Rope and Comcare (Compensation)

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.
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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 her legal advisers no longer represented her.
CLAIMS HISTORY
Psychological counselling – Application 2018/2130
In September 1996 Mrs Rope wrote to Comcare making a claim in relation to a mental health condition. Although that letter was not in evidence before the Tribunal, it appears that Comcare considered a claim based (at least in part) on stress caused to Mrs Rope by communications she was having with her employer, ACT Health, which related to, or arose out of, her 1987 accident. The letter apparently contended that her condition had been aggravated by ACT Health’s administration of her rehabilitation program, as well as by the role played by Comcare and by medical opinions formed by various Commonwealth Medical Officers in assessing her fitness for duty. In a letter dated 27 November 1996 responding to this request, Comcare rejected this claim, saying that the aggravation did not arise out of or in the course of her employment. The letter also dealt with a Claim for Anxiety and depression, which it rejected on the basis that the condition had not been materially contributed to by employment.
In 2000 Mrs Rope made a claim for permanent impairment under ss 24 and 27 of the Act as it then was. In a letter dated 13 July 2000, Comcare accepted that Mrs Rope suffered a 10% whole person impairment. In his reasons for this decision, Comcare’s delegate considered that she suffered from a psychiatric impairment related to Reactions to stressors of daily living which cause modification of daily patterns, marked disturbances in thinking, and definite disturbance and behaviour. He accepted that this condition became permanent during the early 1990s, and awarded her 10% whole person impairment on this basis.
In submissions before the Tribunal in the present proceedings, Comcare contended that, notwithstanding the absence of a formal determination of liability under s 14 for a psychiatric condition, the letter of 13 July 2000 constituted an implied acceptance of such a condition.
Mrs Rope has received psychological counselling for many years, and Comcare has compensated her for the cost of that counselling, apparently on the basis of the psychological condition referred to above for which it had impliedly accepted liability. However, in or around the early part of 2017, Comcare gave Mrs Rope an indication that it no longer proposed to reimburse her the cost of this counselling. On 5 June 2017 Mrs Rope attended a so-called in-house facilitation with Comcare at which it was agreed that Comcare would cover one session of psychology treatment every two months/eight weeks, with the first session in June 2017, and Mrs Rope would be reimbursed for previously denied sessions in March, April and May 2017. These sessions would continue until December 2017, to assist Mrs Rope to move to self-management of her condition.
On 22 December 2017, Dr Kerry Leahan, Mrs Rope’s treating clinical psychologist, provided a report in which she stated that Mrs Rope had found it necessary to add additional sessions over and above what had been approved by Comcare as she benefitted from regular monthly sessions. She then submitted a treatment notification plan requesting a further 12 psychological consultations over 50 weeks from 17 February 2018 to 31 December 2018.
By determination dated 8 February 2018, Comcare denied liability under s 16 of the Act for continuing psychological counselling. It was noted that the claimed continuation of treatment was not in line with the mutual agreement that arose out of the facilitation process to move to self-management, an agreement that was made in light of Comcare's view of the limited efficacy of any further counselling.
Following a request for reconsideration, Comcare issued a reviewable decision dated 20 April 2018 in which it affirmed the determination of 8 February 2018. It is this reviewable decision which now comes before the Tribunal for merits review.
Deglycerinated Liquorice – Application 2018/7375
On 8 August 2018 Mrs Rope made a claim to Comcare for reimbursement of the cost of Deglycerinated Liquorice (DGL) chewable tablets. Mrs Rope has the DGL shipped from the UK and claimed $83.29 for the cost of the tablets and $34.08 for the cost of postage. By determination dated 26 November 2018 Comcare reimbursed Mrs Rope for the cost of DGL in the sum of $80.21. She requested reconsideration, stating she had been underpaid for the DGL, claiming that Comcare was required to reimburse her the actual costs reasonably incurred in obtaining the DGL.
On 14 December 2018 Comcare issued a reviewable decision in which it denied continuing liability for DGL, on the basis that the liquorice tablets were not reasonable medical treatment pursuant to s 16 of the Act and, further, that reimbursement for postage of the tablets could not be paid under the Act. Mrs Rope has sought merits review of this decision before the Tribunal.
THE ISSUES BEFORE THE TRIBUNAL
In both proceedings, Mrs Rope seeks reimbursement for medical expenses in relation to compensable medical conditions. Section 16 of the Act provides for such reimbursement in these terms:
(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.
Section 4(1) defines medical treatment to mean, in part:
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner…
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.
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.
Dr Nicholas Jetnikoff, a consultant psychiatrist, assessed Mrs Rope on 19 May 2015 and wrote a detailed report to Comcare dated 22 June 2015. In it he undertook an overview of her medical history as well as an overview of some of her litigation history. He noted the employment history recorded by psychiatrist Dr Hugh Veness in April 1997 as part of an assessment for invalidity retirement. Dr Jetnikoff recorded the following:
In 1986 Mrs Rope then joined the Department of Territories which later became ACT Health, her former employer. She was employed in Child Health in a variety of settings… Dr Veness…notes that the accident of relevance occurred when Mrs Rope had her two children in a car and she was driving to work. He notes with interest that the accident occurred when a bus travelling at approximately 40 km/h braked suddenly leading to the car in front of her braking suddenly and Mrs Rope despite attempts to avoid the car in front rear-ending that vehicle and subsequently experiencing a whiplash injury.
