     Ms Peers in her reconsideration of Ms Bristow’s determination stated:

“Even if it were so considered to be therapeutic, and I do not at all agree that is so in light of the advice that the benefits can be compromised, I am satisfied that there is similar treatment available to you locally.

Payment for travel would still not be met as it cannot be considered a ‘necessary journey’ for the purposes of section 16 of the SRC Act 1988.”

12.     There are thus 2 issues before the Tribunal.

(a)The nature of the Martinovich method of treatment; and

(b)Is it reasonable to accept that the same or similar treatment is available in Mandurah, so that the travel to South Fremantle is not a “necessary journey”.

The Martinovich Method

13.     Chris Martinovich was not called to give evidence but the way in which he practises and treats patients can be judged by the evidence we had, from numerous letters from Chris Martinovich to the respondent in relation to his treatment of Mr Mecke, the evidence of Dr Williams, a specialist orthopaedic surgeon called by the respondent, the evidence of the applicant in his oral evidence, a letter by a Dr Kessey from the Chiropractors Association of Australia (WA) Limited (Exhibit “R3”), and also from personal knowledge of the Tribunal (Dr Staer).

14.     The steps of the method are as follows.

(a)Some 24 hours before the patient is seen, a linseed heat pack is placed over the affected area of the back and strapped in place;

(b)At the consultation the patient lies face down on a firm couch and then with fingertips Mr Martinovich identifies the areas of pain or tightness that need treatment;

(c)Using gentle pressure with the heel of the hand, these areas are worked on;

(d)A tennis or other rubber ball is then used to run up and down the affected area along the lateral edge of the lumbar muscles; and

(e)The affected area is then covered with olive oil and gentle thumb manipulation is made of the appropriate spots.

15.     Mr Martinovich speaks of these as “adjustments” and the applicant himself feels that something is being done to his lumbar spine.

16.     Dr Williams was asked about this aspect of the treatment in his evidence and he affirmed that the gentle methods being used would be affecting muscle and facia but would not reach far enough down to have any effect on the bones of the vertebral column itself.

17.     In the Tribunal’s view this treatment is a physical method more akin to massage therapy, osteopathy or physiotherapy and is certainly not in the line of orthodox manipulative chiropractic therapy. There are also several similarities to Bowen Therapy.

18.     On the balance of probabilities based on the evidence the Tribunal finds that similar therapies would be available in Mandurah. Exhibit “R9” tendered by the respondent gives a list of physiotherapists, massage therapeutists, osteopaths, and Bowen therapists in the Mandurah area.

EVIDENCE

Robert Mecke

19.     The applicant gave oral evidence and stated that he had been seeing the Martinovich Brothers since 1979 and he was adamant that they are the only people that give him relief. It became obvious to the Tribunal that there is a close bond between Chris Martinovich and the applicant, and certainly the applicant has great faith in his treatment.

20.     The applicant said that he had tried a number of other practitioners, mainly in the chiropractic line, and that some of these had actually made him worse rather than better, but nobody treated him as well as the Martinovich Clinic.

21.     Since moving to Mandurah he had not sought alternative treatment in Mandurah but in the light of this application he had approached several of the chiropractors in Mandurah and they had all stated that they do not practice the Martinovich method. Some of them have advised that Mr Mecke continue being treated by the Martinovich Clinic. The applicant was adamant that he knows what is happening in his back and what is best for his back and that the Martinovich Clinic is the only one that is suitable for him.

Dr Desmond Williams

22.     Dr Williams is a Consultant Orthopaedic Surgeon who has a particular interest in arthritis. He also has a degree in psychology. Dr Williams has given an extensive report on 30 May 2005 (Exhibit “R6”) where he comments in detail on the Martinovich method and his conclusions are as follows:

“The Martinovich method simply is hands on mobilising manipulative technique and it will not be particularly more effective than other hands on techniques when they are applied by a physiotherapist or chiropractor as long as these professionals appropriately assess the patient and apply the required treatment technique that is within their skill range.

The Martinovich technique is not unique compared to these other techniques but it is noted patients develop great confidence in the technique and clearly in this patient who has spent the last 25 years travelling a considerable distance and great expense to receive the treatments perceives the Martinovich method has been particularly beneficial to him as a patient and this same confidence could be developed in other techniques.

This patient currently has tended to use treatment interventions as a regular technique to maintain some spinal mobility yet it can be done by his own efforts in a pool and stretching exercise program in a local community setting.”

23.     The Tribunal acknowledges the applicant’s statements that he is allergic to the chemicals in pools but otherwise agrees with Dr Williams’ view that an exercise program in a local community setting would be appropriate.

24.     The Tribunal also notes that Dr Williams said that:

“I believe the important point that Mr Martinovich has noted is that the patient travels a great distance from Mandurah to Fremantle and it has the potential to aggravate his back condition and compromise the benefits of any intervention by Mr Martinovich”

25.     Dr Williams also spoke of Bowen therapy and was quite confident that there is a range of physical therapy Practitioners in Mandurah who could adequately treat Mr Mecke.

26.     Dr Williams further stated he thought it was time after so many years of treatment by Mr Martinovich which has only been maintaining the status quo and had not seemed to have reaped any long term curative benefit that Mr Mecke needs a review by an appropriate specialist with new x-rays and CT scans to work out a program in which Mr Mecke can cooperate with his own input and decrease continual need of returning for Martinovich therapy

Conclusions

27.     While the Tribunal may have some doubts as to the efficacy of the Martinovich method as being used in the treatment of Mr Mecke this is not the question before the Tribunal as the treatment has already been accepted as “reasonable” by Comcare notwithstanding that some doubts have been cast on it by Ms Peers in her reconsideration.

28.     The Tribunal finds on the evidence that the treatments rendered by the Martinovich Clinic to Mr Mecke are not in the lines of orthodox chiropractic treatment but more along the lines of massage therapy, osteopathy and physiotherapy or Bowen therapy, being gentle hands on mobilising manipulative techniques.

29.     The Tribunal is satisfied that treatment of this nature is available from numerous practitioners in the Mandurah area.

30.     The Tribunal accepts the evidence of Dr Williams and finds that contrary to the applicant’s assertions, the Martinovich method is not a unique form of treatment.

31.     The Tribunal accordingly finds it is not necessary for Mr Mecke to travel the 120Kms to South Fremantle for treatment of his back pain by Martinovich and that it is not reasonable for that expenditure to be incurred.

32.     The Tribunal recommends that the applicant should, as advised by Dr Williams, seek a total review of his medical condition and seek to be directed to a program where with self help he does not become dependant upon any therapist.

33.     The Tribunal affirms the decision of the respondent under review.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member and Dr P Staer, Member

Signed:         .........[Sgd. Ms R Riberi]..................................
   Associate

Dates of Hearing  26-27April 2006
Date of Decision  4 July 2006

Representative for the

Applicant  Mr D Lyall
Counsel for the Respondent     Mr B Dube

Solicitor for the Respondent     Ms I McCormick, Australian Government Solicitor