Miko Chun and Comcare
[2013] AATA 603
•27 August 2013
[2013] AATA 603
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2570
Re
Miko Chun
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member J Toohey
Dr I Alexander, MemberDate 27 August 2013 Place Sydney Decision under review affirmed.
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Senior Member J Toohey
CATCHWORDS
COMPENSATION – medical treatment – psychiatric injury – whether Comcare liable for costs of personal trainer – whether use of personal trainer was medical treatment – whether it was reasonable medical treatment – decision under review affirmed.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988: ss 4, 16(1)
CASES
Comcare v Watson (1997) 73 FCR 273
Bashar v Comcare [2002] FCA 837
Re Ronald John Thiele v Commonwealth of Australia [1990] FCA 123
Comcare v Rope (2004) 135 FCR 443SECONDARY MATERIALS
REASONS FOR DECISION
Senior Member J Toohey
27 August 2013
BACKGROUND
In February 2008, Comcare accepted liability to compensate Mr Miko Chun for a psychological injury, described as an adjustment disorder with mixed emotional features, sustained at work in 2007.
The question that arises in these proceedings is whether Comcare is liable to compensate Mr Chun for the cost of a personal trainer in the periods 31 July 2009 to 31 March 2010, and 21 October 2010 to 9 May 2011. In particular:
(a)whether Mr Chun’s use of a personal trainer was medical treatment within the meaning of the Safety Rehabilitation and Compensation Act 1988 (the Act); and
(b)if so, whether it was medical treatment that it was reasonable for him to obtain in his circumstances.
RELEVANT LEGISLATION
By s 16(1) of the Act, 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 DECISION UNDER REVIEW
In May 2011, Mr Chun sought reimbursement for the following amounts:
·$7,128.00 for personal training sessions at $720.00 a month with “Biomechanics Personal Training” in Canberra, where he was living at the time, for the period 31 July 2009 to 31 March 2010;
·$8029.80 for personal training sessions at $450.00 a fortnight with “Fearless Living” in Sydney, where he moved in April 2010, for the period 21 October 2010 to 9 May 2011; and
·$749.00 for a 12-month membership at Broadway Gym in Sydney.
Comcare agreed to meet the full cost of the gym membership and agreed to pay $480.00 for six sessions of personal training at $80.00 a session, which it considered to be “in accordance with a generous market rate” and “in proportion to the benefit that could be expected from that form of treatment”.
In reaching that decision, Comcare determined that the cost of the gym membership was reasonable because Mr Chun’s general practitioner had recommended exercise as a means of treating his psychological injury. Further, that it was reasonable for Mr Chun:
to be introduced by a personal trainer to the gym and the equipment, and for [him] to have five subsequent sessions to assist with [his] skills and motivation to use the gym equipment.
Comcare denied liability to compensate Mr Chun further on the ground that, although he argued that personal training helped him overcome his fear of people and strangers, there was no medical evidence to confirm or indicate that Mr Chun derived any substantial benefit from personal training.
Comcare contends in these proceedings that, while personal training may come within the definition of medical treatment in the Act, there is no evidence that Mr Chun had personal training under the supervision of, or at the direction of, a legally qualified medical practitioner. Further, even if the Tribunal were so satisfied, the personal training which Mr Chun had was not reasonable medical treatment in the circumstances of his case.
It was suggested for Mr Chun that, by accepting liability to pay for six sessions of personal training, Comcare may be estopped from denying liability for further sessions. We reject that contention. We accept that six sessions with a personal trainer was a means of enabling Mr Chun to familiarise himself with the gym. Nothing prevents us from finding that further use of a personal trainer did not constitute medical treatment.
MR CHUN’S EVIDENCE
Mr Chun has been diagnosed with different psychological conditions at different times including post-traumatic stress disorder, bi-polar disorder, and Major Depressive Disorder or Adjustment Disorder with anxiety and depressed mood. Nothing in this case turns on the particular diagnosis; there is no question that Mr Chun suffers from a serious, debilitating illness.
Mr Chun gave evidence that having a personal trainer motivates him to attend the gym and enables him to be around people without having necessarily to associate with them. He says friends and associates from the past have distanced themselves from him because of his condition, and having a personal trainer helps him feel less isolated and better able to manage his anxiety and fear; it has helped him be healthier, to control his weight, and to calm his mind.
