Precup and ASP Ship Management Pty Ltd (Compensation)
[2019] AATA 5549
•18 December 2019
Precup and ASP Ship Management Pty Ltd (Compensation) [2019] AATA 5549 (18 December 2019)
Division: General Division
File Number(s): 2017/7513 & 2019/1823
Re: Adrian Precup
APPLICANT
AndASP Ship Management Pty Ltd
RESPONDENT
DECISION
Tribunal:Member A Ward
Date:18 December 2019
Place:Adelaide
The Tribunal:
1.sets aside the Decision under review in matter 2017/7513; and
2.orders that the Respondent pay the Applicant’s costs of the application.
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A WARD
(Member)
Catchwords
COMPENSATION – seafarers – medical treatment – whether costs of travel to medical treatment by taxi reasonable – whether medical treatment reasonable – whether reasonable for Applicant to use public transport to attend medical treatment – where Applicant’s accepted condition inhibitory to him using public transport – decision under review set aside.
Legislation
Seafarers Rehabilitation and Compensation Act 1992
Cases
Precup v ASP Ship Management [2015] AATA 467
Secondary Materials
Clinical Framework for the delivery of Health Services
REASONS FOR DECISION
18 December 2019
INTRODUCTION
This is an application for review of two decisions made by ASP Ship Management (the Respondent) arising out of an accepted back injury that Mr Precup (the Applicant) sustained in an incident while he was working aboard the MV Portland. The main issue for consideration is whether it is reasonable for the Respondent to pay for the Applicant’s taxi transport for his attendances at the Hampstead Rehabilitation Centre for supervised gym and hydrotherapy in relation to the accepted condition. The secondary issue for consideration is whether that supervised gym and hydrotherapy is reasonable treatment. The Seafarers Rehabilitation and Compensation Act 1992 (the Seafarers Act) provides compensation for seafarers and certain others who suffer injuries arising out of, or in the course of, their employment. Mr Precup was a marine engineer when he injured his back in a fall whilst working on board the MV Portland on 19 July 2005.
As a consequence of the fall, he developed urinary and bowel incontinence, having been diagnosed as suffering Cauda Equina Syndrome, which resulted in the incontinence. Mr Precup has suffered urinary incontinence and more significantly, bowel incontinence for many years leading up to the hearing. Mr Precup must undergo a significant regime of treatment every day to deal with his condition. He must wear special clothing and has to self-catheterise regularly every day.
By way of preliminary observation the Tribunal finds the Applicant to be a straightforward creditworthy and reliable witness.
He has ongoing pain from the injuries and requires a regime of medication to deal with that pain, as well as a regime of physical treatment, including supervised exercises at a gymnasium and hydrotherapy. Mr Precup was able to obtain this treatment and participate in his rehabilitation at the Hampstead Rehabilitation Centre, in the north-eastern suburbs of Adelaide. This part of the Centre is specifically designed for people with spinal injuries and staffed by persons with knowledge of such injuries and the effects of them (including incontinence). If required, more significant medical assistance is available from the adjacent Hampstead Rehabilitation Centre.
The facility is also funded by the South Australian state government so that the costs of attendance are very inexpensive, being $6.30 per session.
In addition to the ongoing chronic pain and incontinence, Mr Precup suffers from a psychiatric injury as a consequence of the physical injuries and their profound effect on his lifestyle. The incontinence causes him extreme embarrassment and he has anxiety connected with it.
This anxiety affects him to the point where he is very concerned about travelling in public in case he should have an episode of incontinence, which he says will cause him shame and humiliation.
Thus, his regular visits to the gymnasium and the therapy he receives for his chronic pain have the effect of allowing him to socialise in an area where there would be understanding if he were to suffer an episode of incontinence. He has peer support of other injured patients and trained personnel to supervise and assist if needs be. The treatment regime gives him activities to undertake when he can leave his house and socialise in that limited degree as well as the primary purpose of providing necessary treatment for his physical injuries.
His psychiatric injury can manifest in panic attacks and Mr Precup, so overwhelmed by his anxiety, can become unresponsive when having one. This was described by his psychiatrist, Dr Nagesh, as a sense of dissociation, “where he just goes into a zone and looks perplexed”.[1]
[1] Transcript p 135.
Indeed, during the hearing of this matter, Mr Precup suffered an episode of faecal incontinence and suffered a panic attack during which his trembling and unresponsiveness were clearly obvious.
