Rope and Comcare (Compensation) - [2024] AATA 3005

Rope and Comcare (Compensation) [2024] AATA 3005 (23 August 2024)
Division:GENERAL DIVISION
File Number(s): 2022/3101, 2022/3595, 2022/3596
Re:Eleanor Rope
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President O'Donovan
Date:23 August 2024
Place:Canberra

That the decision under review in application 2022/3101 be varied and the applicant’s claim for reimbursement of the identified philosophy textbook be accepted.
The decisions under review in applications 2022/3595 and 2022/3596 are affirmed.
…………….[SGD]…………….
Deputy President O'Donovan
Catchwords
COMPENSATION – somatic symptom disorder – whether materially contributed to by employment – three separate claims – claim for reimbursement for a philosophy textbook – claim for enrolment at the University of the 3^rd Age – claim for psychological treatment –whether medical treatment that is reasonable to obtain – decisions under review affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988
Cases
Rope and Comcare [2020] AATA 59
Woodhouse v Comcare [2021] FCAFC 95
REASONS FOR DECISION
Deputy President
Introduction

The applicant has filed three applications with the Administrative Appeals Tribunal (Tribunal) in relation to claims for compensation under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).
The three decisions under review rejected the following claims made by the applicant:
(a)2022/3101: reimbursement for a philosophy textbook in the sum of $20.00;
(b)2022/3595: approval of attendance at classes with the University of the Third Age;
(c)2022/3596: approval of further psychological treatment.
Background
Mrs Rope has a longstanding pain condition, which has both physical and psychological components. She has sought to manage her symptoms in a variety of ways over many years and Comcare has, by and large, been prepared to pay compensation in relation to the treatments she has sought. However, in recent years Comcare has taken the view that the treatments are not effective in the sense that they have not brought about any discernible improvement in Mrs Rope’s symptoms, beyond perhaps some temporary relief of acute symptoms. Comcare has taken the view that the treatments do not constitute medical treatment that it is reasonable for Mrs Rope to obtain. Mrs Rope’s view is that while her condition does not improve as a result of the treatment, in the absence of the treatment her symptoms worsen. Consequently, it is reasonable for her to obtain the treatment.
The three reviewable decisions that are the subject of this review can be summarised as follows:
(a)Comcare declined liability for practical philosophy classes and related reading in 2020. The classes were an activity recommended by Mrs Rope’s GP. Mrs Rope had been attending the classes weekly since 2012. Comcare found that the philosophy classes were medical treatment but the related reading material was not. Comcare found that the treatment was obtained in relation to Mrs Rope’s medical condition, but the classes were not reasonable treatment in the circumstances. In particular, the treatment was not shown to be effective at empowering the applicant towards self-management. In her statement of facts issues and contentions filed during the course of these proceedings, the applicant conceded that as she does not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rope and Comcare (Compensation)

Details

AGLC: Rope and Comcare (Compensation) [2024] AATA 3005
Case: [2024] AATA 3005
Decision Date: 23 August 2024

CaseChat Overview and Summary

The matter before Deputy President O'Donovan concerned three separate decisions made by Comcare, which were under review. The applicant, Mrs Rope, had a longstanding pain condition with both physical and psychological components, for which Comcare had generally provided compensation for various treatments over many years. However, Comcare had recently taken the view that the treatments sought were not effective in bringing about discernible improvement in Mrs Rope's symptoms and therefore were not reasonable to obtain. Mrs Rope contended that while the treatments did not cure her condition, they prevented her symptoms from worsening. The three decisions under review related to claims for reimbursement for a philosophy textbook, approval for enrolment at the University of the Third Age, and approval for further psychological treatment.

The court was required to determine whether the three claims made by Mrs Rope constituted medical treatment that was reasonable for her to obtain, in accordance with the Safety, Rehabilitation and Compensation Act 1988. Specifically, the court needed to assess the reasonableness of the philosophy textbook reimbursement, the University of the Third Age classes (including meditation, mindfulness, yoga, philosophy, and ethics), and the proposed further psychological treatment. A further issue arose as Comcare contended that Mrs Rope's psychological condition was no longer materially contributed to by her employment, despite having previously accepted this basis for compensation.