Mr Chun also gave evidence that he discussed the use of a personal trainer with his general practitioner, Dr Sari Larsen, whom he started seeing after he moved to Sydney in April 2010, and she approved. As we set out below, there is no reference to use of a personal trainer in any of Dr Larsen's reports before 9 December 2011.
For Comcare it is submitted that Mr Chun has exaggerated his sense of isolation and his need for a personal trainer. Comcare refers to evidence that Mr Chun attended a karate club for about six months in 2011 and was apparently actively involved in its activities including attending an overseas camp and participating in competitions. Comcare further contends that Mr Chun was vague and evasive when asked about his involvement in the club by Dr Ingliss Synnott, a psychiatrist whom he saw for assessment in January 2013.
Mr Chun gave evidence that he has done karate since he was eight and wants very much to obtain his black belt so joined the club in 2011, but the pressure of competitions and participating generally became too much and he stopped going. In light of his psychiatric illness, we are inclined to accept his evidence. It may be that he has overstated his need for a personal trainer but nothing really turns on his involvement in the karate club.
WAS MR CHUN’S USE OF A PERSONAL TRAINER MEDICAL TREATMENT?
Section 4 of the Act provides that medical treatment means, relevantly:
(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…
Therapeutic treatment includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
There is no argument, and we are satisfied, that gym membership and use of a personal trainer may be therapeutic treatment for the purposes of the Act. It need not be curative; it may be merely palliative treatment: Comcare v Watson (1997) 73 FCR 273; Bashar v Comcare [2002] FCA 837.
Whether gym membership or use of a personal trainer is medical or surgical treatment is less clear, although in Re Ronald John Thiele v Commonwealth of Australia [1990] FCA 123, Hill J said “there would seem little doubt that an exercise regimen, at least one carried out under the supervision of a doctor, would qualify as either medical or therapeutic treatment” at [13]. Because Mr Chun’s claim fails for other reasons, we do not have to finally determine this issue.
There is little authority on the meaning of “under the supervision of” in para (a) of the definition of medical treatment. In The Australian Oxford Dictionary, to supervise means to oversee the action or work of (a person), and oversee means to officially supervise (workers, work etc). The phrase suggests a degree of care, control or monitoring by a medical practitioner, whether or not at his or her specific direction. At the very least, it requires a medical practitioner be aware of the therapeutic treatment being undertaken.
The phrase “obtained at the direction of” in para (b) of the definition does not require “monitoring, control or management” by a doctor, but it contains “an imperative element” meaning it is “advised, prescribed or ordered” by a medical practitioner: Comcare v Watson (above) applying Thiele v Commonwealth (above).
There is no evidence in the material before us that Mr Chun's use of a personal trainer was under the supervision of, or at the direction of, any of his doctors during the relevant periods (outlined above at [2]). There is no evidence that any of his doctors was even aware that he was using a personal trainer during the relevant periods.
EVIDENCE FROM MR CHUN’S DOCTORS
On 30 October 2009, Dr Lin, Mr Chun’s general practitioner at the time, certified him unfit for work. Dr Lin recommended anti-depressants and review by a psychologist but made no mention of exercise or the use of a personal trainer.
The first reference to exercise in the documents before us was on 10 November 2009 when Dr Lin certified Mr Chun unfit for work and recommended regular gym exercise. Dr Lin made a similar recommendation in certificates dated 5 January 2010 and 23 March 2010 but made no reference to a personal trainer.
On 4 February 2010, Mr Chun saw Dr Jeffrey Swift, psychiatrist, for assessment. Dr Swift noted reports from Mr Chun’s general practitioners. He noted that Mr Chun exercised regularly. Dr Swift reported that he considered his current treatments appropriate. He made no mention of a personal trainer.
Reports on 26 February 2010 and 25 March 2010 to Comcare from Dr Turtle at the same practice as Dr Lin made no reference to exercise or a personal trainer.
Mr Chun moved to Sydney in April 2010 and started seeing Dr Sari Larsen, general practitioner. Dr Larsen referred him to Dr Babidge, psychiatrist, for assessment and management of his anxiety and depression. Mr Chun saw Dr Babidge on six occasions. In a report to Dr Larson in May 2010, Dr Babidge made no reference to exercise or personal training. In a report in June 2010, he said Mr Chun needed to have a regular routine and exercise but made no mention of a personal trainer.
On 22 December 2010, Dr Larsen issued a medical certificate in which she described Mr Chun’s management program as “antidepressant, counselling, exercise program, massage, yoga”. In subsequent certificates, Dr Larsen certified Mr Chun unfit for work, each time describing his management plan in similar terms, including an exercise program, but she made no mention of a personal trainer.