Dr Nagesh described witnessing such an event during one of his consultations, his description being essentially the same as witnessed in the Tribunal hearing. This would be a frightening thing for other passengers on a bus to see. If it occurred in a public pool or gymnasium, it would also cause distress to those untrained in such matters who might witness it. Dr Nagesh described in his evidence that he tried to ask the Applicant to slow his breathing “but he was almost like oblivious of my suggestion at the time”. When the Applicant returned to the Doctor after cleaning himself up in the toilet he was “severely apologetic about the episode”.
This occurred in a doctor’s room and this was the result. A similar event occurred in the Hearing Room during the case. It was suggested by the Respondent it was a matter from which he made a good recovery – having an episode of faecal incontinence, having a panic attack, running out of the room, arranging to get home, cleaning himself up and getting back to get on with the hearing. The Tribunal does not accept this was a manageable matter that he could easily deal with on a regular basis. The Hearing Room of the Tribunal is not a metropolitan Adelaide bus. The acute distress of such an incident for him and others is easily contemplated.
As a consequence of the risk of an incontinence episode, Mr Precup has a significant psychiatrically acknowledged aversion to travelling on public transport. One practical consideration is that a bus ride, with the necessary stops and the period of waiting for the bus to arrive, would take effectively twice as long as a car ride, thus increasing the possibility of an incontinence episode occurring. If that did happen, there is a very strong chance that there would be other passengers on the bus. Mr Precup has described the smell associated with faecal incontinence as being one that could send him into a panic attack. If this occurred on a public bus, it would cause embarrassment and humiliation to both him and the other bus users. This is a source of great anxiety for him, to the point that his case is that he is and has been, by virtue of his accepted injuries, unable to travel on public transport.
This becomes the issues of the case. The Respondent decided that it would not fund taxi rides for Mr Precup to attend his treatment at the Hampstead Rehabilitation Centre, as it had been doing for over ten years previously. In addition, the Respondent said it would no longer fund the treatment at the Centre – inexpensive as it was – essentially because of the expense of the taxi ride, but also asserting that the treatment was not necessary and in the case of hydrotherapy, not treatment.
A Notice of Determination dated 7 September 2017 was served upon the Applicant. It stated that pursuant to s 28 of the Seafarers Act:
(a)It will no longer reimburse you for the cost of attending gymnasium services at the Hampstead Rehabilitation Centre;
(b)It will no longer reimburse you for the cost of obtaining hydrotherapy treatment at Hampstead Rehabilitation Centre;
(c)It will no longer reimburse you in respect of taxi fares in respect of making any journeys necessary for the purpose of obtaining medical treatment;
(d)It will reimburse you up to $124.50 per month for making these journeys (equivalent to one month’s unrestricted travel pass on Adelaide’s metro public transport network.
This Decision was reviewed, giving rise to the Reviewable Decision on 29 November 2017. Saliently, the Reviewable Decision was that the Respondent affirmed paragraphs (a) and (b) of the Notice of Determination set out above. It varied paragraph (c) and (d) to read as follows:
(c)It is not liable to reimburse you in respect of taxi fares for the purpose of making any journeys necessary to obtain medical treatment, and in the alternative to paragraph (a) and paragraph (b) in the Notice of Determination dated 7 September 2017, in respect of making any journeys necessary (which is denied) for the purpose of obtaining gymnasium services and/or hydrotherapy treatment at the Hampstead Rehabilitation Centre commencing 15 September 2017;
(d)It is liable to reimburse you an amount representing the monthly cost of an unrestricted travel pass to travel upon Adelaide’s metro public transport network for each month commencing 15 September 2017.
The travel to the Hampstead Centre occurred on the five weekdays, with three visits for gymnasium work for his injuries which was considered necessary treatment by all doctors for his pain condition. Then, there was a further two days’ attendance for hydrotherapy. This was considered relevant for his injuries by Dr Winsor who had the primary treatment of his physical injuries.
Pursuant to s 3 of the Seafarers Act, medical treatment means therapeutic treatment obtained at the direction of a legally qualified medical practitioner or therapeutic treatment by or under the supervision of a physiotherapist, osteopath, masseur or chiropractic registered as such under the law of any State or Territory. These are the relevant definitions.[2]
[2] The list of providers of supervision of therapeutic treatment under the definition of “medical treatment” subparagraph (d) seems to be restrictive and somewhat out of touch with more modern definitions of practitioners who might provide such supervision and as to how they are defined in other compensation schemes. Whilst not an issue in this case, a review of that definition of medical treatment (d) should be considered by those in authority to make sure it adequately reflects the range of practitioners who would be providing it in the normal course - or providing supervision of therapeutic treatment.
