Rope and Comcare (Compensation) - [2020] AATA 59

Rope and Comcare (Compensation) [2020] AATA 59 (22 January 2020)
Division:GENERAL DIVISION
File Number(s): 2018/2130; 2018/7375
Re:Eleanor Rope
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries AO
Date:22 January 2020
Place:Canberra

The Tribunal affirms the reviewable decision of 20 April 2018.
The Tribunal sets aside the reviewable decision dated 14 December 2018 and instead finds that Mrs Rope is entitled to recover $117.37 pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988.
Comcare will pay 20% of Mrs Rope’s costs, as agreed or taxed, pursuant to s 67(8) of the Act.
............................................................
Deputy President Gary Humphries AO
Catchwords
COMPENSATION – somatic symptom disorder – two separate claims – whether the applicant is entitled to compensation for psychological medical treatment – reasonableness of psychological treatment considered – decision under review affirmed – whether the applicant is entitled to compensation for medical expenses for Deglycerinated Liquorice – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
Alamos and Comcare [2014] AATA 629
Bayani and Australian Postal Corporation [2015] AATA 342
Chowdhary and Comcare [1998] AATA 448
Comcare v Holt [2007] FCA 405
Comcare v Mooi (1996) 69 FCR 439
Durham and Comcare [2014] AATA 753
Popovic and Comcare (2000) 64 ALD 171
Rope and Comcare [2018] AATA 42
Topping and Comcare [2015] AATA 525
Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-5) (5^th edition), American Psychiatric Publishing.
REASONS FOR DECISION
Deputy President Gary Humphries AO
22 January 2020
INTRODUCTION
Mrs Eleanor Rope was involved in a motor vehicle accident in March 1987 while employed by ACT Health. Although she returned to work for periods following the accident, she was invalidity retired in 1999.
In June 1987 Comcare accepted liability for shock and injury to Mrs Rope’s neck arising from the accident. Subsequently, it has accepted liability for several conditions which were said related to, or sequelae of, the accident. However, over the more than 30 years following the accident, disputes have arisen between Mrs Rope and Comcare as to her appropriate entitlements under the Safety, Rehabilitation and Compensation Act 1988 (the Act). A number of these have been considered by way of merits review by the Tribunal; some have also been further considered by the Federal Court. It should be noted that Mrs Rope has, on a number of such occasions, successfully asserted in those forums her right to particular forms of compensation under the Act.
The present proceedings concern two specific claims for compensation arising out of her 1987 motor vehicle accident.
Although Mrs Rope has generally appeared on her own behalf before the Tribunal in her various proceedings, in the present matter she was represented by counsel, Mr Anforth and Mr Livingston, instructed by solicitors, for the hearing before the Tribunal in October 2019. However, she wrote to the Tribunal in December 2019, following the lodgement of final submissions by the parties, advising that…

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) [2020] AATA 59
Case: [2020] AATA 59
Decision Date: 22 January 2020

CaseChat Overview and Summary

This matter concerned two separate claims brought by Mrs Rope against Comcare. The first claim related to Mrs Rope's entitlement to compensation for psychological medical treatment, specifically counselling sessions. The second claim concerned Mrs Rope's entitlement to compensation for medical expenses incurred for Deglycerinated Liquorice (DGL) tablets. The case was heard by Deputy Gary Humphries Ao P of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the psychological counselling Mrs Rope sought was obtained in relation to her compensable injury, whether such treatment was reasonable in the circumstances, and if so, what amount of compensation was appropriate. For the DGL tablets, the Tribunal had to determine if the medical expenses were recoverable under the relevant legislation.