Dr Veness notes that Mrs Rope had minimal time off work after the accident and was referred for physiotherapy with some improvement in her range of movement but persistent pain in the neck and shoulders plus persisting headaches during 1987 [sic]. She also was referred for chiropractic treatment and took some mild analgesia. In 1988 she was moved to a new position.
Eventually Mrs Rope was offered a position as the Child Health Coordinator in 1990 which she commenced in May of that year and was able to work full-time in the position from July 1990. She approached the work with enthusiasm although her family were against her working full-time. Dr Veness notes that this job appeared to be a great success until the new branch had arrived and abolished the position. Dr Veness reported that Mrs Rope experienced a great deal of stress as a result of this which subsequently made her unfit for work and she did not return to work until November 1991 although the exact date when she went off work was unclear.
When she returned to work she was doing the same duties as prior although she no longer had the higher position and appeared to have bitterness about this. She then had to report to someone who had previously been junior to her and felt she was given the role of the junior clerk, she was told to get a new position. Dr Veness notes that Mrs Rope was assessed by a psychologist in 1992 who recommended she change employment and her position and was only fit for part-time work and Dr Veness notes that Mrs Rope had felt a decline in her reputation as a result of this report, so found a position of her own initiative…
In September 1993, Mrs Rope was offered a voluntary redundancy which made her paranoid that there was a proposal to have her separate from the employer. She also became upset by her general practitioner receiving a letter suggesting she was less than positively motivated to find new work. Dr Veness reported that Mrs Rope became increasingly uncomfortable with her employer's motivations regarding her employment.
She eventually accepted the prospect of invalidity retirement as it was likely to be better tolerated than the uncertainty of her rehabilitation process. Dr Veness reported that Mrs Rope lost all hope in recovery and on the effective rehabilitation. He quoted Mrs Rope saying that she lost hope after the doctor stopped her Di-Gesic medication…
He noted that in January 1997 Mrs Rope had an endoscopy which showed mild ulceration and inflammation of the oesophagus. At that time there was strong suggestion she was suffering depression, from her rheumatologist Dr Champion as it sounds and she was referred to a psychiatrist for assessment. Dr Veness noted that Mrs Rope was not aware of being depressed stating that she had difficulty assessing herself in that manner. He described her having very limited functioning and inactivity essentially due to her fear of activity exacerbating pain on the neck and shoulders and her subsequent low mood as a result of inactivity and feeling purposeless…
Dr Jetnikoff related the outcome of some of the compensable treatment Mrs Rope received subsequently. Specifically, he noted treatment by Ms Ann Just, who provided a specific form of psychotherapy called psychoneuroimmunology:
I note the report by Ms Just, Counsellor dated October 2002 to the Australian Government Solicitor. There is very little detail in this letter other than to state that the main approach for Ms Just in general presumably also with Mrs Rope was to provide education into the interplay between the immune system and stress incorporating anxiety management techniques and mindfulness and other relaxation training.
The report notes that Mrs Rope only reported short-term benefits from the treatment although^. it was noted that Mrs Rope was experiencing high degree of life stress compromising any benefits from the treatment…
I note a subsequent letter by Ms Just from March 2003 to the Australian Government Solicitor. This elaborated on the treatment provided in Canberra referring to it as Continued Crisis Counselling as Mrs Rope virtually always attended in a state of crisis and she had difficulty focussing on specific training and therapy.
He also noted the following regarding hypnotherapy provided in 2014:
Ms White had reportedly noted Mrs Rope only obtained temporary benefits from the treatment and in addition that Ms White advised that hypnosis did not occur and that when symptoms returned they did so with some intensity.
Dr Jetnikoff further recorded:
I note the psychology review treatment plan dated 22 January 2014 with the treatment goals included continuing studies at the Canberra School for Practical Philosophy and management of reactive anxiety and depression. It was noted that the barrier to achieving this was stress with dealing with Comcare.
I note the report by Ms White to the treating GP dated February 2014. Ms White noted that she formed the impression that Mrs Rope experienced very strong physical and emotional reactions to stress, both internal or external and these responses were determining her state of mind and health [sic]. The main focus in the therapeutic contact was practising mindfulness and relaxation techniques. Ms White did not report any lasting benefits although noted that there had been some reduction in medication for Mrs Rope that she continued to react with extreme emotions to stress. It was recommended Mrs Rope continue to build coping skills and stress tolerance. Ms White noted that if Mrs Rope continued to be managed under a compensation claim she would continue to experience a high degree of stress.
l note the Comcare decision dated 23 January 2015 in a letter to Mrs. Rope in response to her December 2014 request to reconsider a November 2014 decision to ultimately cease psychological treatment. I note Comcare had cited Dr Welberry in July 2014 advising there was a reduction in the frequency of sessions over 2014. Comcare notes that in October 2014 conversation with treating psychologist led to the determination that psychological treatment was not leading to any significant impact regarding Mrs Rope becoming better at self-management of the condition as Ms Sweetenham [sic] believed that such a progression would be interpreted by Mrs Rope as Comcare having won and aggravating her sense of injustice…
She saw two separate psychiatrists in 1991, in April and August respectively but Dr Chase notes that no relief was reported and she ceased contact with both doctors. Dr Chase notes that Mrs Rope became concerned that she was becoming dependent on Di-Gesic and was sleeping a great deal around October 1992…
It was noted that Mrs Rope tape recorded the conversation and presented as anxious and angry in the assessment with Dr Chase. Dr Chase considered that Mrs Rope had no evidence of any organic illness citing extensive investigations supporting this plan.