The Respondent presented the case on the basis that the gym exercises and the hydrotherapy were not particularly complicated and could be done in either a home gym or a local gym and swimming pool. No evidence was put to the Tribunal as to where there might be a more convenient facility and in particular, whether Mr Precup would be permitted to swim in a public pool given his condition.
Mr Precup lost his driver’s licence as a consequence of the psychological injuries in 2006. Such a loss is very significant. When the decision was made to stop funding the taxi fares, Mr Precup paid the fares himself in order to maintain his treatment regime. He has not used public transport in the form of train or tram or bus since his payments where stopped.
The cessation of funding for the taxi fares caused him significant distress and a greater need for pain relief, as referred to in the medical reports.
The claims management of the Respondent has been difficult for Mr Precup and several doctors have referred to the adversarial nature of it. Mr Precup feels he has to justify everything that he does. It is noted that the decision was made to cut off the taxi funding with minimal notice and that decision has continued. It was not a case where it was put to Mr Precup to try to change his treatment or rehabilitation in a way that might make him more able to ride on public transport, and then make an assessment whether his failure to do so was unreasonable or not. It was simply cut off and left up to him to make other arrangements.
As a preliminary comment, that action of the Respondent was not supported by the Respondent’s expert psychiatrist, Dr Ewer. He provided two very detailed reports for the proceedings and gave clear evidence that he would not recommend a sudden cessation of Mr Precup’s regime, but rather, any such modification of the regime would be something to be handled carefully, with medical guidance. He specifically recommended “mindfulness-based intervention, specifically so that we’re not just throwing him in the deep end.”[3]
[3] Transcript p 185 pt 45.
This view was echoed by Dr Nagesh, the treating psychiatrist, and Dr Winsor who was the treating rehabilitation specialist. It follows, as a matter of common sense, that with a sudden withdrawal of services that have been provided for many years, a person with a distressing physical injury with the most embarrassing consequences and a diagnosed psychiatric injury would be affected greatly by this decision.
However, the situation is compounded by the fact that there had already been a dispute between Mr Precup and the Respondent when there had to be a proceedings in the Tribunal to deal with appropriate amounts of compensation being payable for him to access treatment for his incontinence.[4] That case involved decisions made for a claim for compensation of the costs of specified treatment in the application of section 28 of the Seafarers Act. The Learned Deputy-President said:[5]
“The company must consider each claim made by Mr Precup on its merits, which include the relevant circumstances in which the treatment was obtained. This does not mean that the company cannot inform Mr Precup that it will continue to pay compensation for recurring treatment at a particular rate until circumstances change. This is obviously the most efficient manner in which compensation can be determined and paid and would be of benefit to both parties. In my view, determining that the appropriate amount of compensation payable should change, a relevant consideration should be whether there has been prior consultation with Mr Precup and, if necessary, his medical advisors.” [Author’s emphasis]
[4] Precup v ASP Ship Management [2015] AATA 467.
[5] Ibid [114].
It is of some concern that in spite of that clear direction from the Tribunal, the Decision of 30 June 2015 was effectively ignored. The Respondent cut off Mr Precup’s long-standing means of travelling for his medical treatment and for the treatment he had been receiving at the Hampstead Centre. There was no consultation with the treating doctors regarding a change in the regime of which the Tribunal was aware. There was no discussion as to whether treatment could be directed towards building up resilience in Mr Precup to enable him to attempt to travel on a bus or modify his treatment regime.
The Respondent placed reliance on the earlier view of Dr Ewer but this was qualified in his second report when he said on reflection upon the evidence that “[Mr Precup] is probably not able to currently travel on public transport because of his panic attacks”. However, no change was made to the decision.
The Respondent pushed on with the case - presumably relying on the views of Dr Chase. The Tribunal accepts the Applicant as a genuine witness who has suffered dreadful injuries with particularly difficult consequences. The majority of doctors who gave evidence or provided reports have relied upon him to make their findings. So, whilst Dr Chase did his best to assist the Tribunal with his genuinely held views, in so far as they suggest a much greater capacity on behalf of the Applicant than the Applicant and the other doctors assert, they are rejected.
The overwhelming evidence, and that of the Respondent’s specialist psychiatrist is one of significant disability and a requirement for carefully well-planned rehabilitation - not cutting-off of treatment and travel with no warning nor plan.
The Tribunal does not consider reimbursement for travel upon Adelaide’s Metro Public Transport Network (thus buses trains and trams) as approaching anything near a rehabilitation program. It is a throwing him into the deep end, with no prior consultation with the Applicant nor his medical advisors.