The Deputy President found that Comcare had consented to varying the decision under review to allow reimbursement for the philosophy textbook, and made that variation accordingly. Regarding the University of the Third Age classes, the Deputy President noted that while these were considered medical treatment, Comcare had found them unreasonable as they were not goal-focused and did not empower the applicant towards self-management. The Deputy President also considered that the applicant's GP had merely endorsed the classes based on past helpfulness, without discussing them in detail. Similarly, for the psychological treatment, Comcare had denied further sessions, reasoning that the applicant had been unable to achieve self-management despite extensive prior treatment. The Deputy President acknowledged the historical context of Mrs Rope's chronic pain condition, originating from a 1987 motor vehicle accident, and the subsequent development of psychological symptoms, which had been accepted as a compensable condition. However, the Deputy President ultimately affirmed Comcare's decisions to reject the claims for the University of the Third Age classes and the further psychological treatment, finding them not to be reasonable medical treatment in the circumstances.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The three decisions under review rejected the following claims made by the applicant:(a)2022/3101: reimbursement for a philosophy textbook in the sum of $20.00;(b)2022/3595: approval of attendance at classes with the University of the Third Age;(c)2022/3596: approval of further psychological treatment.Background Mrs Rope has a longstanding pain condition, which has both physical and psychological components. She has sought to manage her symptoms in a variety of ways over many years and Comcare has, by and large, been prepared to pay compensation in relation to the treatments she has sought. However, in recent years Comcare has taken the view that the treatments are not effective in the sense that they have not brought about any discernible improvement in Mrs Rope’s symptoms, beyond perhaps some temporary relief of acute symptoms. Comcare has taken the view that the treatments do not constitute medical treatment that it is reasonable for Mrs Rope to obtain. Mrs Rope’s view is that while her condition does not improve as a result of the treatment, in the absence of the treatment her symptoms worsen. Consequently, it is reasonable for her to obtain the treatment. The three reviewable decisions that are the subject of this review can be summarised as follows:(a)Comcare declined liability for practical philosophy classes and related reading in 2020. The classes were an activity recommended by Mrs Rope’s GP. Mrs Rope had been attending the classes weekly since 2012. Comcare found that the philosophy classes were medical treatment but the related reading material was not. Comcare found that the treatment was obtained in relation to Mrs Rope’s medical condition, but the classes were not reasonable treatment in the circumstances. In particular, the treatment was not shown to be effective at empowering the applicant towards self-management. In her statement of facts issues and contentions filed during the course of these proceedings, the applicant conceded that as she does not intend to re-enrol ‘there is nothing further to be claimed except the $20 for the textbook used by the class in late 2019’. The respondent in its opening statement at the hearing consented to the Tribunal making a variation of the decision under review (2022/3101) to allow for reimbursement of the philosophy textbook. I will vary the decision under review accordingly.(b)Comcare initially declined liability for various classes at the University of the Third Age in 2022. These classes include; meditation and mindfulness, basic yoga and philosophy, and ethics. Comcare found these classes were medical treatment, but were not reasonable as they were not goal-focused and were not successful in empowering the applicant to self-manage. The applicant sought internal review of the decision on the basis that in the absence of funding for the claimed treatments her condition had deteriorated. Comcare found that the classes were medical treatment which was obtained in relation to the applicant’s compensable condition. However, the treatments were not reasonable as they were not effective and did not empower the applicant toward self-management. The applicant had at that point undertaken similar classes from 2012 to 2019. Comcare noted that for the classes in 2022, Dr Whiting (the applicant’s GP) had not provided any discussion of the classes just an endorsement of them on the basis that the applicant had found them helpful previously. The endorsement by Dr Whiting did not persuade the delegate that the classes were reasonable (date of decision: 18 March 2022).(c)Comcare declined further psychology treatment detailed on the treatment plan by Dr Kerry Leahan (psychologist) dated 11 February 2022. Further psychological treatment had been denied previously by Comcare and that decision affirmed by the Tribunal in Rope and Comcare [2020] AATA 59. Comcare found that the treatment was medical treatment obtained in relation to the applicant’s compensable condition. However, Comcare found that the treatment was not reasonable to obtain in the applicant’s circumstances. The applicant was seeking 12 sessions over a 40-week period on the basis that her condition had deteriorated over the previous 2 years following the ending of psychological treatment. The applicant’s concern was that her condition would deteriorate further if treatment was not resumed. Comcare found that given that the applicant had been unable to make a transition to self-management despite 600+ sessions previously, the treatment was not reasonable (date of decision: 24 March 2022).

Evidence

Evidence Before The Court

I will deal with each of these issues in turn having regard to the following material.EvidenceThe evidence before me consisted of the following: I have also had regard to material in the T-Documents to the extent that it records historical matters concerning the claims including Tribunal decisions. In addition to the evidence listed above, I have had regard to the following submissions:·Respondent’s opening submissions dated 13 September 2023;·Respondent’s closing submissions dated 13 December 2023, filed on 13 December 2023·Applicant’s closing submissions in 10 emails dated and filed between 16 and 23 November 2023 After the timetable for submissions closed the applicant continued to file material without leave. I have not had regard to the following:·Email from applicant of 27 November 2023;·Email from the applicant of 30 November 2023;·Email from applicant of 19 December 2023; and·Email from applicant of 12 February 2024, headed ‘Without Prejudice’.Does the applicant have a psychological condition materially contributed to by her employment? As noted above, the respondent now contends that the applicant is no longer suffering from a psychological condition materially contributed to by her employment. The respondent accepts that the applicant continues to suffer from a psychological ailment – most likely a somatic symptom disorder. However, the respondent no longer accepts that the condition is materially contributed to by her employment. This is a significant departure from the bases on which Comcare has dealt with Mrs Rope’s claims over the years. Before considering the contemporary evidence on the topic, it is worth setting out relatively briefly, the history of the applicant’s conditions. The following represent my findings of fact. The applicant was involved in a motor vehicle accident on her way to work in March 1987. She suffered an immediate whiplash injury in the accident. Despite the injury she was able to return to work in a relatively short space of time. However, pain from the accident persisted as did the need for treatment. The applicant’s pain became chronic and other psychological symptoms developed. In 1999 the applicant was invalidity retired from the Public Service and has not worked since. In 2000 the applicant made a claim for permanent impairment under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The Comcare delegate accepted that the applicant suffered from some form of psychiatric impairment which was permanent. The degree of impairment was assessed at 10% under the Guide to the Assessment of Degree of Permanent Impairment. This decision has been treated as amounting to an implied acceptance that the applicant was suffering from a psychological condition that originated from the physical injuries she suffered in the motor vehicle accident in 1987. As the applicant’s symptoms have developed and persisted, there has been disagreement among health professionals about whether the applicant’s ongoing symptoms are organic or psychological in origin. In the late 1990s the weight of the medical evidence favoured the view that the applicant suffered from an organic pain disorder combined with a major depression.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.