Rope and Comcare
[2003] AATA 822
•21 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 822
ADMINISTRATIVE APPEALS TRIBUNAL )
)A2002/155 &
)A2003/280
GENERAL ADMINISTRATIVE DIVISION ) Re ELEANOR ROPE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date21 August 2003
PlaceCanberra
Decision The Tribunal sets aside the decisions under review and in substitution therefor decides that:
A2003/280: the occasional PNI treatment is treatment that it was reasonable for the Applicant to obtain in the circumstances, and
A2002/155: it is reasonable for the Applicant to be reimbursed the cost of travelling to obtain occasional PNI treatment in Townsville.
The Applicant is entitled to costs as agreed or taxed in accordance with the General Practice Direction.
...............................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION – reasonable medical treatment costs – psychoneuroimmunology treatment – cost of travel to Townsville - whether reasonable medical treatment – whether expenditure reasonably incurred
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 sections 4, 16
AUTHORITIES
Comcare v Watson (1998) 46 ALD 481
Re Chowdhary and Comcare (AAT 13003, 22 June 1998)
Re Popovic and Comcare [2000] 64 ALD 171
Re Pembshaw and Comcare (2000) 60 ALD 279
REASONS FOR DECISION
August 2003 Mr S. Webb, Member APPLICATION A2002/155
1. This matter concerns an application by Mrs Eleanor Rope (“the Applicant”) for review of the decision of an authorised review officer (“ARO”) on 8 April 2002 (T21) to affirm the prior decision of a delegate of Comcare (“the Respondent”) on 4 February 2002 (T17). The ARO stated (T21 folios 59 and 60):
“On the available evidence Ms Just treated the employee from at least 1992 to mid 1999. From that time she has undergone counselling with Mr Hodge. …
Despite the extensive curriculum vitae provided in respect of Ms Just, there is no indication from the medical reports from Dr Welberry and Mr Hodge of precisely the nature of the treatment that is intended to be provided by Ms Just that cannot be provided in an area closer to the employee’s home. While Ms Just may have some expertise that is not readily available in Canberra I am not satisfied on the information provided to me that five sessions within one week would be of assistance to the employee’s condition.
Given that I am not satisfied that the proposed medical treatment is reasonable for the employee to undertake, I am also not satisfied that the costs of travelling between Canberra and Townsville are reasonably incurred expenditure for the purposes of obtaining medical treatment.”
APPLICATION A2003/280
2. As the applicant’s entitlement to compensation in respect of psychoneuroimmunology treatment was not squarely addressed on reconsideration of the Applicant’s travel claim (Application A2002/155), an ARO conducted an own motion reconsideration in order to facilitate the Tribunal’s jurisdiction. On 18 July 2003 the ARO affirmed the primary decision dated 8 February 2002 (T21), determining that (Exhibit R1):
“…the employee is not entitled to compensation under section 16 of the Act in respect of the treatment provided by Ms Just…”
3. A hearing before the Tribunal was convened in Canberra on 21 July 2003. At the hearing, the Applicant was represented by Ms J. Godtschalk, Counsel, and the Respondent was represented by Mr B. Dubé, Counsel. The Applicant gave oral evidence at the hearing as did Ms Anne Just and Mr Brian Hodge.
4. The following documents were taken into evidence:
Exhibit
Description
Date
T1 – T21
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1
Report by Dr William Knox
8 July 2003
A2
Report by Dr William Knox
11 July 2003
A3
Report by Ms Anne Just
28 October 2002
A4
Report by Ms Anne Just
10 March 2003
A5
Report by Ms Anne Just
12 June 2002
A6
Report by Mr Brian Hodge
10 March 2003
A7
Letter by Mr Brian Hodge
19 August 2003
A8
Letter by Mr Andrew Dillon to Mr Brian Hodge
27 February 2003
A9
Report by Dr Linda Welberry
11 March 2003
A10
Report by Dr Leon Le Leu
27 May 2003
A11
Email by Ms Anne Just to the Applicant
12 November 2002
R1
Reviewable decision by Comcare
18 July 2003
R2
Report by Dr John Saboisky
10 June 2003
R3
Comcare Claim Invoice Line Item List
21 August 2002
R4
Letter by the Applicant to Ms Anne Just
6 December 2002
ISSUES
5. The issues in this matter are whether:
(a)psychoneuroimmunology (“PNI”) counselling provided by Ms Anne Just constitutes medical treatment that it was reasonable for the Applicant to obtain in the circumstances; and
(b)the Applicant reasonably incurred expenditure travelling to Townsville to obtain PNI counselling.