I note a report by Dr Champion from July 1995 to the treating GP. This notes Mrs Rope was admitted to St Vincent's Private Hospital. It refers to a prior admission where Mrs Rope had a very good response to an occipital nerve block and a left interscalene brachial plexus block. It notes that these benefits were undone by Mrs Rope's abruptly upgrading her activities prematurely due to a wide range of commitments. Dr Champion noted that he was concerned that she may have had high expectations of the treatment that at best was likely to offer modest benefit. The benefit of nerve blocks during the most recent admission was not clear although it seemed that Mrs Rope was emotionally worsened and highly distressed on the morning of her discharge.
Interestingly Dr Champion noted that Mrs Rope was concerned about her daughter's health and that she was highly anxious about reporting her symptoms to her husband whose views she was worried about. He described Mrs Rope being advised by her husband that she needed to assume a positive attitude to get a good result. Dr Champion made reference to gaining further insights into her psychological and emotional background after having a conversation with Ms Just during the admission. He refers to background issues. He also refers to Mrs Rope passively continuing to wait for improvement rather than setting small achievable goals as part of her recovery process…
A major aspect of self-management appeared to be minimal activity or rest which in itself was a challenge for Mrs Rope. She described an increasing sense of frustration at the insurer with the fixed belief that she was never adequately provided rehabilitation or support. Since that time she has been essentially managed as per the subjective reports of pain and described the advocacy and support from her treating general practitioner and at other times her previous treating psychologists and other specialists. The only practitioner continuously in her treatment over this lengthy period of time was being her treating general practitioner Dr Wellbury [sic].
Of surprise to me also was the relative inability of Mrs Rope to explain the effects of other treatments over time. When we were discussing her various psychologists what Mrs Rope described was a strong benefit from seeing Ms Just whom she claimed to have had regular contact with between 1990 and 2011 with some very long breaks in therapy over time particularly after Ms Just relocated to Townsville. When I asked her how Ms Just helped her Mrs Rope said that she saved her life. I asked her what she meant by this and despite several minutes of conversation I still was not able to ascertain what actually had helped. When I asked her to describe what Mr Just did in therapy she replied psychoneuroimmunology. She could not give me a further explanation and then provided me a document written by Ms Just on Dr Rogers' letterhead dated 15 June 2010 which I understand is in the Tribunals' possession. I will note that this does not actually answer the question of what psychoneuroimmunology does either...
To clarify further I asked her specifically about anxiety management and whether she learned any ways to manage anxiety. Mrs Rope claimed that she had been educated into how to do breathing exercises but could not even explain to me how she would undertake these nor could she describe any other ways to use to manage anxiety. She added that even though she had been taught various strategies although these were not demonstrated in our discussion that when she was in a panic state or in a highly anxious state she would forget them and therefore they had no real effect upon her overall. She did not for example describe any significant benefits in terms of functional change over several years of psychological treatment. What she did describe was a sense of support and the value of having an advocate that she could speak to on a regular basis none of which is specific to a psychologist…
Mrs Rope explained that she was seeing a variety of psychologists over time and did not like changing for obvious reasons. Her last psychologist Ms Sweetenham [sic] had been seen in January 2015. The description of contact with Ms Sweetenham [sic] was in terms of reading relevant material and mindfulness however nothing specific was described in terms of how it had managed her pain disorder, improved her functioning or actually changed her symptoms whatsoever to the degree that I was not convinced it had made any difference at all…
She was unable to demonstrate any sophisticated understanding of the psychological treatment she had received despite the extensive contact over several years. This was something I challenged further but despite even prompting she was unable to elaborate on how if at all any of these therapy had helped her and what she had learned from the contact other than to say that it had saved her life and that she was certainly very positive about and appreciative of the various contact…
She expressed the desire to continue with psychotherapy but could not explain why other than wanting this and appreciating the support that she had received before. In that respect there appeared to some internal inconsistency as she seemed confused by the idea that I needed to understand how it helped her rather than her simply acknowledging that it was something she wanted to do.

Dr Jetnikoff diagnosed Mrs Rope with a chronic pain disorder which, as he explained in his testimony at the hearing, is a psychiatric rather than a physical condition. He based this conclusion on the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders criteria (though the condition is now classified as a Somatic Symptom Disorder under the fifth edition of those criteria (DSM 5), being those in operation at the time of the reviewable decision in February 2018). After reviewing the medical records, including those compiled since his report of June 2015, he confirmed to the Tribunal that there was no documented pathology to explain her current experience of pain. He added that she had many features of a generalised anxiety disorder, but he would not diagnose that condition given that the pain disorder adequately explained those features. He attributed the pain disorder to the car accident in 1987.