Mr Chun spent two weeks from 10 June 2011 at St John of God Hospital for treatment for severe anxiety and depression. On 29 June 2011, Dr Larsen referred to his current treatment plan as comprising antidepressants and a psychiatrist. She made no mention of exercise or a personal trainer. On 8 August 2011, Dr Larsen reported that Mr Chun’s treatment should include gym exercise because it was “aerobic and endorphin-generating and would benefit his depression”. She made no reference to a personal trainer. Nor is there any reference to a personal trainer in a medical certificate she issued on 29 November 2011.
The first of three references by Dr Larsen to use of a personal trainer is in a letter dated 9 December 2011 to Comcare in which she wrote:
He also needs to do physical therapy with a personal trainer in a gymnasium 4 x weekly as this [indecipherable] is important for his mental as well as physical well-being.
In a handwritten note on Dr Larson's letter, Dr Sameh Anis, psychiatrist at St John of God Hospital, endorsed her plan. Dr Larsen’s letter was approximately seven months after the later of the relevant periods. For reasons which were not altogether clear, at the hearing Mr Chun stated through his solicitor that he did not rely on this document.
We were advised that Dr Larsen would be available to give evidence to the Tribunal at the afternoon session of Mr Chun’s hearing. When the hearing resumed after lunch, we were advised that she was very busy and would not be appearing. It was not suggested for Mr Chun that he would be disadvantaged by her non-appearance.
For Mr Chun it is submitted that we should infer from the references to exercise in the various medical reports and certificates that they included use of personal trainer. We do not accept that submission.
We accept that Mr Chun’s doctors considered exercise would be beneficial during the relevant periods. We accept Mr Chun’s evidence that he found it helpful to have a personal trainer during the relevant periods. However, that is not the test of what constitutes medical treatment for the purposes of the Act. There is no evidence that Mr Chun used a personal trainer under the supervision of, or at the direction of, or any of his doctors. It is not apparent that any of them was even aware that he was using a personal trainer during the relevant periods.
DOCUMENTS SUBMITTED AFTER THE HEARING
Following the hearing, Mr Chun submitted copies of two further documents signed by Dr Larsen under cover of a letter stating that he believed Comcare possessed the documents but did not disclose them in the documents it submitted to the Tribunal.
The first document appears to be a Comcare claim form, signed by Mr Chun on 13 May 2012 and by Dr Larsen on 5 June 2012. It was produced under summons by Dr Larsen but not referred to at the hearing. It asked whether Mr Chun had attended a gym in the previous three years. He wrote that he had attended Fitness First in Newtown. Dr Larsen stated on the form that she “was recommending” “personal training supervised gym program incorporating cardiovascular fitness and weights” to help Mr Chun’s mental state and his retraining for employment.
Leaving aside the fact that it was not referred to at the hearing even though it was in the summons documents, this first document does not assist Mr Chun. It post-dates the relevant periods by more than 12 months. Its language is prospective. If Dr Larsen meant to refer to the relevant periods, it is not apparent from the document, and nothing in the document leads us to infer that she did.
The second document was a handwritten letter from Dr Larsen dated 13 August 2013 in which she stated that she had advised Mr Chun “with agreement from Dr Anis and Dr Dinnen” to undertake a supervised exercise program with a personal trainer” to help his recovery from adjustment disorder with severe anxiety and depression.
This second document was written after the Tribunal hearing; it could not have been in Comcare’s possession. Leaving that aside, it does not assist Mr Chun. We accept that advice from a doctor to undertake a certain course or form of therapy could be read as therapeutic treatment obtained at the direction of the doctor. However, Dr Larsen’s letter does not indicate what period she is referring to. Dr Anis’ endorsement on her letter of 9 December 2011 post-dates the relevant periods and does not refer to those periods. Dr Dinnen’s evidence concerning the use of a personal trainer is considered below. His evidence goes to whether use of a personal trainer was reasonable, and not to whether Mr Chun’s use of a personal trainer was medical treatment for the purposes of the Act.
In these circumstances we are not satisfied that Mr Chun's use of a personal trainer was medical treatment within the meaning of the Act. It follows that Comcare is not liable to compensate him for that cost.
WAS IT REASONABLE MEDICAL TREATMENT?
