SRFR and Comcare (Compensation) - [2020] AATA 378

SRFR and Comcare (Compensation) [2020] AATA 378 (7 February 2020)
Division:GENERAL DIVISION
File Number:2018/2543
Re:SRFR
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:7 February 2020
Place:Brisbane

The Tribunal affirms the decision under review.
......................................................................
Member D Mitchell
CATCHWORDS
COMPENSATION – liability accepted in respect of the aggravation of contact dermatitis and other eczema – section 16 of the SRC Act – reasonable treatment in the circumstances – reasonable amount of compensation – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Alamos and Comcare [2014] AATA 629
Comcare v Holt [2007] FCA 405
Comcare v Rope (2004) 135 FCR 443; [2004] FCA 540
Jorgensen and Commonwealth of Australia [1990] AATA 129; 23 ALD 321
REASONS FOR DECISION
Member D Mitchell
7 February 2020
INTRODUCTION

SRFR (the Applicant) is seeking review of a decision of the Respondent dated 8 May 2018.[1]
[1] Exhibit 1, T Documents, T1, pages 1-8, Application for Review of Decision.
The reviewable decision affirmed a determination dated 15 January 2018[2] that the Applicant is not entitled to compensation for the cost of hydrotherapy treatment and associated travel expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of the compensable injury of ‘aggravation of contact dermatitis and other eczema’ (the injury).[3]
[2] Exhibit 1, T Documents, T28, pages 405-409, Reviewable Decision.
[3] Exhibit 1, T Documents, T28, pages 405-409, Reviewable Decision.
BACKGROUND AND CLAIMS HISTORY
It is agreed that the Applicant has suffered long-term from eczema and atopic dermatitis, as well as being allergic to house dust mite, mould and grasses.[4]
[4] Exhibit 3, Respondent’s Statement of Issues, Facts and Contentions, page 1, paragraph 6 and Exhibit 10, Applicant’s Statement of Issues, Facts and Contentions, page 1, paragraph 6.
The Applicant commenced employment with the Employer on 11 July 2016[5] and had disclosed her conditions in her pre-employment medical assessments.[6]
[5] Exhibit 1, T Documents, T9, page 122, Employer’s Record of Incident.
[6] Exhibit 10, Applicant’s Statement of Issues, Facts and Contentions, page 1, paragraph 7.
The Applicant experienced a flare up in the symptoms of her eczema shortly after commencing this employment and sought medical attention, took time off work, and worked from home as required.[7]
[7] Exhibit 1, T Documents, T9, pages 121-135, Employer’s Record of Incident and T16, pages 274-283, Workers’ Compensation Claim.
Between 5 September 2016 to 24 September 2016, the Applicant attended the Avene Centre in Montpellier, France for thermal treatment.[8]
[8] Exhibit 1, T Documents, T7, page 15, Treatment Report from Avene Centre, France.
On 12 October 2016, the Applicant lodged an incident report with the Employer indicating that from around 11 July 2016 when she commenced at the Employer’s office she suffered a severe flare of eczema.[9]
[9] Exhibit 1, T Documents, T9, pages 121-135, Employer’s Record of Incident.
On 12 May 2017, the Applicant sought advice from the Employer as to whether workers’ compensation would cover around $8,000 in expenses,…

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 SRFR and Comcare (Compensation)

Details

AGLC: SRFR and Comcare (Compensation) [2020] AATA 378
Case: [2020] AATA 378
Decision Date: 7 February 2020

CaseChat Overview and Summary

This matter concerned an appeal to the Tribunal regarding a determination that the Applicant was not entitled to compensation for the costs of hydrotherapy treatment and associated travel expenses. The Applicant’s compensable injury was the aggravation of contact dermatitis and other eczema. The Respondent had accepted liability for this injury under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act).

The legal issues before the Tribunal were whether the hydrotherapy treatment at the Avene Centre in France, and the associated travel expenses, constituted "reasonable treatment in the circumstances" and a "reasonable amount of compensation" under section 16 of the SRC Act. The Tribunal was required to consider both the objective medical evidence and the Applicant's subjective circumstances in determining the reasonableness of the claimed expenses.