LEGISLATION
6. The relevant legislation that applies in this matter is the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), especially sections 4 and 16.
7. Section 16 of the Act relevantly provides:
“16 Compensation in respect of medical expenses etc.
(1) 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.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
(4) An amount of compensation payable by Comcare under subsection (1) is payable:
(a) to, or in accordance with the directions of, the employee;
(b) if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost—to that other person; or
(c) if that cost has not been paid and the employee, or the legal personal representative of the employee, does not make a claim for the compensation—to the person to whom that cost is payable.
(5) Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person.
(6) Subject to subsection (7), if:
(a) compensation in respect of the cost of medical treatment is payable; and
(b) the employee reasonably incurs expenditure in doing either or both of the following:
(i) making a necessary journey for the purpose of obtaining that medical treatment;
(ii) remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
Comcare is liable to pay compensation to the employee:
(c) …
(d) in respect of the employee remaining for the purpose of obtaining the treatment—of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.
(7) Comcare is not liable to pay compensation under subsection (6) unless:
(a) the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or
(b) if the journey made by the employee involved the use of public transport or ambulance services—the employee's injury reasonably required the use of such transport or services regardless of the distance involved.
(8) The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:
(a) the place or places where appropriate medical treatment was available to the employee;
(b) the means of transport available to the employee for the journey;
(c) the route or routes by which the employee could have travelled; and
(d) the accommodation available to the employee.
(9) ....”
‘Medical treatment’ is relevantly defined at section 4(1) of the Act:
(1)In this Act, unless the contrary intention appears:
“medical treatment means:
…
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
…”
The term ‘therapeutic treatment’ is given the following meaning at s 4(1) of the Act.
“therapeutic treatment includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.”
BACKGROUND
8. The following information is provided by way of background and is not in contention.
9. The Applicant was involved in a motor vehicle accident on 9 March 1987. The Respondent accepted liability under section 14 of the Act for “muscular injury to the neck” on 23 June 1987. Subsequently, the Respondent accepted liability for “traumatic cervical spine” on 20 March 1994 and “psychiatric condition” on 13 July 2000 (T9, page 30).
10. The Applicant was employed by the Department of Education and Community Services as a child health coordinator, Senior Officer Grade C, until 1999, when she was retired on the grounds of invalidity.
11. Ms Anne Just provided psychotherapy treatment and pain management counselling to the Applicant from 1990 until 1999, when Ms Just left Canberra. The Respondent subsequently approved and paid for the Applicant to receive specialist PNI treatment from Ms Just in Townsville in 1999.
12. In May 2001, the Applicant was diagnosed with inter-ductal breast carcinoma, reflux oesophagitis, haemorrhoids and sigmoid diverticular disease. The Respondent accepted liability for reflux oesophagitis in July 2001.
13. On 5 December 2001, Mr Brian Hodge, psychologist, requested that the Respondent pay the costs associated with further PNI treatment with Ms Anne Just, clinical nurse psychotherapist (T13). Mr Hodge’s request was supported by Dr Linda Welberry, the Applicant’s treating general practitioner (T16).
14. On 4 February 2002, the Respondent determined that it would not reimburse the costs of such travel as they were unreasonable in the circumstances (T17). The Applicant requested a reconsideration of the determination, in consequence of which an ARO affirmed the decision on 8 April 2002 (T21).
15. The Applicant received further PNI treatment by Ms Just in March 2002 and September 2002.
EVIDENCE OF THE APPLICANT
16. The Applicant told the Tribunal that she first consulted Ms Just in 1990. She said she attended a self-help group conducted by Ms Just in 1993 or 1994 and received fortnightly counselling with Ms Just until May 1999. The Applicant stated that most of these sessions were paid for by the Respondent. It was her evidence that her regular counselling sessions with Ms Just did not involve PNI modalities, but that she was exposed to PNI treatment in group therapy sessions with Ms Just.
17. The Applicant gave evidence that she consulted Ms Sue Hayes, psychologist, and subsequently Mr Brian Hodge, psychologist, following Ms Just’s departure. She told the Tribunal she continues to receive regular treatment from Mr Hodge.