He was also asked by Comcare to comment in his June 2015 report on appropriate treatment for her psychological condition. He responded:
The various psychologists that have seen her for more than 600 sessions have not provided any particularly detailed documentation including Ms Just. I note that there has been more opinion regarding psychiatric status by non-psychiatrist specialists over the course of years and there has not been any treating psychiatrists involved. Attempts to provide anxiety management have undoubtedly occurred at several times but probably eventually lost enthusiasm and resorted to supportive psychotherapy formats due to Mrs Rope's inability to improve as a result of these other approaches.
In summary I do not believe there has been any specific treatment of her psychological condition namely her pain disorder for at least five years if not longer which I suspect is strongly influenced by Mrs Rope's unwillingness to work on any therapy issues due to a limited insight and her entire focus on pain. Having said this pain disorders generally have a very poor response to treatment particularly if they go through any length of time I have never seen one that has gone for quite as long as Mrs Rope's and would not expect anything more than modest temporary gains to be provided from any particular psychological treatment such as supportive psychotherapy. I would not have any expectation that any other approach of a more active nature would work at all. Historically this seems to have been the case…
The psychology treatment has been of a generic and supportive nature. This has no evidence of being of benefit at all in managing the condition. It appears likely the use of this therapy has been for various life issues that Mrs Rope has presented with and for which she refused to disclose in our assessment. This could not be considered reasonable in the context of addressing a compensable condition.
Dr Jetniknoff was asked what treatment Mrs Rope reasonably requires for her psychological condition, to which he responded:
There is no psychological treatment I could suggest to Mrs Rope which would make any difference to Mrs Rope's condition. There is no likelihood that she will benefit from further input in managing pain or anxiety.
I could not support Mrs Rope having further psychological treatment. It is not likely to do anything with respect to her condition and will continue engender a sense of dependency upon a therapist.
He qualified this by saying that some medication may still appropriately be prescribed.
Under cross-examination, Dr Jetnikoff cavilled with the description of Mrs Rope’s pain disorder as permanent, but agreed that it was unlikely to change. He said that her present psychological treatment was providing only temporary gains, but made no enduring difference to the nature of her condition. He accepted that she had suffered low mood coinciding with occasions where psychotherapy had been reduced, but suggested that her condition is likely to experience fluctuations, to which psychotherapy would make little difference. He also opined that the mood lift she sometimes obtained from psychotherapy could just as readily be provided by a conversation with a trusted friend or a priest.
Dr Jetnikoff emphasised that in those diagnosed with a somatic symptom disorder it was important to make judicious use of psychological intervention. The aim of such intervention should be to allow the patient to optimise their tolerance and functioning, build their resilience and perhaps focus on either a change of career path or a change of lifestyle. Over-medicalisation can inhibit this by making the patient dependent on the treatment and less self-reliant.
Dr Welberry has treated Mrs Rope since 1987 as her GP. She gave evidence at the hearing. She said she believed that Mrs Rope needed ongoing regular [psychological] counselling, particularly during relapses of pain and depression. In her opinion,
…all patients with chronic pain with associated depression which have been going on for a long period of time have an ongoing need for treatment, of one form or another…
There had been a break of a few years in the provision of neurofeedback to Mrs Rope, during which period she reported to Dr Welberry that she was not as well psychologically and cognitively and felt that she would benefit from some more neurofeedback, which Dr Leahan felt would be appropriate.
Dr Welberry confirmed that there are significant fluctuations in the level of Mrs Rope’s pain, associated with things such as cold weather and stress. Without continuing psychological counselling, both her pain and depression would increase. Commenting on the sum total of treatment she has received over the last 30 or so years, Dr Welberry considered that it had enabled her to experience a reasonable quality of life, though with little prospect of improvement.
Under cross-examination, she was asked if Mrs Rope’s condition would improve if the conflict with Comcare ceased to feature in her life. She responded:
...it might seem as if removing the stress of Comcare would alleviate some of her stress, I actually don’t believe that it would.
Dr Welberry advised the Tribunal that Mrs Rope has told her she applies the self-help psychological techniques learned through psychotherapy when at home, though she finds some of them more difficult to practice there than in a clinical or external setting. She said Mrs Rope had read a lot of books about things such as meditation and was anxious to use those techniques to relieve her pain and depression, but she found the supervision and group settings to be of extra help.
She conceded that, having read Dr Jetnikoff’s report of June 2015 proposing a diagnosis and treatment regime with which she disagreed, she had not sought the view of another specialist before continuing with Mrs Rope’s subsisting treatment regime.
Mrs Rope’s treating clinical psychologist, Dr Leahan, gave evidence. She said she had been providing Mrs Rope with psychological counselling on an approximately monthly basis since February 2018. That counselling was appropriate because of her high levels of anxiety and distress. The sessions had also been helpful in the management of her chronic pain. Mrs Rope was now less reactive and more able to assume a calm manner in response to personal challenges than when she first began to treat her.