The Tribunal considered evidence from the Applicant's general practitioner, Dr Andersen, who supported the Avene treatment, noting its past efficacy for the Applicant and the Applicant's concerns about the side effects of conventional steroid treatments, particularly in light of her history of breast cancer. However, the Tribunal was also presented with evidence from a consultant dermatologist, Dr Andrews, who opined that the Avene treatment was not reasonable in the circumstances. Dr Andrews explained that the Applicant was experiencing an allergic flare, not atopic dermatitis, and that a targeted treatment course was available in Australia. While acknowledging the Applicant's hesitations towards dermatological treatment and her research, the Tribunal found that the Applicant had not provided direct evidence contradicting Dr Andrews' assessment of the risks, or lack thereof, of alternative treatments.

Ultimately, the Tribunal was persuaded by the evidence of Dr Andrews. It concluded that, after taking into account both objective and subjective considerations, it was not reasonable for the Applicant to obtain the hydrotherapy treatment at the Avene Centre in Montpellier, France, in the circumstances. Accordingly, the decision under review was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The reviewable decision affirmed a determination dated 15 January 2018[2] that the Applicant is not entitled to compensation for the cost of hydrotherapy treatment and associated travel expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of the compensable injury of ‘aggravation of contact dermatitis and other eczema’ (the injury).[3][2] Exhibit 1, T Documents, T28, pages 405-409, Reviewable Decision.[3] Exhibit 1, T Documents, T28, pages 405-409, Reviewable Decision.BACKGROUND AND CLAIMS HISTORY It is agreed that the Applicant has suffered long-term from eczema and atopic dermatitis, as well as being allergic to house dust mite, mould and grasses.[4][4] Exhibit 3, Respondent’s Statement of Issues, Facts and Contentions, page 1, paragraph 6 and Exhibit 10, Applicant’s Statement of Issues, Facts and Contentions, page 1, paragraph 6. The Applicant commenced employment with the Employer on 11 July 2016[5] and had disclosed her conditions in her pre-employment medical assessments.[6][5] Exhibit 1, T Documents, T9, page 122, Employer’s Record of Incident.[6] Exhibit 10, Applicant’s Statement of Issues, Facts and Contentions, page 1, paragraph 7. The Applicant experienced a flare up in the symptoms of her eczema shortly after commencing this employment and sought medical attention, took time off work, and worked from home as required.[7] [7] Exhibit 1, T Documents, T9, pages 121-135, Employer’s Record of Incident and T16, pages 274-283, Workers’ Compensation Claim. Between 5 September 2016 to 24 September 2016, the Applicant attended the Avene Centre in Montpellier, France for thermal treatment.[8] [8] Exhibit 1, T Documents, T7, page 15, Treatment Report from Avene Centre, France. On 12 October 2016, the Applicant lodged an incident report with the Employer indicating that from around 11 July 2016 when she commenced at the Employer’s office she suffered a severe flare of eczema.[9] [9] Exhibit 1, T Documents, T9, pages 121-135, Employer’s Record of Incident. On 12 May 2017, the Applicant sought advice from the Employer as to whether workers’ compensation would cover around $8,000 in expenses, including travel and accommodation for attending the Avene Centre.[10][10] Exhibit 1, T Documents, T13, page 265, Letter from Applicant to Employer. On 17 July 2017, the Applicant submitted a claim for worker’s compensation.[11][11] Exhibit 1, T Documents, T16, pages 274-283, Workers’ Compensation Claim and T17, pages 284-336, Employment Statement and Relevant Documents. By determination dated 21 September 2017, the Respondent accepted liability under section 14 of the SRC Act in respect of the ‘aggravation of contact dermatitis and other eczema’ deemed to have been sustained on 16 August 2016. The determination approved compensation for medical treatment with the Applicant’s general practitioner.[12][12] Exhibit 1, T Documents, T21, pages 385-386, Determination under sections 14,16 and 19 of the SRC Act.

