Reilly and Military Rehabilitation and Compensation Commission
[2007] AATA 1826
•4 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1826
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2006/218
GENERAL ADMINISTRATIVE DIVISION ) Re KATHRYN REILLY Applicant
And
MILITARY REHABILITATION & COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date4 October 2007
PlaceCanberra
Decision The decision under review is set aside and in place thereof the Tribunal decides that Ms Reilly is entitled to compensation in relation to the travel necessary for her to obtain medical treatment from Dr Proctor.
..............signed................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - medical treatment - cost of travel - reasonableness - places where treatment available – personal choice – necessary journey - cost reasonably incurred - decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 16, 67
Re Stevens and Comcare AATA 11961, 19 June 1997, V96/1565
Re Corfield and Australian Postal Corporation [2000] AATA 533
Re Mecke and Comcare [2006] AATA 593
Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16
REASONS FOR DECISION
4 October 2007 Mr S. Webb, Member 1. Kathryn Reilly was employed by the Australian Defence Force. She was subject to violence and claimed compensation in relation to a psychological injury. Ultimately her claim was successful. She claimed compensation for medical treatment. This was accepted but her claim relating to the cost of travel to obtain the particular treatment was rejected. Unhappy with that decision, Ms Reilly requested reconsideration. The decision was affirmed. Still unhappy, Ms Reilly has placed the matter before the Tribunal for review.
2. The Parties tendered an agreed statement of facts.[1] As I am satisfied that the agreed facts are open on the evidence before me, I will proceed on the basis of those facts as found. It is not necessary to set out the contents of Exhibit A here.
[1] Exhibit A.
3. The issue to be determined is whether Ms Reilly is entitled to compensation in relation to the cost of travelling to obtain approved medical treatment from her treating psychiatrist, Dr Robert Proctor.
4. In the Commission’s submission, it is not necessary for Ms Reilly to travel to Castlemaine to obtain medical treatment from a psychiatrist because there are many practising psychiatrists with experience treating post traumatic stress disorder in Melbourne.
5. As will appear I do not agree.
6. The test to be applied is whether the specific costs of making a necessary journey to obtain medical treatment from Dr Proctor in Castlemaine were reasonably incurred pursuant to subs 16(6) of the Safety, Rehabilitation and Compensation Act 1988 (the Act). When determining the matter, I must have regard to the matters set out at subs 16(8) of the Act. Of those matters, paragraph 16(8)(a) is particularly relevant in the present case: “the place or places where appropriate medical treatment was available to the employee”.
7. Ms Reilly consulted Dr Proctor on 31 occasions, making 20 return trips to Castlemaine from her home in North Balwyn in private transport and staying overnight in Castlemaine on 11 of those journeys in the period from 3 October 2005 to 5 October 2006.[2] Ms Reilly’s evidence is that she has obtained medical treatment from Dr Proctor since 5 October 2006. Her treatment is ongoing, but she presently has no appointments scheduled.
[2] Exhibit A; Exhibit R2.
8. The return journey from North Balwyn to Castlemaine is a round trip of approximately 256.8 kilometres. Applying the formula set out at paragraph 16(6)(c), the compensation cost of each journey is $121.54. No evidence was adduced concerning the cost of accommodation expenses Mr Reilly incurred on the 11 occasions when she stayed overnight in Castlemaine. The reason given for such overnight stays is that she had some consultations with Dr Proctor on consecutive days.
9. It is agreed that Dr Proctor provided Ms Reilly with necessary treatment for her accepted injury, chronic post traumatic stress disorder. I am reasonably satisfied that Ms Reilly developed a therapeutic relationship with the Doctor and that the treatment she obtained was reasonable, appropriate and of therapeutic benefit. The Commission has paid Dr Proctor’s treatment accounts.[3]
[3] Exhibit A; Exhibit R3.
