RACHEL SCUDERI and COMCARE

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 985

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1205

GENERAL DIVISION		)
Re		RACHEL SCUDERI

Applicant

And  COMCARE

Respondent

DECISION

Tribunal

Senior Member A K Britton

Dr I S Alexander, Member

Date 23 December 2009

Place Sydney

Decision  The decision under review is affirmed

.......................[SGD].......................

Definition of medical treatment

5.The term “medical treatment” is defined in s 4 of the Act.  In our view only paragraphs (b) and (h) of the definition are relevant to Mrs Sruderi’s application:

(b)  therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or

…

(h)  nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or

does the wearing of thermal undegarments constitute ‘therapeutic treatment’?

6.The answer to this question turns largely on the proper construction to be given to the term “therapeutic treatment”. As Comcare properly acknowledged, the Act is remedial in character and therefore should be interpreted liberally: Thiele v Commonwealth of Australia (1990) 22 FCR 342 at 346; Brennan v Comcare (1994) 122 ALR 615 at 621, Comcare v Levitt (1995) ALR 645 at 649, Whittaker v Comcare (1998) 28 AAR 55 at 67.

7.The Act defines “therapeutic treatment” to include “an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury”.  As is apparent, this definition merely lists some of the things that constitute “therapeutic treatment”. The list is non-exhaustive.

8.In Thiele Hill J considered whether the cost of installing a heated swimming pool at the injured worker’s home fell within paragraph (b) of the definition of “medical treatment” contained in the now repealed Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act). That provision was in identical terms to the equivalent provision in the current Act. 

9.Mr Thiele had suffered from longstanding severe back pain. His treating doctor recommended a regime of hydrotherapy. The weight of expert opinion was to the effect that hydrotherapy would have a therapeutic effect, in that it would alleviate Mr Thiele’s symptoms of cramps and pain, generally strengthen his muscles and make him better able to cope with pain.

10.His Honour thought there was “little doubt” that an exercise regime – including hydrotherapy carried out under the supervision of a doctor – would qualify as therapeutic treatment, but had “real difficulty” in regarding the pool itself as “being part of the treatment rather than as being the place at which the treatment is carried out”. He said (at 347):

In no ordinary use of language can the building of a swimming pool be seen itself to be treatment. The process of treatment commences only after the pool is in position.

11.Central to his Honour’s analysis was the meaning of the words “treatment” and “treat” which the Macquarie dictionary defined to mean (and which remains unchanged in the current edition in relevant respects):

Treatment: 1. The act or manner of treating…3. management…