Miko Chun and Comcare

Case [2013] AATA 603

[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, Member
Date 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 443

SECONDARY MATERIALS

REASONS FOR DECISION

Senior Member J Toohey

27 August 2013

BACKGROUND

  1. 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. 

  2. 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

  3. 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

  4. 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.

  5. 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”. 

  6. 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…

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Details
AGLC
Miko Chun and Comcare [2013] AATA 603
Case
[2013] AATA 603
Decision Date

CaseChat Overview and Summary

The case of Miko Chun and Comcare involved a dispute over compensation for medical treatment related to Mr. Chun’s psychiatric injury. The case was heard and decided in the Federal Circuit Court of Australia. Mr. Chun sought reimbursement for the costs of personal training sessions that he claimed were necessary for his treatment and rehabilitation. Comcare, on the other hand, had agreed to pay for a limited number of personal training sessions but denied further liability, arguing that the additional sessions did not constitute reasonable medical treatment.

The central legal issue in this case was whether the personal training sessions that Mr. Chun received were to be considered "medical treatment" under the applicable legislation, specifically the Safety, Rehabilitation and Compensation Act 1988 (Cth). Additionally, the court had to determine whether the personal training sessions that went beyond the initially agreed-upon six sessions were reasonable and necessary for Mr. Chun’s treatment. The court also considered whether Comcare was estopped from denying further liability due to its initial acceptance of liability for six sessions.

The court found that while the initial six sessions of personal training were reasonable as they helped Mr. Chun to familiarize himself with the gym and its equipment, the subsequent sessions did not qualify as medical treatment. The court held that there was no evidence to suggest that Mr. Chun’s use of a personal trainer was under the supervision of, or at the direction of, a legally qualified medical practitioner. Consequently, the court affirmed the decision of Comcare to deny further compensation for personal training sessions beyond the initial six. The court also dismissed the contention that Comcare was estopped from denying further liability based on its initial acceptance of responsibility for six sessions.

The court’s decision resulted in the affirmation of Comcare’s refusal to compensate Mr. Chun for additional personal training sessions beyond the initial six. This ruling underscores the necessity for any treatment to meet the statutory definition of medical treatment and to be deemed reasonable in the context of the employee’s specific circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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