10. Ms Reilly gave sworn evidence that she has difficulty trusting people as a result of her compensable injury. This difficulty was exemplified, she asserts, by a failed consultation she attended with Dr White, a psychiatrist in Canberra who, she says, was not suitable for her. Ms Carmel O’Sullivan (treating psychologist) gave evidence that she referred Ms Reilly to Dr White for assessment and treatment. Her evidence supports Mr Reilly’s account that the initial consultation with Dr White broke down irreparably and that Ms Reilly has difficulty trusting people as a result of her injury. Dr Alistair Neill (treating general practitioner) gave evidence that Ms Reilly is a difficult person to treat as a result of her injury and her personality, and that she finds trust difficult. I am reasonably satisfied that trust is a difficult issue for Ms Reilly as a result of her injury and that because of this she has difficulty approaching new treatment providers in relation to her injury. In consequence, Ms Reilly relies on people in whom she trusts to assist her and for treatment. I so find.
11. Ms Reilly says that she asked Ms O’Sullivan for a referral to a suitable psychiatrist in Melbourne, but Ms O’Sullivan was unable to assist. Following her relocation to Melbourne in 2002, Ms Reilly obtained treatment from Dr Neill whom she had known since childhood and trusted. Dr Neill referred her to Mr Keith Wray, a psychologist, from whom Ms Reilly obtained some treatment. However, Ms Reilly continued to consult with Ms O’Sullivan in Canberra, using the telephone. Dr Neill’s evidence, which I accept, was that such consultations occurred “frequently”. I note in passing that Dr Neill’s clinical notes reveal that Ms Reilly’s post traumatic stress disorder flared up in May 2005 and that Dr Neill discussed Ms Reilly’s case with Ms O’Sullivan on 8 August 2005.[4]
[4] Exhibit R1.
12. On Ms O’Sullivan’s evidence, Ms Reilly required psychiatric treatment when she was in Melbourne. However, it appears that Ms Reilly did not obtain any such treatment for a number of years, from 2002 to October 2005. Ms Reilly attributes the delay to issues of trust and her difficulty forming new relationships with medical practitioners in relation to her injury. Nevertheless, she maintains that she attempted to find a suitable psychiatrist using the telephone book, although her injury made this difficult and unsuccessful. I accept that she did, but without conviction. Ms Reilly gave evidence which I accept, that a retired psychiatrist friend, Dr Alex Harman, whom she had known for many years and trusted, recommended Dr Proctor highly as suitable for her condition and personality.
13. Dr Neill gave evidence that Ms Reilly raised the possibility of a referral to Dr Proctor, whom he had not heard of previously. I so find. I accept Ms Reilly’s evidence that she discussed Dr Proctor’s experience and prospective suitability with Dr Neill. I am reasonably satisfied that she also discussed the prospect of a referral to Doctor Proctor with Ms O’Sullivan. Dr Neill’s evidence is that he was not looking for a psychiatrist to treat Ms Reilly at that time, but following discussion with her, he was happy to make the referral, and did. I accept that evidence and so find.
14. Ms Reilly attended on Dr Proctor and found him suitable and appropriate. Even though Dr Proctor practices in Castlemaine and Ms Reilly lives in North Balwyn, in Melbourne, she has travelled, at some inconvenience to herself, to obtain treatment from the Doctor over an extended period, which is ongoing.
15. Dr Proctor’s treatment has been beneficial to Ms Reilly’s recovery and I accept that disrupting the therapeutic relationship Ms Reilly has developed with the Doctor is likely to have deleterious effects on her recovery. On 7 December 2006, Dr Proctor reported:
“… Because of [Ms Reilly’s] experiences in the past, matters of trust are an essential precursor to any useful therapy and are matters of great delicacy.”[5]
[5] Exhibit A1.
On 21 December 2006, Dr Proctor reported:
“[Ms Reilly] saw me for a total of 27 times between December 5th 2006 and the last visit on October 5th 2006 and made significant progress during this time to begin to move on in her life.”[6]
[6] Ibid.
