RACHEL SCUDERI and COMCARE

[2009] AATA 985

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].......................

CATCHWORDS

COMPENSATION — Commonwealth employees — whether thermal undergarments purchased to alleviate symptoms of back injury are “medical treatment” and/or “therapeutic treatment” for purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth) — whether a “curative apparatus”

Safety, Rehabilitation and Compensation Act 1988 (Cth) — ss 4, 16 and 39

Thiele v Commonwealth of Australia (1990) 22 FCR 342

REASONS FOR DECISION

1.Mrs Rachel Scuderi applies to the Tribunal for review of a decision made by a delegate of Comcare that she is not entitled to receive compensation for the purchase of thermal undergarments.

2.On the recommendation of her GP, Mrs Scuderi commenced wearing thermal undergarments to ease her symptoms of lower back pain and stiffness. She finds that doing so eases those symptoms, especially in colder weather.

3.It is not in issue that Comcare is liable to pay compensation for injuries sustained by Mrs Scuderi in the early nineties, or that as a result of those injuries she continues to suffer symptoms of pain and stiffness in the lower back. Under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) Comcare’s liability extends to the costs of medical treatment obtained in relation to those injuries, being treatment that is reasonable for Mrs Scuderi to obtain.

4.The issues raised by Mrs Scuderi’s application are whether in the circumstances of this matter wearing “thermal undergarments” constitutes “medical treatment” within the meaning of the Act, and, if so, whether it is reasonable for her to obtain that “treatment”. Comcare argues that wearing the claimed thermal undergarments does not constitute “medical treatment” and furthermore, is not reasonably required. 

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 in the application of medicines, surgery etc.

Treat: (in a medical context) to deal with (a disease, patient, etc) in order to relieve or cure

12.His Honour concluded that what was contemplated by the term “therapeutic treatment” is “treatment in the sense of dealing with the patient to relieve or cure his illness” (at 347).

13.We accept that Mrs Scuderi’s treating doctors recommended that she wear thermal undergarments and that she finds that doing so alleviates her symptoms of pain and stiffness in the back. However, as Hill J noted in Thiele, it is not enough that “the thing” or “course” is “at the direction of a medical practitioner” for it to fall within paragraph (b) of the definition of “medical treatment”. The thing or course must of itself be “therapeutic treatment”:

It does not become treatment merely because it is advised, prescribed or ordered by a medical practitioner: Thiele v Commonwealth (at 348).

14.Thiele requires a distinction to be drawn between “the treatment” and the means by which that treatment is carried out. In short “treatment” encompasses an activity as distinct from an aid or appliance necessary to enable that activity to be carried out.  Even if it was accepted that the wearing of the garment constitutes therapeutic treatment, in our view the garment itself could not be considered to be therapeutic treatment.

15.For these reasons we conclude that the purchase of the undergarments does not fall within paragraph (b) of the definition of medical treatment.

Are thermal undergarments a “curative apparatus”?  

16.“Medical treatment” is defined to include a “curative apparatus”: paragraph (h). The term is not defined by the Act. The Macquarie Dictionary, 4^th Edition defines “curative” to mean “serving to cure or heal; relating to curing or remedial treatment; remedial; and apparatus as “an assemblage of instruments, machinery, appliances, materials, etc., for a particular use”. The Collins Australian Dictionary (6^th concise edition) relevantly defines “apparatus” as “(1) a collection of equipment used for a particular purpose; (2) a machine having a specific function: [eg] breathing apparatus”.

17.We have no difficulty in finding that when worn by Mrs Scuderi, the garment is curative in character. That wearing the garment does not cure or remedy her condition does not mean that it is not curative. It is enough, in our view, that it has a palliative effect and limits the deleterious effects of her condition. An apparatus that does nothing more than provide its user with short‑term relief from symptoms can therefore properly be described as “curative”.

18.The more difficult issue is whether the garment can be considered to be an “apparatus”. Plainly the garment could not be described as a “complex appliance”. (The Macquarie Dictionary defines an “appliance” to mean “an instrument, apparatus or device, especially one operated by electricity and designed for household use”.) Nor could it be described as “an assemblage of materials etc. for a particular purpose”.

19.It seems to us that the word “apparatus” connotes a machine, a mechanical device or contraption with some sort of mechanism operating to provide the relevant force or effect. Common items of apparel, such as undergarments, are ordinarily not operated mechanically nor rely for their effect on some sort of mechanism. A thermal undergarment has no real mechanism, as that word is commonly understood, inherent in its construction. Even if an elastic waistband and any other elastic material could be construed as a form of mechanism, they are so integrated into the material of the undergarment as to have become part of it and to have lost any separate mechanical identity.

20.One of the essential characteristics of machines and mechanical contraptions is that they must be operated in some fashion to achieve their effect. Energy or force external to the machine or device is required for this purpose. It is difficult to see how thermal undergarments can be said to “operate” or to “be operated”. It is worn and the effects are achieved passively rather than actively. Body heat is trapped under the layer of material but this requires no work on the part of the wearer or the undergarments.

21.In our view, thermal undergarments used for curative purposes is more akin to a bandage or heat pack or some other similar form of surgical or medical supply than to a device or apparatus.

22.In Thiele Hill J rejected the argument that a pool could be considered to be a curative apparatus. He said in obiter (at 348):

[I] am inclined to the view that an item would not properly fall within the concept of a curative apparatus unless the essential character of that item was its use in the curative process. It may, in a case such as the present, where the pool's specifications are set by a doctor, be possible to argue that the essential character of the pool is curative although, but for the rail needed for access, there would be nothing that would distinguish the pool required by the applicant from any domestic swimming pool.

23.This is a powerful statement on the subject and, absent, a highly persuasive argument to the contrary, we consider that it is appropriate for us to apply this approach.  It follows that for an apparatus to be regarded as a “curative apparatus” it ought be designed with curative purposes being at least one of its significant applications or must have been modified in some specific way for curative purposes that distinguishes it from domestic products. There is no evidence of such modification in this case.

24.For these reasons we are not satisfied that the claimed thermal undergarment is a “curative apparatus”.

Does s 39 of the act apply?

25.Section 39 of the Act imposes a liability on Comcare to pay for a number of items that fall outside the scope of the definition of “medical treatment”. These include “aids or appliances” for the use by the employee “reasonably required having regard to the nature of the employee’s impairment”.

26.This provision however only applies in respect of an employee who is undertaking or has completed a rehabilitation program: s 39(1)(b) of the Act. Mrs Scuderi does not satisfy this criteria. 

Conclusion

27.In our opinion the wearing of thermal undergarments does not constitute “therapeutic treatment obtained at the direction of a legally qualified medical practitioner” and the garment itself could not be considered to be a “curative apparatus”. Accordingly it is not “medical treatment” as defined by the Act. As Comcare’s liability under s 16 of the Act extends only to payment for “medical treatment” it is not liable for the costs incurred by Mrs Scuderi in purchasing thermal undergarments.

28.For these reasons we affirm the decision under review.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Britton and Dr Alexander, Member.

Signed:         ....................................[SGD].........................................

Associate

Date of Hearing  9 December 2009
Date of Decision  23 December 2009
The Applicant appeared in person
Counsel for the Respondent     Rhonda Henderson
Solicitor for the Respondent     Sparke Helmore