Mr Precup has become somewhat upset at what his doctors have described as the adversarial nature of the handling of his claim.
ISSUES RAISED BY THE RESPONDENT
It is appropriate to the assessment of the refusal to fund transport for Mr Precup’s treatment that notice be given of the fact that the Applicant travelled by aeroplane on a trip to Europe in 2016 and to Sydney to participate in the earlier AAT proceedings referred to above.
Whilst away on his European tour, the Applicant did not have access to his usual treatment regime. He was not mindful of a deterioration in his symptoms. That again is a matter to be taken into account by himself, his treating practitioners and the Respondent, as to whether this could give rise to a modification of his treatment regime in the future. This again is a matter to be considered in the appropriate medical and therapeutic setting.
The Respondent was concerned that since the regime of travel funding had been in place the Applicant had shown an ability to engage in some extensive travelling in very specific circumstances. These were, over the relevant years, four occasions.
The most significant was a plane trip to Europe and then a European holiday. To a degree, this was somewhat forced upon Mr Precup by cultural issues, although there is no doubt there was an element of pleasure in that. He was travelling overseas with his family. This involved holidaying for some weeks in Europe and undertaking trips whilst there. During the period, he did not have access to his regular treatment.
More importantly from the Respondent’s point of view, it demonstrated an ability on the part of Mr Precup to undertake long-term travel in a crowded conveyance (an aeroplane) over a considerable period of time.
Whilst that was accurate, and he was able to do that, the majority of the medical practitioners who gave evidence took great account of the fact that this required a significant amount of pre-planning on Mr Precup’s part, including obtaining tickets on the long-haul flight close to the larger toilets and so that he would have his family with him.
It is important that Dr Ewer, who was aware of this trip at the time he was giving his evidence, considered the fact that he was able to undertake such a trip with all the necessary pre-planning, did not mean that automatically he could undertake day-to-day travel on public transport in metropolitan Adelaide. However, he considered that it would be a positive indicator that treatment directed at desensitisation could be beneficial.
Put another way, the fact that he could travel on an aeroplane did not mean that the Respondent could automatically cut off the taxi fares based on the assumption he could travel on public transport. What it should have meant is that in conjunction with his medical advisors, the Applicant could undertake a trial of rehabilitation on that positive basis. Of course, that did not occur.
Similarly, the Applicant took an aeroplane trip for the purpose of the earlier AAT Hearing referred to earlier. Once again, the fact that he can ride in an aeroplane does not mean he can take a public bus, although it is a matter that can be looked at for rehabilitation. There are toilets on aeroplanes; there are not toilets on Adelaide Metropolitan buses which is his main option for transport.
In March or April 2017, the Applicant took a train to Outer Harbour to meet a friend who was visiting on a ship. This was a one-off event and again does not indicate an ability to catch public transport on a regular basis. It might be an indicator that treatment could be directed towards that end, with proper consultation.
He travelled to Monarto Zoo in rural South Australia. It is an open-range zoo with exotic African animals. The evidence indicated that various parts of the zoo could be accessed by a bus ride. He was uneasy on the bus and his evidence is he did not partake fully in the excursion because of increased anxiety. This very limited use of a bus does not evince capacity for full time use of domestic public busses.
It is of note that when the decision was made to cut off the payment for treatment and travel the Applicant continued with the same regime at his own expense.
The Respondent’s case would be much more compelling if, when the payments were cut off, the Applicant then caught buses, but that did not occur.
The Applicant did make arrangements to reduce his reliance on taxis after the decision of the Respondent. He arranged with Dr Winsor to see him at different premises in order to reduce travel time and has made other modifications to his regime. These are tinkerings, although they are to the Respondent’s benefit. The main recurring travel expense is attending his gym programme to maintain his treatment regime.
The Applicant’s injuries are so serious that a variation to that gymnasium programme (which includes the physical work and the hydrotherapy) will have adverse consequences for him.
There was reference during the hearing to what is referred to in other jurisdictions as the “Clinical Framework for the delivery of Health Services”. This is a document prepared by the Transport Accident Commission and WorkSafe Victoria. The Tribunal does not read this document as being binding upon it in any way. It makes common sense general observations including a stated purpose that is has been established to optimise participation at home, work and in the community. It also has a purpose to achieve the best possible health outcomes for injured people.