On 27 January 2007, Dr Neill reported:
“Not only has Dr Proctor had a long experience in treating patients with PTSD but he has developed a relationship of confidence and trust with Kathryn and she has found his support, advice and counselling of great help and value in her rehabilitation.
To question this professional relationship is most unfortunate and destabilising and could be disastrous in her recovery, and in fact could endanger her very life if this support was removed.”[7]
[7] Exhibit A2.
On 25 September 2007, Dr Neill reported:
“I have been very pleased with [Dr Proctor’s] expert help in managing Kathryn’s complex emotional problems, and he has developed a relationship of trust and support which has been very valuable in her Rehabilitation.
I did not take any steps to determine whether any other Psychiatrists closer to Melbourne were not suitable, but I know that if this source of Professional help was [sic] denied or stopped it could have a profound and detrimental effect on her mental state.”[8]
On 10 July 2007, Ms O’Sullivan reported:
“… I recognise that Dr Proctor is in country Victoria but it is important for Ms Reilly to feel comfortable with her treating clinicians. All the previous psychiatrist [sic] that she has attended were clearly unsuitable for her and having found Dr Proctor it would be detrimental to her wellbeing if she had to attend someone else.”[9]
[8] Ibid.
[9] Exhibit A3.
16. The question of necessity for the travel requires consideration of whether a suitable alternative to the treatment in question is available at a reduced distance. I accept the Commission’s submission concerning the availability of practising psychiatrists in with experience treating post traumatic stress disorder within 25 kilometres or less of Ms Reilly’s home in Melbourne.[10] I also accept that some of these psychiatrists may practice psychotherapy. Regarding that matter, it appears to me that availability alone is not determinative of the question of necessity in this case. The matters set out at subsection 16(8) are described inclusively. The list is not exclusive of other matters that go to the necessity for the journey and the reasonableness, or otherwise, of the costs incurred.
[10] Exhibit R4.
17. In this matter, Ms Reilly’s difficulty with trust and forming new treatment relationships as a result of her injury is a matter that is relevant to the issue of necessity. So too are the efforts she made within the constraints of her injury to identify a suitable psychiatrist, and the efforts she made, subsequently, to obtain treatment from that Doctor at some inconvenience to herself. Furthermore, the fact that Dr Neill referred Ms Reilly to Dr Proctor cannot, I am satisfied, simply be dismissed as a matter of convenience. Having heard Dr Neill’s evidence, I am satisfied that he exerted his professional mind to the question of referring Ms Reilly in the manner she requested. I am satisfied that he applied his knowledge of Ms Reilly’s injury and her personality, and it can be inferred that he applied his knowledge of other psychiatrists to whom he may, from time to time, refer a patient, and considered the distance involved, before he came to a professional judgement about the appropriateness of the referral in question. I note that Dr Neill’s clinical note dated 3 October 2005 refers to a different psychiatrist, Dr Andrew Troy.[11] It is unclear whether Dr Neill consulted Dr Proctor, or in any way investigated the Doctor’s reputation, qualifications or expertise in treating patients suffering post traumatic stress disorder, before referring Ms Reilly into his care. Nevertheless, Dr Neill impressed me as a professional doctor who considered the best interests of his patient, Ms Reilly, in relation to the matter of referral.
[11] Exhibit R1.
18. Weighing these various matters and the relevant evidence, I am reasonably satisfied and find that it was necessary for Ms Reilly to travel to Castlemaine to obtain medical treatment from Dr Proctor.
19. The Commission drew my attention to the cases of Re Stevens and Comcare[12], Re Corfield and Australian Postal Corporation [2000][13] and Re Mecke and Comcare [2006][14]. In Stevens’ case, the particular treatment in question was treatment that may be provided by a general practitioner, and after moving the place of his residence, Mr Stevens did not genuinely seek out a new general practitioner. In Corfield the particular treatment in issue was a form of physiotherapy. The Tribunal found that after a long period of travelling to obtain the physiotherapy treatment, it was no longer reasonable to do so as other physiotherapists who were closer provided the treatment, and that Mr Corfield knew how to apply the treatment himself. In Mecke, the treatment was a form of chiropractic or manual therapy. Mr Mecke moved to an area in which the Tribunal found many practitioners provided manual therapies of equivalence. Furthermore, Mr Mecke’s treatment was in relation to a back injury and the Tribunal found that it was not reasonable for him to travel 120 kilometres to obtain treatment that was otherwise available to him in his local area. As can be seen, each of these cases is distinguished on their particular facts.