18. The Applicant’s evidence was that she travelled to Townsville for the purpose of consulting Ms Just in July 1999, on the recommendation of her treating general practitioner, Dr Linda Welberry. She stated that this was a “one off” treatment comprising pain management counselling on PNI principles. She told the Tribunal she received significant benefit from this treatment, experiencing reduced pain and an improved ability to cope thereafter. The Applicant stated that this treatment and the associated travel costs were paid for by the Respondent.
19. The Applicant stated that on returning to Canberra she continued to receive treatment from Mr Hodge. Her evidence was that she derives significant benefit from the treatment she receives from Mr Hodge, but that his treatment is different than that provided by Ms Just.
20. The Applicant told the Tribunal she maintained telephone contact with Ms Just, who suggested that it could be beneficial for the Applicant to have further PNI treatment. The Applicant’s evidence was that she discussed the matter with Mr Hodge and Dr Welberry, both of whom agreed and referred her to Ms Just for PNI treatment. She said she travelled to Townsville in March 2002 and attended Ms Just for PNI counselling for five consecutive sessions over the course of one week. Her evidence was that the Respondent paid for these consultations.
21. The Applicant told the Tribunal that the PNI treatment was “almost but not quite completed in March” and she consulted Ms Just again when she visited Townsville in September 2001, while on holiday in Queensland.
22. The Applicant’s evidence was that she experienced problems with breast cancer, severe reflux and gastric problems in 2002, and that her pain became progressively worse. She explained that she discussed the possible value of further PNI treatment with her treating medical practitioners and was referred to Ms Just for annual PNI treatment comprising five consecutive sessions in Townsville.
23. She stated that she did not know of any other PNI practitioner of Ms Just’s experience and standing and did not know of anyone offering PNI treatment in the Canberra region.
MEDICAL EVIDENCE
mr brian hodge
24. The Tribunal had before it reports by Mr Brian Hodge (Clinical Psychologist), dated 22 November 2000 (T10), 5 December 2001 (T13), 18 January 2002 (T15) and 10 March 2003 (Exhibit A6), and letters dated 25 February 2002 (T20) and 19 August 2002 (Exhibit A7).
25. Mr Hodge’s evidence was that he has treated the Applicant since 1999 on a fortnightly basis. He stated that he does not provide PNI counselling, as he does not possess the requisite skills and knowledge, stating (Exhibit A6):
(b)“I provide psychological treatment for pain control, stress and trauma and associated symptoms. I do not claim any expertise in “psychoneuroimmunology” which I understand was the treatment afforded to Mrs Rope by Ms Just in Townsville.
…
(d)… Mrs Rope’s accepted conditions involve a number of complex and inter-related symptoms. In my referral of her to Ms Just I had the intention that Ms Just’s expertise might assist with at least some of them.”
Mr Hodge told the Tribunal he has observed PNI treatment and has attended PNI workshops presented by Ms Anne Just. He admitted to knowing Ms Just professionally and gave evidence that she is held in high regard within her profession and has an "eminent reputation”. Mr Hodge’s evidence was that the aims of PNI treatment and the treatment he provides the Applicant “overlap but are not essentially the same”.. He explained that the techniques used in PNI are different in some aspects from those he employs in pain management, for example, he does not use visualisation exercises and biological techniques that are employed in PNI treatment. He described PNI as a “tremendously subtle technique” that requires knowledge of the endocrine, immune and nervous systems.
26. Mr Hodge told the Tribunal he was “particularly struck” by the change in the Applicant’s presentation after sessions with Ms Just, stating he witnessed a “quite remarkable change” in her appearance, grooming, colour and energy levels within two weeks of her return from treatment with Ms Just in Townsville.
27. It was Mr Hodge’s evidence that he was not aware of any PNI experts or practitioners in the Canberra region. Having detailed his professional background, he stated (Exhibit A7, page 2):
“In the light of that] background and experience and a close awareness of the expertise of Ms Just, I repeat that her particular expertise is not available in Canberra and probably not elsewhere in Australia either.”
ms anne just
28. The Tribunal had before it reports by Ms Anne Just (Clinical Nurse Psychotherapist) dated 12 June 2002 (Exhibit A5), 28 October 2002 (Exhibit A3) and 10 March 2003 (Exhibit A4). Ms Just gave oral evidence at the hearing.