In the particular facts of this case, the Tribunal has no doubt that the treatment regime that has been prepared for the Applicant by Dr Winsor, Dr Nagesh and the others who have supported him, is reasonable and appropriate in these circumstances. It cannot be considered that the sudden removal of the travel assistance and the regular treatment could be considered a reasonable application of these principles, as distinct from periodic review and management for the most effective and appropriate treatment. It is noted that the Applicant did not have access to his usual regime whilst on his European holiday and did not report a significant deterioration of symptoms. The Tribunal heard evidence of the benefit of distraction that would come with such a holiday with his family. Again, it would be a matter to consider in future treatment goals, but not a basis to guillotine an existing treatment regime.
On that point, a suggestion that the Applicant could simply undertake exercises in a home gym is too simplistic. The current regime of treatment has a matter of importance providing a basis to engage in the community and enhancing the treatment by involvement with others. This is not the main reason for the treatment, but is a benefit. In any event from a treatment perspective Dr Winsor considered the specialist spinal injury gymnasium to be the appropriate one for the Applicant’s injury and the Tribunal agrees. This also addresses the issue of using a local gymnasium. There are staff at the Hampstead Centre with expertise in the unique challenges that those with spinal injuries have. That is the purpose of the centre and why it is heavily subsidised.
There were suggestions during the course of the hearing to some of the doctors and the Tribunal that variations could be considered such as three trips per week to the Hampstead Rehabilitation Centre, so as to save on taxi fares. These might be appropriate treatments to be considered by the treating practitioners and the Applicant in the course of treatment (which has been the clear direction of the Tribunal at the earlier hearing). These are not matters that have been attempted as part of the rehabilitation programme.
What was made clear to the Tribunal – and it is obvious – is that if the Applicant was receiving assistance from properly qualified professionals to assist him in overcoming his problems with catching a bus, but had an episode of faecal incontinence, it would be devastating.
The suggestion that the Applicant could catch a bus and simply get off at the next stop if he had such an episode is not reasonable outside a carefully planned clinical setting. It is not hard to imagine the embarrassment such an episode would cause, coupled with the frightening effects of the panic attack that may well follow such an episode.
The Tribunal finds that the Applicant has not incurred the costs of treatment and transport in an unreasonable or extravagant way. He lives in this regime because of the injuries he suffered in the course of his employment. The treatment and travel has been reasonably incurred as a consequence of his specific condition. He has followed the direction of his treating specialists and has indicated in the Hearing that he would follow their direction if they were to suggest changes to his regime. These are matters for the future and to be properly assessed with full consultation of the parties and the medical experts. There is no doubt that the guillotine effect of cutting off services had an adverse effect on a person with an accepted psychiatric condition. It is patently foreseeable that to do so again will have a detrimental impact on his injuries. That is not to say treatment regimens cannot be reviewed in the future, but with proper consultation and a co-operative approach, as was clearly obvious back in 2015.
The Second Reviewable Decision dated 20 March 2019 accepted chronic adjustment disorder with depressed and anxious mood and panic disorder which was materially contributed to by the injury to the Applicant’s lower back.
The Decision went on to state that in view of the fact that the Applicant had been receiving compensation under section 31 since the 2006 Decision in respect of the lower back, he would not be entitled to additional compensation under section 31 for this chronic adjustment disorder with depression, anxious mood and panic disorder.
The Decision goes on to state that the ASP does not accept that the psychiatric condition has incapacitated him from performing the usual duties in his employment as a ship’s engineer. This matter was not subject to any significant evidence nor debate in the course of the hearing.
The Decision further states that the “ASP determines you are not entitled to receive compensation pursuant to section 28 in respect of claimed medical expenses for the psychiatric condition”. That makes little sense in view of the acceptance of the condition. The Respondent had been making payments for psychiatric and psychological treatment and it is clear that the Applicant requires treatment for that condition.
The parties have requested that upon consideration of this Decision there is further attendance to consider the necessary orders that arise concerning the second Reviewable Decision.
DECISION
Whilst specific orders will be made at a subsequent consideration, the findings of the Tribunal in regard to the First Decision is that it will be set aside.
Consequential orders with regards to the Second Reviewable Decision will be adjourned for further consideration.
The Respondent is ordered to pay the Applicant’s costs of the application.
62. I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for the decision herein of Member Ward.
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Administrative Assistant Legal
Dated: 18 December 2019
Dates of hearing: 21 – 23 October 2019 & 18 November 2019
Counsel for the Applicant Mr L. Grey
Solicitors for the Applicant McNally Jones Staff
Counsel for the Respondent Mr J. Lenczner
Solicitors for the Respondent HFW Australia
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