Regarding the psychological counselling, the Tribunal affirmed the reviewable decision that Mrs Rope was not entitled to compensation. This decision was based on the reasoning that while Mrs Rope suffered from a condition that arose from her 1987 motor vehicle accident, and which was accepted as compensable, the extensive psychological counselling received by February 2018 was no longer considered reasonable treatment for that condition. The Tribunal noted that much of the distress addressed by the counselling was generated by Mrs Rope's interactions with Comcare and her focus on litigation, suggesting that such support could be provided by non-insurer funded sources. In contrast, the Tribunal set aside the reviewable decision concerning the DGL tablets. It found that Mrs Rope was entitled to recover $117.37 for the cost of these tablets and their postage, as this treatment was considered the best option for her reflux oesophagitis, with alternatives causing undesirable side effects. The Tribunal ordered Comcare to pay 20% of Mrs Rope's costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Once the compensable injury to which the claim for medical treatment relates is identified, the Tribunal here must address these questions:(a)Is the claimed treatment obtained in relation to the injury?(b)If so, is the treatment reasonable for Mrs Rope to obtain in the circumstances?(c)If so, what amount of compensation is appropriate to that medical treatment?RELEVANT FACTS Mrs Rope gave evidence to the Tribunal that she felt pain in her neck shortly after the motor vehicle accident in March 1987. Since then the pain has always been significant, she said. It has never gone away. She first began to receive psychological treatment in 1987 or 1988, and has had such treatment more or less continuously since 1990. This treatment included procedures called neurofeedback and biofeedback. She told the Tribunal that the psychology treatment assists her to manage her pain, particularly in conjunction with massage. It gives me hope, and helps me to cope, including with grief associated with the loss of employment, she said. It also alleviates her pain, sometimes for several days, and helps her sleep better. The pain doesn’t bother me quite so much after treatment of this kind. Under cross-examination, she told the Tribunal that she has reduced her use of massage to manage her pain since January 2018, when a decision of the Tribunal confirmed that such treatment was compensable under the Act (Rope and Comcare [2018] AATA 42). Mrs Rope was asked whether her pain was worse when her psychological symptoms were worse. She responded:Yes. The physical seems to impact on the mental and the mental seems to impact on the physical. It goes in a vicious circle. Mrs Rope gave evidence of stresses that she experienced in relation to work in the period between her accident in 1987 and taking a voluntary redundancy in 1999. She felt that her rehabilitation program was not being sympathetically handled. At one point she was reporting to somebody who was technically her junior in ACT Health. She also felt that the offer of redundancy had been made contrary to public service rules.MEDICAL EVIDENCE Dr Meredith Whiting, a psychiatrist presently treating Mrs Rope, produced a report and gave evidence during the hearing. In her evidence, Dr Whiting said that she had first met Mrs Rope in 2015. Her diagnosis of her condition is Major Depressive Disorder. This condition, she said, arose out of, or from the time of, the motor vehicle accident in 1987. She told the Tribunal that Mrs Rope has suffered from chronic pain for some time, and that this pain contributes to her psychological condition. However, she agreed that other things also are likely to have contributed to her Major Depressive Disorder in 2018, including relationship issues and stress associated with her dealing with Comcare. Issues associated with litigation with Comcare were playing a huge part in the sustainment of her condition. She considered that Mrs Rope was likely to have an ongoing need for psychological counselling.

Evidence

Evidence Before The Court

Mrs Rope gave evidence of stresses that she experienced in relation to work in the period between her accident in 1987 and taking a voluntary redundancy in 1999. She felt that her rehabilitation program was not being sympathetically handled. At one point she was reporting to somebody who was technically her junior in ACT Health. She also felt that the offer of redundancy had been made contrary to public service rules.MEDICAL EVIDENCE Dr Meredith Whiting, a psychiatrist presently treating Mrs Rope, produced a report and gave evidence during the hearing. In her evidence, Dr Whiting said that she had first met Mrs Rope in 2015. Her diagnosis of her condition is Major Depressive Disorder. This condition, she said, arose out of, or from the time of, the motor vehicle accident in 1987. She told the Tribunal that Mrs Rope has suffered from chronic pain for some time, and that this pain contributes to her psychological condition. However, she agreed that other things also are likely to have contributed to her Major Depressive Disorder in 2018, including relationship issues and stress associated with her dealing with Comcare. Issues associated with litigation with Comcare were playing a huge part in the sustainment of her condition. She considered that Mrs Rope was likely to have an ongoing need for psychological counselling. Dr Whiting said that she saw her role as supporting Mrs Rope to raise her mood. Clinical psychologist and psychotherapist Marion Swetenham provided counselling to Mrs Rope for several years. On 10 July 2013 she reported to Mrs Rope’s GP, Dr Linda Welberry, that she had conducted a depression, anxiety and stress scale test on Mrs Rope that day and compared it to similar test in October 2011. As at the later date Mrs Rope scored normal for Depression and Stress and moderate for Anxiety, a considerable improvement from 2011 when her scores ranged between moderate to severe to extremely severe. A client progress note by Ms Swetenham dated 13 November 2014 records:I spoke with Linda Welberry. We both agreed that Comcare would expect and have the right to request that we wind up treatment. I have counted 190 sessions of treatment that Eleanor has received from me and we both agreed that Eleanor’s insistence on going to the AAT to ‘fight’ Comcare’s decisions was stressful and never ending. We thought that sessions should ultimately come to an end, but wondered about requesting monthly appointments from February. To be discussed with Eleanor. A clinical note of Dr Welberry dated 24 June 2015 notes:Discussion about the psychiatrist’s report. Has been stressed re this and BP has been up… Still wishes to appeal decision of Comcare re psychological treatment. Much worse since not receiving this. Associate Professor Lybus Hillman, a gastroenterologist treating Mrs Rope, gave evidence, principally in relation to Mrs Rope’s reflux oesophagitis claim. In a letter to Dr Welberry dated 22 August 2013, Prof Hillman wrote:[Mrs Rope] is acutely aware that stress related to Comcare exacerbates her symptoms. I think that she should terminate her relationship with Comcare for her mental health.