29. Ms Just told the Tribunal she provided the Applicant with grief and crisis counselling that did not use PNI modalities between 1990 and 1999, when she moved to Townsville for professional reasons.
30. Ms Just explained that PNI is becoming “more recognised” and is a 30 year old science. She gave evidence that the PNI treatment she provided the Applicant after 1999 was a supplement to treatment the Applicant was receiving from other medical practitioners. Her evidence was that Mr Hodge took over the role of providing grief and crisis counselling to the Applicant in 1999.
31. Ms Just stated (Exhibit A3, pages 1 and 2):
“(a) + (b) The practice of psychoneuroimmunology (PNI) is the application of research from this field of science to psychotherapy. In brief, ‘Immune System Counselling’ focuses on identification of emotions, cognitive patterns and behaviours which, according to research might either compromise or enhance immune system function. This is done with education about the immune system and the interactions of this system with psychophysiological function. Integrated into the counselling are the psychoneuroimmunological strategies of correct respiration, relaxation, visualisation, positive affirmations and meditation shaped to each person.
…
(i) … Mrs Rope has reported short-term benefits from this treatment.
(ii) … Mrs Rope [sic] life stresses remain high and compromise the long-term benefits of this treatment ….
(iii) I do not know Mr Hodge’s form of pain management counselling applied to Mrs Rope. …
(c) … The treatment provided in March and May 2002 was directed to long-term improvement in Mrs Rope’s pain and suffering condition.
…
(e) The treatment provided in Canberra had a main focus on assisting Mrs Rope through the many challenges arising from her impairment and invalidity issues that she was facing during those years. The treatment provided in March and May 2002 had a main focus on Immune System Counselling.
(f) I do not know of alternative practitioners. The concept of ‘Immune System Counselling’ was developed by me…”
32. Ms Just concluded (Exhibit A4):
“c+d) … I perceive that the compensable and non- compensable conditions have become inseparable. Given that Mrs Rope’s ill-health started following the MVA 9 March 1987, I perceive that the treatment provided in March and May 2002 was directed to her compensable condition.”
33. Ms Just’s evidence was that Dr Welberry and Mr Hodge referred the Applicant to her for treatment in Townsville, and that in 2002 she had a telephone conversation with Mr Hodge about the Applicant: “They wanted me to see [the Applicant]. They contacted me one or two months before she came [to Townsville].”
34. In cross examination, Ms Just agreed that she is not aware of other medical practitioners using PNI modalities in Australia and that this technique was based on her professional experience over 20 years and 30 years of scientific research. She gave evidence that the treatment “can be life changing in even one hour of psychotherapy”, concluding that five sessions per year may be sufficient. Ms Just accepted that PNI is research based and controversial to the extent that it focuses on a link between pain and the immune system, commenting that if the immune system does not function well then a person’s pain experience may be exaggerated and that pain is an immunological suppressant.
dr john saboisky
35. The Tribunal had before it a report by Dr John Saboisky (Consultant Psychiatrist) dated 10 June 2003 (Exhibit R2).
36. Dr Saboisky stated (Exhibit R2, pages 5 and 6):
“I only have a passing acquaintance with psycho-neuro-immunology but … quite clearly it … has some considerable currency. …
The treatment of chronic pain should involve bio-psycho-social components. In other words biological factors, psychological factors and social factors need to be addressed. By biological I refer to any neurological or immunological or other processes which are found to be relevant.
…
… It seems to me that regardless of the over-arching theoretical basis correct respiration, relaxation, visualisation, positive affirmations and mediations are standard treatments provided by clinical psychologists for chronic pain conditions. In what [Ms Just] has written she does not really provide any evidence that psycho-neuro-immunology or what she does differs in any substantial way from what Brian Hodge can provide her. …
…
The short-term benefits [of treatment by Ms Just] are that Ms Rope will feel temporarily better for having made contact with her long-term therapist. The benefits however I do not believe will continue long term because the mainstay of her psychological treatment has been the maintenance of a positive attitude towards her disability. Brian Hodge clearly provides that for her, as did Ann Just prior. Despite a decade of treatment the benefits have not translated into a restoration of significant functional improvement.