Under cross-examination, Dr Leahan was asked what value Mrs Rope obtained from sustained cognitive behaviour therapy. She replied that people with a chronic permanent disability
…learn skills but then because of the relapsing nature of their condition there will be periods of time when even though they’ve learnt skills they can’t always put those skills into practice because of the exacerbation of the condition or because of chronic pain causing or intensifying anxiety or triggering a depressive episode.
She agreed, however, that it was a reasonable aim to reduce the number of interventions with health professionals, to reach a stage where Mrs Rope would be largely self managing and would need only an occasional consultation to touch base on self-help skills to prevent relapse. This was Dr Leahan’s aim.
In a letter to Dr Welberry dated 11 November 2017, Dr Leahan said:
When Mrs Rope perceives that Comcare may be making decisions which do not fully comply with the intent of [the Act], she feels bound to challenge them, knowing that doing so has a deleterious impact on her health…
… I encourage Mrs Rope to stop the struggle with Comcare in service to her own health and the well-being of her family, and, on the other hand, I understand the principled stance she sticks to so steadfastly.
In a clinical note dated 18 August 2015, Dr Leahan recorded Eleanor sees that ‘she is on a mission’ and that she is ‘doing God’s will’ by pursuing the case with Comcare.
Under cross-examination, Dr Leahan opined that if she could truly let that [the struggle with Comcare] go, it would be a benefit to her health. She would experience episodes of exacerbation of pain and dysphoria and anxiety less often in those circumstances. She had recommended in the past to Mrs Rope that she not further engage in disputes with Comcare for this reason.
As to diagnosis, Dr Leahan told the Tribunal that, at the point when she last saw Mrs Rope, she would not consider that she met a diagnosis of major depressive disorder, although she has some symptoms of that condition. However, Dr Leahan said that she often meets the criteria for a generalised anxiety disorder although she agreed with Dr Jetnikoff that, pursuant to DSM 5, a diagnosis of that kind was inappropriate where a chronic pain disorder adequately explained the occurrence of symptoms. Mrs Rope’s symptoms sometimes rise to the level of a diagnosable mental illness, and sometimes fall below it.
As previously mentioned, Prof Hillman gave evidence in relation to Mrs Rope’s reflux oesophagitis claim. In a report dated 2 September 2019, she noted that:
As Mrs Rope has significant upper gastrointestinal symptoms related to reflux and mucosal irritation due to ongoing analgesia, she should continue the high dose deglycyrrhizinated liquorice twice a day to provide appropriate symptom control.
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.
CONSIDERATION
Psychological counselling – Application 2018/2130
Comcare’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
Mr Anforth, Counsel for Mrs Rope, pointed to the evidence of her treating professionals that she continues to suffer psychological distress and that counselling on a regular basis, while unlikely to significantly improve her underlying psychological condition, will maintain her level of functioning, particularly when she experiences flare-ups in the level of her pain. Conversely, relying on the evidence of Dr Welberry, he contended that Mrs Rope’s psychological health was liable to deteriorate without the backstop of that ongoing psychological counselling. He urged the Tribunal to give greater weight to the opinion of Mrs Rope’s treating practitioners than to the opinion of Dr Jetnikoff, who saw her on only one occasion.
With respect to that Mrs Rope’s dealings with Comcare, Mr Anforth emphasised that an injured worker is entitled to energetically pursue their legal rights as against the insurer, an exercise – in Mrs Rope’s case – in which she has generally been successful. The fact that this pursuit has taken an emotional toll does not detract from the right to pursue her entitlements.
Is the claimed treatment obtained in relation to the injury?
Dr Jetnikoff diagnosed Mrs Rope with a chronic pain disorder in 2015 (as defined in DSM 4), a condition which he told the Tribunal would now be called a somatic symptom disorder under DSM 5. Diagnostic features of that condition pursuant to DSM 5 include:
Individuals with somatic symptom disorder typically have multiple, current, somatic symptoms that are distressing or result in significant disruption of daily life (Criterion A), although sometimes only one severe symptom, most commonly pain, is present. Symptoms may be specific (e.g., localized pain) or relatively non-specific (e.g., fatigue). The symptoms sometimes represent normal bodily sensations or discomfort that does not generally signify serious disease. Somatic symptoms without an evident medical explanation are not sufficient to make this diagnosis. The individual’s suffering is authentic, whether or not it is medically explained.
…Individuals with somatic symptom disorder tend to have very high levels of worry about illness (Criterion B). They appraise their bodily as unduly threatening, harmful, or troublesome and often think the worst about their health. Even when there is evidence to the contrary, some patients still fear the medical seriousness of their symptoms. In severe somatic symptom disorder, health concerns may assume a central role in the individual’s life, becoming a feature of his or her identity and dominating interpersonal relationships.
Individuals typically experience distress that is principally focused on somatic symptoms and their significance. When asked directly about their distress, some individuals describe it in relation to other aspects of their lives, while others deny any source of distress other than the somatic symptoms. Health-related quality of life is often impaired, both physically and mentally. In severe somatic symptom disorder, the impairment is marked, and when persistent, the disorder ca lead to invalidism.