Decision

Reasons for decision

Accordingly, the Tribunal will set aside the reviewable decision dated 14 December 2018 and instead find that Mrs Rope is entitled to recover $117.37, being the cost of the DGL tablets imported by her in 2018 and the cost of their postage from the United Kingdom. I note that this amount is the same amount previously agreed between the parties as being recoverable in the draft consent decision handed up to the Tribunal in December 2019.CONCLUSION With respect to the claim for psychological counselling, the Tribunal affirms the reviewable decision of 20 April 2018. With respect to the claim for Deglycerinated Liquorice tablets, the Tribunal sets aside the reviewable decision dated 14 December 2018 and instead find that Mrs Rope is entitled to recover $117.37 pursuant to s 16 of the Act. Taking into account the relative value of the two claims, the Tribunal considers that Comcare should pay 20% of Mrs Rope’s costs, as agreed or taxed, pursuant to s 67(8) of the Act.

Ratio Decidendi

Legal Principle Established

In her live evidence to the Tribunal, Prof Hillman said that she had been treating Mrs Rope since 1997. She considered that the liquorice (the DGL) served to control the sensitisation of the oesophagus to the irritation of the reflux. Gastro-oesophageal reflux can be produced by stress. She said that in Mrs Rope’s case DGL was the best treatment because the alternatives all caused various unfortunate side effects such as increased blood pressure, extreme unpalatability and/or severe constipation. She agreed to that Mrs Rope might now trial antacids to achieve the same effect as DGL, but we did…18 years ago trial a whole pile of things which didn’t work and the liquorice did, which is why we used it.CONSIDERATIONPsychological counselling – Application 2018/2130Comcare’s submissions As explained above, Comcare submitted that it had impliedly accepted liability for a depressive disorder on 13 July 2000 at the time when liability for permanent impairment and non-economic loss for a psychiatric condition was accepted under ss 24 and 27 of the Act. Initially, Comcare contended that the psychiatric condition from which Mrs Rope was suffering in February 2018, at the time of the reviewable decision in issue here, was not the same condition as that accepted in July 2000. However, that contention was not pressed at the hearing. In its closing submissions Comcare said that a psychiatric condition satisfying the test of being outside the boundaries of normal mental functioning and behaviour (Comcare v Mooi (1996) 69 FCR 439 at 444) had been present from 2000 until the reviewable decision in 2018. It accepted that this condition bears the necessary relationship to employment to be compensable, subject to the provisions of s 16. The correct description of that condition (now if not in 2000) is somatic symptom disorder, Comcare submitted. Ms Wright, Counsel for Comcare, submitted that Mrs Rope had received 600-700 psychological counselling sessions to treat both the psychological symptoms arising from her painful neck condition and psychiatric condition accepted in July 2000. Counsel contended that, by February 2018, the sessions were no longer being delivered in relation to any compensable condition or, if they were, they were not reasonable treatment of any such condition. Comcare also submitted that much of the distress which the counselling was addressing was generated by Mrs Rope’s interaction with Comcare, as well as by an unhealthy focus on her condition which, in line with the evidence given by Dr Jetnikoff, was being exacerbated by continuing medical intervention. A cessation of psychological counselling with a consequential reduction in her dealings with Comcare would address both these issues, Comcare maintained. Ms Wright characterised many of the psychological treatment sessions as supportive counselling, i.e. a chance for Mrs Rope to express her frustrations about litigation with Comcare and other life issues, with little else of a therapeutic nature. Counsel contended that such support could be provided by a friend or a minister, and did not need to be insurer-funded. She drew on Dr Jetnikoff’s report as support for this proposition.Mrs Rope’s submissions