…
Without a therapeutic alliance pain management counselling is doomed to fail. She has that very special relationship with Ann Just.”
dr leon le lou
37. The Tribunal had before a report by Dr Leon Le Lou (Occupational Physician) dated 27 May 2003 (Exhibit A10). Dr Le Lou treated the Applicant on 6 May 1997 and on several occasions thereafter. Dr Le Lou stated (Exhibit 10, page 2):
“One thing that has been very helpful for [the Applicant] has been her consecutive sessions in 1999 and 2002 with Ms Ann Just who works in the field of psychoneuroimmunology. …
…
I feel it is very beneficial for Ms Rope to see Ms Just once a year and for Ms Rope to know this is available is likely to be very therapeutic. …
Mrs Rope has a complex pain condition for which Ms Just’s therapy can be helpful. A wide range of other therapeutic approaches has been tried without much success. Mrs Rope does respond well to Ms Just’s therapy. …
… I know of nobody in Canberra or within a reasonable distance of Canberra who is using the psychoneuroimmunologic approach. In saying this, though, I realise that Mr Brian Hodge has been providing very useful treatment to her which complements the treatment from Ms Just and is available locally.
Hence I strongly support Mrs Rope consulting Ms Just on a yearly basis for five consecutive sessions each year.”
SUBMISSIONS, CONSIDERATION OF THE ISSUES AND FINDINGS
38. The Tribunal carefully considered all of the evidence, the submissions of the parties, and the relevant legislation and caselaw.
39. The Applicant’s compensable conditions are “muscular injury to the neck”, “traumatic cervical spine” associated with a chronic pain syndrome and “psychiatric condition” associated with depression. The Applicant was diagnosed with “severe reflux symptoms with secondary reflux oesophagitis” in July 2001 following a five-year history of such complaints (T12), which the Respondent subsequently accepted as compensable. It is common ground that the Applicant’s compensable conditions are ongoing and require further medical treatment.
40. The issue for determination by the Tribunal is whether the occasional PNI treatment the Applicant obtained from Ms Just in Townsville is reasonable medical treatment pursuant to s 16 of the Act. The Respondent conceded that, if this issue is resolved in the Applicant’s favour, the subsequent issue, concerning the cost of travel associated with receipt of the PNI treatment in Queensland, must also resolve in the Applicant’s favour.
41. The term “medical treatment” is defined at section 4 of the Act. The Applicant relied on part (b) of the definition concerning “therapeutic treatment obtained at the direction of a legally qualified medical practitioner”, where “therapeutic treatment” means, inter alia, “treatment given for the purpose of alleviating an injury”.. It is clear that a treatment which alleviates an injury is one that mitigates or lessens that injury, or makes it easier to be endured (definition of “alleviate” taken from Macquarie Dictionary, Revised Third Edition, 2002). It follows that a treatment that provides relief from pain arising from an injury or a condition alleviates that injury or condition. Finn J. said in Comcare v Watson (1998) 46 ALD 481 at 484:
“A course of treatment designed to, or aimed at, alleviating the pain caused by an injury or disease is, in my view, properly to be regarded as therapeutic treatment.”
42. In the case at hand, it is clear from Ms Just’s evidence that the occasional PNI treatment she provided the Applicant was intended to reduce pain and suffering (Exhibit A3, page 2). Dr Welberry, Dr Knox and Dr Le Lou gave evidence that the Applicant benefits from the occasional PNI treatment provided by Ms Just. Mr Hodge gave evidence that the Applicant’s response to the PNI treatment was “quite remarkable” and she experienced some relief from pain. The Applicant’s evidence is unequivocal in this regard. There is no evidence, however, that the effects of the PNI treatment are long lasting or provide other than short-term relief. Nonetheless, there can be no doubt that the PNI treatment provided by Ms Just was “therapeutic treatment” and the Tribunal so finds.