Evidence

Evidence Before The Court

There are a number of documents before the Tribunal that relate to the Applicant’s interactions with the Employer and her claim for workers’ compensation which have formed a useful background, however, they do not need to be reproduced here.Evidence of Dr Susan Andersen As the Applicant’s long-term general practitioner, the Tribunal has before it a number of reports authored by Dr Susan Andersen and her clinical notes. In a Medical Certificate dated 2 September 2016, Dr Andersen provided a certificate for the Applicant to be absent for work for three weeks to attend treatment at the Avene Centre. In particular Dr Andersen provided:[20][The Applicant] has been a patient of mine for some years. She does suffer at times from severe flares in her eczema condition that has been a chronic part of her atopic tendencies. This current flare that particularly affected her face and neck and was probably triggered by an infection has been difficult to treat with our usual therapies and I do think she would benefit from again attending a special hydrotherapy clinic in Avene France that offers proved efficacy for this condition.She is unable to access such treatment currently in Australia and if we can avoid [the Applicant] having to use the alternatives of immune suppression treatment then I would recommend this wholeheartedly. These previous treatments in Australia had not worked for her particular condition nearly as well.[20] Exhibit 1, T Documents, T5, page 13, Letter from Dr Susan Andersen. In response to a letter from the Respondent seeking a medical report addressing a number of questions in relation the Applicant’s claim for allergic reaction and flare up of chronic skin condition – eczema,[21] Dr Andersen provided a letter dated 6 November 2017. In this letter Dr Andersen provided her opinion in relation to the Applicant’s injury between 16 August 2016 at the time of first presentation for the issue and the date of the letter. Dr Andersen’s letter was consistent with the subsequent acceptance of the injury by the Respondent. When asked about treatment, Dr Andersen provided it included “Recommended usual anti itch tabs and creams for eczema as well as discussed value of hydrotherapy program”.[22][21] Exhibit 1, T Documents, T25.1, pages 393-398, Request to Dr Susan Andersen for Medical Report/Clinical Notes.[22] Exhibit 1, T Documents, T25, pages 391-392, Report of Dr Susan Andersen. At the Hearing before this Tribunal, Dr Andersen gave evidence by telephone under affirmation. In response to questions asked by the Applicant, Dr Andersen:[23][23] Transcript, pages 9-12.·Confirmed she had been provided with a copy of Dr Andrews’ report dated 26 September 2018 and had had the opportunity to read and consider the report.·Advised that she had been treating the Applicant since 2007 and that the main and ongoing conditions she treats the Applicant for are asthma and eczema.·Said that the treatment she has prescribed for asthma has been bronchodilators like Seretide and Ventolin and preventers which are steroids called Becotide.·Said that the treatment she has prescribed for eczema include courses of Keflex which is an antibiotic, scripts for Valtrex which would help prevent having a nasty cold sore or herpes virus in the eczema.·When asked, what was the most severe she had seen the Applicant’s eczema, she said when the Applicant presented on 16 August 2016 as “I barely recognised it as [the Applicant] because of the redness and swelling of [her] face and [her] neck and the front of [her] chest, so that probably would be the worst time.”·Said that at that time she recommended the Applicant take a week off work as being out of the workplace might help, but also it was very embarrassing for the Applicant to be a professional person, presenting with her face the way it was due the unusual flare up.·Confirmed that the Medical Certificate provided on 16 August 2016 was the first one she had recorded even despite the Applicant’s previous breast cancer diagnosis and treatment.·Said that the Applicant was very distressed in the consultation on 16 August 2016 because she had just started a new job and it was difficult to do meetings or perhaps do the job as well as she would like to do it with her face and upper body looking the way it did.·Said that when the Applicant came back to see her at the subsequent appointment she was not sleeping as when she had a severe flare of eczema there is a lot of itch and pain and sleep is not so good and that affects the whole person.·When asked to talk about her recommendation to undertake the Avene treatment in France, she said:Well, when I saw you the second time on that 31st of August, we went through, you know, the general treatments of eczema, which are avoiding the allergens that might have provoked this, and at that time, it was still a bit unclear to me, anyway as your GP – what might have caused that severe flare, and of course later, dust mites have been, obviously, the trigger for you, and we knew you had a dust mite problem in the past. Also, we just go through general skincare, like dry skin is a big problem, and the steroids we did address but one of my first questions to people with an acute flare up of a chronic condition – and that can be asthma or depression or anything – is, what has worked for you in the past, and you said to me that you had paid your own money to go to this Avene Hydrotherapy Centre in 2010 and ’11 and found it very helpful, and I thought that very reasonable to do something like that, because often steroids are not that effective or they take quite a bit of time to work and still, the work is not being done, yet how much of that steroid is absorbed through the affected skin to have possible body effects, and in view of your breast cancer in the past, I thought it very reasonable – where you would be applying the creams – I thought it perfectly reasonable to do something that was more holistic and had worked for you. ·When asked whether she thought the Avene treatment was effective and if a different treatment in Australia with Cortisone and antibiotics and that sort of thing would have had the same outcome and what would the risk in that event be, she said: “… it is difficult to say, but eczema is still not fully understood and there are no really good treatments, it’s just like hitting it hard with steroids is the conventional drug type of treatment but I think anything holistic that may help prevent those side-effects of long-term, high dose steroids – and if it’s worked in the past – would be helpful, and it did indeed help you this third time until you went back into the building and it flared again.”