[12] AATA 11961, 19 June 1997, V96/1565.
[13] AATA 533.
[14] AATA 593.
20. As it appears to me, travelling to Castlemaine for treatment by Dr Proctor was a necessity for Ms Reilly. It is possible, even likely, that other treatment of equivalence is available in Melbourne. However, such treatment is not available to Ms Reilly because of the trust difficulties she experiences as a result of her injury.
21. I do not accept that Ms Reilly selected Dr Proctor by a simple exercise of choice. That is not consistent with the evidence of Dr Neill and Ms O’Sullivan. I am satisfied that Ms Reilly consulted people she trusted and then followed their advice. It is significant that two of the three people she consulted were her treating therapists and the third was an old family friend who was a retired psychiatrist. I note in passing that Dr Harman was not called to give evidence. That is perhaps because Ms Reilly only provided information concerning Dr Harman at the last moment. To that extent this was an element of surprise brought against the Commission. Nevertheless, counsel for the Commission, Mr Dube, made no applications or submissions for relief from any adverse effect of that surprise.
22. The test of reasonableness is an objective one that imports elements of rationality and proportionality (Bropho v Human Rights and Equal Opportunity Commission [2004][15]).
[15] FCAFC 16, at 75.
23. Ms Reilly had previously, unsuccessfully, attempted to obtain psychiatric treatment. She found it difficult to trust people as a result of her injury, especially treating doctors in relation to that injury. The availability of psychiatric treatment for Ms Reilly is constrained and curtailed by the adverse effects of the injury on her ability to trust people. She needed psychiatric treatment. She genuinely made efforts to find a suitable psychiatrist to treat her. She relied on information and advice from people she trusted in that regard. Her treating doctor discussed the issue of referral to Dr Proctor with Ms Reilly and exercised professional judgement when making the referral. The treatment she obtained from Dr Proctor was beneficial to her recovery. Disruption of that treatment is likely to be detrimental to Ms Reilly’s mental health. She has exerted considerable effort to obtain the particular treatment, travelling to Castlemaine for that purpose at some inconvenience to herself. Plainly enough, in the context of her injury, obtaining treatment from Dr Proctor is open to rational explanation, and it is rational when the facts are considered.
24. Ms Reilly travelled by private car to Castlemaine in order to obtain treatment. The particular mileage is known and agreed. On occasion she stayed overnight when she had appointments with Dr Proctor on consecutive days. There is no evidence concerning the particular accommodation or the related cost. Nevertheless, as it appears to me these are not costs that were incurred unreasonably when undertaking the journeys necessary for Ms Reilly to obtain medical treatment. The costs incurred are in proportion to the activity undertaken.
25. For these reasons I find that it was reasonable for Ms Reilly to undertake travel that was (and is) necessary for her to obtain medical treatment.
26. It follows that the decision under review is set aside and in place thereof the Tribunal decides that Ms Reilly is entitled to compensation in relation to the travel necessary for her to obtain medical treatment from Dr Proctor.
27. The parties have 14 days in which to file submissions in relation to orders for costs pursuant to subs 67(8) of the Act. If no submissions are received, the Commission will be ordered to pay Ms Reilly’s reasonable costs in these proceedings as agreed or taxed.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: ......signed.................................
Jane Gribble
AssociateDate of Hearing 27 September 2007
Date of Decision 4 October 2007
Solicitor for the Applicant Nigel Gabbedy
Pappas J- Attorney
Counsel for the Respondent Ben Dube
Solicitor for the Respondent Andrew Shelley
Sparke Helmore
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