43. The Respondent asserted that the PNI treatment provided by Ms Just was not obtained “at the direction of” a legally qualified medical practitioner, contending that the treatment did not form part of a plan for the permanent improvement of the Applicant’s compensable conditions and was pursued by the Applicant. The interpretation of the term “at the direction of”, contended for by the Respondent, imparts a requirement for supervision whereby the efficacy of the treatment may be monitored. The Tribunal is not persuaded by this submission. In Watson (supra) Finn J. considered the meaning of the term and observed at ALD 484:
“The formula, "at the direction of", in this setting contains an imperative element - by which I mean a doctor prescribes a specified course to be taken. That course in turn must be therapeutic treatment. In Thiele's case, above, for example, the doctor prescribed (inter alia) the construction of a swimming pool of particular specifications for the purpose of swimming exercises of a person suffering a spinal injury. And the issue was not whether a direction had been given to construct a pool, but rather whether the provision of the pool was itself therapeutic treatment. Justice Hill held it was not and, importantly, that:
“… it does not become treatment merely because it is advised, prescribed or ordered by a medical practitioner": Thiele v Commonwealth of Australia, at AAR 382.
For my own part I would be prepared to adopt the "advised, prescribed or ordered" terminology of Hill J as representing the proper meaning to be given to the "at the direction of" formula in the s4 definition - these terms having relatively well understood and not greatly dissimilar connotations in the context of doctor-patient communications as to the undertaking of treatment for an injury. In consequence I reject not only the tribunal's apparent construction of the formula as meaning "guidance" - I also reject the applicant's submission that direction requires monitoring, control or management by a doctor.
…
The only additional comments I would make on this are, first, that therapeutic treatment in this setting is a purposive activity - ie its purpose or object must be the treatment of the particular injury in question. If such is not the actual, specified purpose of the activity then notwithstanding its beneficial effects, it will not relevantly be therapeutic treatment for present purposes. Second, because such treatment is purposive, an indicator that a doctor-prescribed activity is intended, relevantly, to be therapeutic will commonly be the adoption of some level of monitoring of it to gauge whether it is appropriately adapted to its purpose or is effective in some degree in realising that purpose. Obviously the nature and extent of such monitoring will be affected significantly by the nature of the treatment. Some forms of treatment may require close checking; others may well be self-monitored, once prescribed. I mention this simply to caution against the view that a doctor's positive and active control and management are indispensable elements in treatment.”
44. In the case at hand, the Tribunal is satisfied that Mr Hodge and Dr Welberry recommended and referred the Applicant to treatment by Ms Just on an occasional basis. This being the case, the Tribunal finds that the treatment was provided at their direction. There can be no doubt that the Applicant was active in her pursuit of treatment by Ms Just, as contended by the Respondent, and that her interest in PNI treatment is ongoing (Exhibit R4). This, however, does not disturb the finding that the course of PNI treatment was provided by Ms Just at the direction of the Applicant’s treating medical practitioners. Mr Hodge, Dr Welberry and Ms Just are legally qualified medical practitioners.
45. It follows that the occasional PNI treatment provided to the Applicant by Ms Just in Townsville is consistent with “medical treatment” as defined at section 4 of the Act.
46. The question of reasonableness remains pursuant to section 16 of the Act. It is to this question the Tribunal now turns. The Respondent submitted that the treatment was not reasonable because it was not a part of a plan for the permanent improvement of the health of the Applicant, referring the Tribunal to the cases of Re Chowdhary and Comcare (1998) AATA 13003 and Re Popovic and Comcare (2000) 64 ALD 171. In the former case, the Tribunal observed at paragraph 53:
“While provision of temporary relief from pain through physiotherapy will in many circumstances qualify as medical treatment which it is reasonable for an employee to obtain, there will in some cases come a point where it is no longer reasonable unless it is part of a plan for permanent improvement in the health of the employee; (cf Re Payne and Comcare (Decision No 11624, 19 February 1997, at para 21ff).”
In Mrs Chowdhary’s case, the Tribunal found that the physiotherapy treatment she had been receiving was not reasonable, observing that there was “no evidence of any plan to have the physiotherapy treatment accompanied by a course of physical exercise such that the applicant might become re-conditioned and better able to cope with pain and manage a return to work”.. While the facts in the instant case differ from those in Chowdhary (supra), it must be accepted that the indiscriminate use of a particular modality of treatment may not be reasonable in some cases unless it is part of a carefully appraised course of treatment. In the case at hand, the evidence is that the occasional PNI treatment provided by Ms Just in Townsville was consistent with and supplementary to the course of psychological counselling provided by Mr Hodge and the treatment provided by Doctors Welberry and Le Lou. The Tribunal so finds. The Tribunal is satisfied that the occasional PNI treatment was not indiscriminate and was part of a course of treatment to alleviate the symptoms of the Applicant’s compensable injuries and to improve her ability to cope with those injuries.