There is often a high level of medical care utilisation, which rarely alleviates the individual’s concerns. Consequently, the patient may seek care from multiple doctors for the same symptoms. These individuals often seem unresponsive to medical interventions, and new interventions may only exacerbate the presenting symptoms. Some individuals with the disorder seem unusually sensitive to medication side effects. Some feel that their medical assessment and treatment have been inadequate.
On the evidence available to the Tribunal, many of these features would appear to be applicable to Mrs Rope’s circumstances.
The alternative diagnosis is that testified to by Dr Whiting, namely major depressive disorder. On balance, the Tribunal prefers that offered by Dr Jetnikoff. In this respect it notes the view of Dr Leahan that, at her most recent consultation, Mrs Rope she did not garner sufficient symptoms to qualify as suffering from major depressive disorder. Dr Leahan considered Dr Jetnikoff’s diagnosis a reasonable one, and even Dr Whiting said she thought there was considerable congruence between her assessment and Dr Jetnikoff’s. Both Dr Jetnikoff and Dr Leahan agreed that an additional diagnosis of generalised anxiety disorder is not appropriate where a somatic symptom disorder diagnosis adequately explains the symptoms.
The Tribunal is satisfied on the evidence before it that this condition of somatic symptom disorder is the same condition which was, by implication, accepted by Comcare as a work-related injury in July 2000. Dr Jetnikoff attributed the pain disorder to the car accident in 1987, as did other witnesses. This evidence also satisfies the Tribunal that the psychological counselling in issue in these proceedings is treatment obtained in relation to that condition. There appear to be other factors of a personal nature which are contributing to the degraded state of Mrs Rope’s mental health, and stress associated with her dealings with Comcare – mentioned frequently by those who are treating her – is also undoubtedly a significant factor in her condition. Nonetheless, the psychological counselling is treatment in relation to her compensable condition.
Is the treatment reasonable for Mrs Rope to obtain in the circumstances?
To be reimbursed for the cost of that treatment pursuant to s 16 of the Act, it must be treatment which it is reasonable for Mrs Rope to obtain in the circumstances. Those circumstances include an appraisal of the benefits conferred by the treatment together with any disbenefits of the treatment, including its cost.
Dr Jetnikoff recommended a reduction in medical intervention for Mrs Rope’s condition. He considered that there was no likelihood that she would benefit from further psychological treatment in managing her pain or anxiety. He thought that to do so would continue to engender a sense of dependency upon the treating specialist. Conversely, Dr Whiting and Dr Leahan, supported by Dr Welberry, considered that ongoing counselling would be beneficial in managing the psychological condition arising from the pain she has experienced since the motor vehicle accident. The Tribunal is faced with the choice between these two very different treatment paradigms.
I accept Comcare’s submission that there appeared to be a lack of coherence in some of the approaches being taken by Mrs Rope’s medical/psychological team. For example, Dr Welberry thought that the DGL was being taken to treat post-prandial nausea, an impression shared by Mrs Rope herself, but Prof Hillman made it clear in her report (seen by Dr Welberry) that it was not. Both Prof Hillman and Dr Leahan considered that Mrs Rope’s psychological condition would improve if she ceased her interactions with Comcare, and both told Dr Welberry so, but Dr Welberry told the Tribunal she did not accept this. It seems unfortunate that this issue appears to have been left unresolved between the members of Mrs Rope’s treating team. It also seems unfortunate that, faced with doubts from Dr Leahan as to the diagnosis of major depressive disorder and an entirely different diagnosis from Dr Jetnikoff, Dr Welberry appears not to have proposed obtaining further specialist opinion as to Mrs Rope’s appropriate diagnosis and the appropriate treatment regime that might flow from it.

It is not without significance that all Mrs Rope’s expert witnesses were treating rather than medicolegal witnesses. The Tribunal gained the impression that all appeared, in varying degrees, as advocates for Mrs Rope. Dr Jetnikoff recorded that she used the term advocate to describe her counsellors. Mrs Rope told the Tribunal that ongoing psychological treatment gave her hope; at times the Tribunal entertained concerns that the treatment she was undergoing was more directed at providing hope then at easing her into a framework of self-reliance. Although Prof Hillman and Dr Leahan considered that ceasing her legal battles was in Mrs Rope’s best interest, both emphasised that this was her decision, not theirs.
In contrast to the views of her treating team, the analysis undertaken by Dr Jetnikoff in his report of 22 June 2015 is very persuasive. He analyses Mrs Rope’s medical and psychological history in a cogent fashion, highlighting the often short term nature of the benefits provided by the large array of treatment she has undertaken over three decades. He builds a fairly compelling picture of a woman who has become highly dependent on the fact of psychological treatment without it appearing to provide pathways to better self-management of her condition.
The Tribunal was struck by his account of how Mrs Rope seemed unable to actually describe any of the self-help techniques which any of these sessions are supposed to have furnished her. This seemed to gird Dr Jetnikoff’s thesis that the psychotherapy was essentially unproductive, except in a very transitory sense:
She expressed the desire to continue with psychotherapy but could not explain why other than wanting this and appreciating the support that she had received before. In that respect there appeared to some internal inconsistency as she seemed confused by the idea that I needed to understand how it helped her rather than her simply acknowledging that it was something she wanted to do.