Decision

Reasons for decision

The Tribunal accepts that the Applicant has hesitations towards engaging with a dermatologist and certain types of treatments, noting that she has suffered long term eczema and atopic dermatitis while also being allergic to house dust mite, mould and grasses. The Applicant has not however provided any direct evidence that contradicts the evidence as to any risks, or lack thereof, of the treatments as described by Dr Andrews. As such after taking both an objective and subjective consideration of the evidence before the Tribunal, the Tribunal is persuaded by the evidence of Dr Andrews.CONCLUSION For the purposes of section 16 of the SRC Act, the Tribunal finds that it was not reasonable for the Applicant to obtain the hydrotherapy treatment at the Avene Centre in Montpellier, France in the circumstances. Accordingly, the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The Respondent contended that the emphasis placed by the Applicant on the fact that when she sought the treatment she did not know it was a workplace injury is of no consequence. The Respondent went on to say it was really a medical issue and in terms of what medical treatment the Applicant sought at the time or was open to her, it is clearly the case, for reasons that the Applicant probably genuinely, but the Respondent would say mistakenly held, had an aversion to seeking any specialist dermatological treatment.[56][56] Transcript, page 70.CONSIDERATION The medical evidence before the Tribunal shows that the Applicant’s general practitioner, Dr Andersen was supportive of the Applicant obtaining the Avene Centre treatment. Dr Andersen’s evidence was that the Applicant had reported to her that this treatment had been beneficial to her in the past and in the circumstances, given the Applicant’s level of distress, being a professional in a new job, and as she was prepared to bear the cost of the treatment, her opinion was that it was reasonable treatment in the circumstances. The Applicant herself provided submissions and journal articles in relation to the Avene Centre treatment and also in relation to her concerns about potential side effects of steroid and other treatments commonly used to treat the injury. At the request of the Respondent, evidence was provided by Dr Andrews, consultant dermatologist, who examined the Applicant prior to providing her initial report. Dr Andrews’ pre-hearing and post-hearing reports were consistent with the evidence she gave at Hearing. Dr Andrews’ opinion in summary was that the Avene Centre treatment was not reasonable treatment in the circumstances as she explained that, although the Avene Centre treatment is recognised to be useful in the management of atopic dermatitis, at the time that the Applicant sought this treatment she was experiencing an allergic flare of her eczema/dermatitis, as opposed to the symptoms of atopic dermatitis. Consequently, Dr Andrews outlined a course of treatment that the Applicant could have undertaken in Australia, which she said would have been targeted to the Applicant’s allergic contact dermatitis. Dr Andrews provided her specialist opinion as to the concerns raised by the Applicant in relation to the proposed treatment. Dr Andrews said that the benefit of the Avene Centre treatment in treating the Applicant’s condition did not warrant the cost. It was agreed that the Avene Centre hydrotherapy treatment was not available in Australia. It was further agreed that Avene products are readily available at a reasonable cost in Australia and form part of shorter term and long term treatments in relation to dermatitis and eczema. Based on the Applicant’s interpretation of her research, past medical history which includes invasive breast cancer, and the evidence from Dr Andersen, the Tribunal can understand the Applicant’s reasons for choosing the path of treatment that she did. The question for the Tribunal though is whether the Avene Centre treatment was reasonable for the Applicant to obtain in the circumstances. It is not in contention that the Avene Centre treatment was medical treatment obtained in relation to the injury.