47. In the case of Re Popovic (supra) the Tribunal commented at paragraphs 28 and 29:
“28. …The physiotherapy he was having could not improve him in the long term, has limited, if any, short term benefit, and may in fact be contra-indicated. Any therapeutic benefit he received was small and short-lived. We accept that pain relief, even short-term relief or reduction in pain, can be therapeutic (Comcare v Watson (1997) 73 FCR 273 at 276 per Finn J). However, in this case any benefit is outweighed by the counter-productive effect of it leading the applicant to a dependent state, inhibiting his ability to learn to cope, and to embark on pain management programs to assist him with that object. Taking into account the whole of the evidence before us, we consider that in the applicant’s case it was not in his best interest for passive physiotherapy modalities to have continued beyond 16 September 1997: (Re Jorgenson and Commonwealth (1990) 23 ALD 321).
29. Even if we found that the short-term therapeutic benefit derived by the applicant was therapeutic for the purposes of the Act, in our opinion it is not reasonable treatment in the circumstances for the reasons mentioned above. To the extent the applicant derives some therapeutic value from the psychological effect of receiving the treatment, psychologists could better provide this in an appropriately devised pain management plan.”
Popovic’s case is clearly distinguished on the facts from the case at hand. In the former, the passive physiotherapy treatment Mr Popovic received was found to be counter-productive and an inhibition to his ability to learn to cope, whereas in the latter case the PNI treatment provided by Ms Just was clearly intended to increase the Applicant’s ability to learn to cope with her compensable conditions and their effects.
48. The Respondent contended that the PNI treatment provided by Ms Just was without scientific merit and could not be clearly distinguished from psychological counselling provided by Mr Hodge, or from treatment that is available from other clinical psychologists on the Canberra region. On the evidence of Mr Hodge, Dr Welberry and Dr Le Lou, the PNI treatment provided by Ms Just has a specialist character and is of therapeutic benefit to the Applicant in the management of pain arising from her compensable conditions. The Tribunal so finds. Dr Saboisky commented that the treatment of chronic pain should involve bio-psycho-social factors and concluded that (Exhibit R2, page 6):
“There is no evidence in the literature or from what I have read from Ann Just, which would indicate that she has anything superior to provide and which could be reasonably obtained in Canberra.”
Dr Saboisky concluded, however, that the Applicant has a beneficial “therapeutic alliance” with Ms Just without which “pain management counselling is doomed to fail” (Exhibit R2, page 7). The Tribunal accepts that Mr Hodge also has a positive therapeutic relationship with the Applicant, but notes that his evidence was that he could not provide PNI treatment because he did not have the specialist PNI training, knowledge or experience, especially in relation to biological factors. The Tribunal is satisfied that the PNI treatment provided by Ms Just is distinguished from the psychological counselling provided by Mr Hodge.
49. The evidence before the Tribunal indicates that there are no medical practitioners using PNI modalities in the Canberra region. The Respondent has failed to substantiate its assertion that equivalent treatment to that provided by Ms Just is available in Canberra. This being the case the Respondent’s case must fail and the decision under review must be set aside: Re Pembshaw and Comcare (2000) 60 ALD 279.
50. The Tribunal finds the occasional PNI treatment provided to the Applicant by Ms Just is medical treatment that it is reasonable for the Applicant to obtain in the circumstances.
51. This being the case the Respondent conceded that it would be reasonable for the Applicant to be reimbursed for expenses incurred obtaining the treatment, including any necessary journeys therefor. The Tribunal so finds.
decision
52. The Tribunal sets aside the decisions under review and in substitution therefor decides that:
A2003/280: the occasional PNI treatment is treatment that it was reasonable for the Applicant to obtain in the circumstances, and
A2002/155: it is reasonable for the Applicant to be reimbursed the cost of travelling to obtain occasional PNI treatment in Townsville.
53. The Applicant is entitled to costs as agreed or taxed in accordance with the General Practice Direction.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member
Signed: C. Gregson
AssociateDate/s of Hearing 21 July 2003
Date of Decision August 2003
Counsel for the Applicant Ms J Godtschalk
Counsel for the Solicitor Mr B. Dubé
Solicitor for the Respondent Ms K Arnold
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