In Rope and Comcare [2018] AATA 42 the Tribunal considered a claim by Mrs Rope for ongoing remedial massage treatment to assist in the relief of pain and to allow her to undertake day-to-day activities of living. In reaching a decision upholding her claim for reimbursement for the cost of such treatment under s 16, the Tribunal undertook a review of previous decisions dealing with the reasonableness of treatment pursuant to that section. It summarised at [45]-[46] the relevant case law as setting forth the following principles:
45. Although the principles applied in the above cases occasionally appear to be pulling in slightly different directions, some broad observations can be distilled from them regarding what will or will not be considered reasonable treatment pursuant to s 16. Generally speaking, treatment is more likely to be considered reasonable where:
·its benefits are substantial and its cost is low;
·it is effective, i.e. achieves measurable benefits;
·it is active and promotes self-management of the compensable condition;
·it is consistent with the principles in the [Clinical Framework for the Delivery of Health Services]; and
·it is of limited duration.
46. Conversely, treatment is less likely to be considered reasonable where:
·its benefits are insubstantial and its cost is high;
·it is passive and promotes dependence on itself; and
·it is ongoing and indeterminate.
The Tribunal considered, inter alia, the decision in Bayani and Australian Postal Corporation [2015] AATA 342. There Senior Member Handley concluded at [55]:
I think because there has been no real benefit to the applicant by the prolonged physiotherapy treatment that she has undertaken, there is considerable benefit in her taking responsibility for self-management of her symptoms, consistent with the Framework. I fear that the applicant has become dependent on physiotherapists who have provided her with symptomatic relief only. For her to undertake self-management will require a refocus of responsibility and a willingness to be instructed and subsequently practice and implement appropriate strategies as determined by a competent physiotherapist.
Similarly, in Popovic and Comcare (2000) 64 ALD 171 the applicant claimed for physiotherapy which provided short-term relief of his symptoms, including affording better sleep making him less depressed and less irritable on the succeeding day. The Tribunal concluded at [28]:
…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.
The Tribunal went on to say at [30] that the applicant’s case is one in which, while temporary relief can be reasonable treatment, it has become unreasonable…
In Chowdhary and Comcare [1998] AATA 448 the Tribunal commented, with respect to a claim for physiotherapy treatment under s 16:
In particular, there is 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 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. (at [53])
The Tribunal came to similar conclusions about essentially static conditions in Alamos and Comcare [2014] AATA 629; Durham and Comcare [2014] AATA 753 and Topping and Comcare [2015] AATA 525.
In Comcare v Holt [2007] FCA 405 Mansfield J opined that a cost/benefit analysis ought to be undertaken in assessing treatment under s 16. His Honour decided that the extent to which such treatment has been undertaken in the past and the degree of its success may also be relevant (at [26]). His Honour, added, however, that:
There may be cases… where treatment …which in the past has had some therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of past experience…(at [26])
Having reviewed these authorities, the Tribunal came to the view, on balance, that Mrs Rope was entitled to continuing massage treatment in that the treatment operated to reduce her pain levels and so enhanced her functionality for day-to-day activities. Even so, it indicated that the treatment must put her on a pathway to self resilience so that it was, in the near to intermediate future, no longer necessary.
The outlook for Mrs Rope at the end of the present hearing, however, is somewhat different to that confronting the Tribunal in 2018. The evidence at this time is much more congruent with the view that Mrs Rope has become dependent on the treatment in question – here, psychological counselling – so as to inhibit her capacity to self manage her condition. That state of dependency must necessarily undermine any finding that the treatment is reasonable pursuant to s 16.
A consideration in reaching that conclusion – though not the determinative consideration – is that the psychological treatment itself appears to be a vehicle for exacerbating the stress Mrs Rope experiences through her interactions with Comcare. The clinical notes of her treating specialists are replete with references to her ruminations during consultations on her protracted battle with Comcare, even to the point where the development of self-help techniques are crowded out or overshadowed. There is weight in Comcare’s submission that the consultations are largely concerned with sustaining Mrs Rope’s grievances, not overcoming them. This no doubt accounts for the views of Prof Hillman, Dr Whiting and Dr Leahan that it would be in Mrs Rope’s long-term psychological best interests if that battle were to come to an end. Dr Leahan considered that she would experience episodes of exacerbation of pain and dysphoria and anxiety less often if Comcare were removed from the equation.
It is not the role of the Tribunal to adjudicate on whether there is merit in Mrs Rope’s complaints about the conduct of Comcare. It is, however, within the ambit of its consideration of how reasonable ongoing psychological counselling might be to consider the question of whether the treatment, in its context, is actually deleterious to her chances of sustained improvement from her condition. That context, in my opinion, considerably compromises the therapeutic value of the sessions.