For completeness, we have decided to consider whether, if it were medical treatment for the purposes of the Act, Mr Chun's use of a personal trainer was treatment that it was reasonable for him to obtain in the circumstances.
In Comcare v Rope (2004) 135 FCR 443, Justice Stone said 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 cost/benefit analysis in relation to [the] treatment. The Tribunal needed, among other things, to weigh the benefit of [the] treatment against the cost of obtaining it, taking into account any other treatment available to Mrs Rope.
In Comcare v Holt (2007) 94 ALD 576, Mansfield J, considering Rope (above) said:
There may be circumstances where treatment is unreasonable because its anticipated therapeutic benefit does not justify the expense involved in the circumstances. Section 16(1) of the SRC Act does not indicate that the proposed treatment is reasonable unless alternative treatment of more or less equivalent therapeutic benefit and at a lower cost is shown by Comcare to be available. …. There might be cases where the cost of the proposed treatment, even if no other treatment options were available, would lead to the view that [it] is unreasonable having regard to its anticipated benefit.
Justice Mansfield added:
The extent to which such treatment has been undertaken in the past and the degree of its success may also be relevant. There may be cases … where proposed treatment, although of therapeutic benefit, is unreasonable having regard to the extent of the anticipated benefit of the cost involved, even if no similar treatment had previously been undertaken. There may be cases … where treatment like the proposed treatment which in the past has had some therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of past experience: see, for example, Bashar v Comcare. There may be other illustrations of facts relevant to the determination of reasonableness of proposed medical treatment.
Dr Anthony Dinnen, a psychiatrist to whom Mr Chun was initially referred for medico-legal assessment, has been his treating psychiatrist since February 2012. He has seen Mr Chun every one to three months since. Dr Dinnen gave oral evidence concurrently with Dr Synnott.
Dr Dinnen and Dr Synnott agree that exercise is widely accepted as beneficial in the treatment of all sorts of conditions. They accept that Mr Chun found a personal trainer helpful but agree that a personal trainer is not an essential part of his treatment but, rather, an adjunct to his treatment. They agree that it was a form of social activity that became, in effect, a substitute for other social activities.
Dr Dinnen gave evidence that he does not normally regard exercise at a gym as a core part of psychiatric treatment but many patients report that it helps their mental state and, although he would not prescribe or direct it himself, he would support it if suggested by the patient's general practitioner. He thought the fact that Mr Chun paid for a personal trainer himself when Comcare denied liability indicated how important it was to him. However, he thought it would be speculating to say that Mr Chun obtained a benefit from use of a personal trainer during the relevant period; at best it was of “marginal” benefit, and it was of “marginal” value to his long-term treatment. Dr Synnott was not prepared to speculate on any benefit from a personal trainer during the relevant period.
Whereas Mr Chun gave evidence that he has really not improved over the past four years or so, Dr Dinnen gave evidence that he has seen some improvement since he first saw Mr Chun. He is now more focussed and more stable, and his medication has reduced. Dr Synnott thought this probably reflected the benefit of Dr Dinnen’s treatment.
By his own evidence, Mr Chun used a personal trainer over a fairly lengthy period with no improvement in his psychological condition. We accept that improvement is not the test, and it would be sufficient if using a personal trainer had a palliative effect and merely alleviated his condition. However, we accept the evidence of Dr Dinnen and Dr Synnott that it was, at best, of marginal benefit to his condition. Given the high cost involved, we do not think it reasonable, in his circumstances, for Mr Chun to obtain that treatment.
We are satisfied that it was reasonable, in the circumstances, for Mr Chun to have six sessions of personal training in order to introduce him to, and familiarise himself with, the gym. Beyond that, we are not satisfied that Comcare was liable to compensate him for the cost of his personal trainer.
CONCLUSION
As there is no evidence that Mr Chun’s use of a personal trainer during the relevant periods was supervised by, or directed by, any of his doctors, we find that it was not medical treatment for the purposes of the Act. Even if it was medical treatment, when considering the cost of the personal trainer in light of the benefit obtained by Mr Chun, we are not satisfied that it was reasonable medical treatment.
We affirm the decision under review.
I certify that the preceding 51 (fifty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Toohey.
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Associate
Dated 27 August 2013
Date(s) of hearing 12 August 2013 Solicitors for the Applicant Mr Ian Collins, of Ian Collins Solicitor Counsel for the Respondent Ms S Callan Solicitors for the Respondent Ms R Jones, of Australian Government Solicitor
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