The determinative consideration in reaching the view that the treatment is no longer reasonable to obtain is that it is not effective. It is not clear that Mrs Rope is in any better position with respect to the management of her condition today that she was 20 years ago. The evidence is that while the benefits, such as they are, are short lived, the provision of the treatment has engendered a dependency on Mrs Rope’s part which is making a transition to self-reliance less, rather than more, likely. Dr Leahan told the Tribunal that it was a reasonable aim to reduce the number of interventions with health professionals Mrs Rope was having, to reach a stage where she would be largely self managing and would need only occasional consultations to prevent relapse, and that this was her (Dr Leahan’s) goal. However, Dr Leahan has been treating Mrs Rope for less than two years; in total she has received over 600 counselling sessions without, apparently, bringing her any closer to a capacity to dispense with the treatment. Put another way, and with respect, that Dr Leahan will succeed where others have failed must be doubted.
Dr Jetnikoff said that pain disorders generally have a very poor response to treatment particularly if they go through any length of time, an outlook exacerbated in Mrs Rope’s case by her unwillingness to work on any therapy issues due to a limited insight and her entire focus on pain. Her treatment regime over 30 years would appear to bear out that assessment.
The apparently static nature of her condition must be considered in the light of the cost of the treatment. In undertaking the cost/benefit analysis of treatment stipulated by Mansfield J in Holt, the Tribunal is persuaded that it no longer satisfies the requirements of s 16. The reviewable decision of 20 April 2018 should therefore be affirmed.
There is the temptation to recommend a tapering off of the psychological counselling rather than to end it cleanly. In its 2018 decision, the Tribunal made reference to the desirability of such an arrangement with respect to massage. However, the in-house facilitation in June 2017 between Mrs Rope and Comcare apparently reached an agreement for a tapering arrangement which, Comcare said, was subsequently abandoned by Mrs Rope. On balance, the Tribunal sees benefit in ending Comcare’s involvement in Mrs Rope psychological counselling immediately, not in the future.
Deglycerinated Liquorice – Application 2018/7375
In its written submissions lodged before the hearing, Comcare noted that the reflux oesophagitis accepted on 23 October 2003 should likely not have been accepted having regard now to more recent information about the condition. It submitted that the oesophagitis probably arose from Mrs Rope's chemotherapy administered to deal with breast cancer. Mrs Rope had started DGL to deal with intractable upper gastrointestinal symptoms due to chemotherapy, and continued with it to address nausea.
Comcare contended in those submissions that reflux was no longer a compensable disease because it was no longer materially contributed to by her employment. Alternatively, it contended that DGL ought not to be found to be treatment obtained in relation to the present effects on Mrs Rope's body of the reflux oesophagitis. It further asserted that any stress which was contributing to the oesophagitis was caused by Mrs Rope’s interactions with Comcare, and not by the psychological condition arising from her former employment via the 1987 accident. Stress caused by interactions with Comcare is not compensable, it contended. Comcare also submitted that there was no clear evidence as to the benefit (if any) experienced by Mrs Rope in continuing DGL.
Little flesh was placed on the bones of these arguments by Comcare during the hearing. Indeed what evidence was led on these questions – principally by Prof Hillman – substantially negated those arguments. In fairness to Comcare, however, it appears that the parties were in the midst of discussions about a possible settlement of this claim as the hearing proceeded, and indeed after the conclusion of the hearing a consent decision pursuant to s 42C(1) of the Administrative Appeals Tribunal Act 1975 was handed up by the parties. However, the Tribunal’s initial approval of an order under that section was overtaken by the breakdown of agreement between the parties when Mrs Rope withdrew the instructions of her legal advisers. Accordingly, the Tribunal must determine the question of whether Mrs Rope is entitled to compensation pursuant to s 16 of the Act for DGL on the evidence which was placed before it during the hearing.
Prof Hillman’s evidence was that the DGL served to mitigate the effects of gastro-oesophageal reflux experienced by Mrs Rope. It helped to control the sensitisation of the oesophagus to the irritation of the reflux. The recommended dose was up to two tablets per day, depending on the manifestation of symptoms. Prof Hillman linked the gastro-oesophageal reflux to stress Mrs Rope lived with. She conceded that her dealing with Comcare may be a factor in that incidence of stress. She also gave evidence that the DGL was effective treatment for the reflux, although the time might be right to once again test alternatives which had not worked when trialled some years ago.
The Tribunal is satisfied that the stress which produces or contributes to the gastro-oesophageal reflux relates to Mrs Rope’s compensable condition. That conclusion is not affected by the finding that stress related to dealing with Comcare also contributes to the reflux. The import of Prof Hillman’s evidence is that DGL is effective treatment of the compensable condition, notwithstanding that other alternatives might also achieve that goal.
The cost of the tablets ($83.29) is appropriately recoverable by Mrs Rope pursuant to s 16. The section refers to an injured employee being able to recover the cost of medical treatment. Prof Hillman’s evidence was that the tablets are not available in Australia, and must be imported from the United Kingdom. It follows that the cost of importation ($34.08) claimed by Mrs Rope is also recoverable pursuant to s 16.
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.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO.

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Associate
Dated: 22 January 2020

Date(s) of hearing:  15 October 2019 and 21 October 2019

Date final submissions received:      19 December 2019

Counsel for Mrs Rope:  A Anforth and R Livingston

Solicitors for Mrs Rope:  David Healey Solicitors

Counsel for Comcare:      S Wright

Solicitors for Comcare:  McInnes Wilson Lawyers

[2020] AATA 59

22 January 2020

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