SRFR and Comcare (Compensation)

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, 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.
On 21 September 2017, the Applicant wrote to the Respondent asking about the treatment in France. The Applicant wrote:[13]
What about the treatment in France? This determination doesn’t appear to cover that. That was the only viable treatment available to me for such a severe flare-up considering my medical history of breast cancer, and the lack of any equivalent hydrotherapy treatment in Australia.
I only undertook that expense because of the severe and traumatizing eczema flare and the fact I felt it was the only way I could keep working in my new job.
[13] Exhibit 1, T Documents, T22, page 387, Email correspondence between the Applicant and Comcare Delegate.
On 21 October 2017, the Applicant submitted a Medical Services Claim Form claiming compensation for hydrotherapy treatment, including doctors and treatment at the Avene Centre, associated flights, accommodation and car hire expenses. The claim for these items totalled $5,793.91 (the Avene expenses).[14]
[14] Exhibit 1, T Documents, T24, pages 389-390, Medical Services Claim Form.
On 15 January 2018, the Respondent determined that it was not liable to pay for the Avene expenses.[15]
[15] Exhibit 1, T Documents, T26, pages 397-399, Determination under section 16 of the SRC Act.
On 9 April 2018, the internal review officer affirmed the decision that the Respondent was not liable to pay for the Avene expenses.[16]
[16] Exhibit 1, T Documents, T28, pages 405-409, Reviewable Decision.
On 8 May 2018, the Applicant sought review of the decision by this Tribunal.[17]
[17] Exhibit 1, T Documents, T1, pages 1-8, Application for Review of Decision.
It is noted that throughout the claim, review and Tribunal processes the Applicant has submitted a number of statements and related research documents. These have been considered in conjunction with the medical evidence and evidence provided during and after Hearing.
A Hearing of this matter was conducted on 12 April 2019. The Applicant was self-represented, appeared in person and gave evidence under affirmation. The Respondent was represented by Mr Charles Clark of Counsel, instructed by Lehmann Snell Lawyers. Following the Hearing the Applicant sought leave to put further questions to Dr Megan Andrews, consultant Dermatologist. Consequently, post-Hearing, a supplementary report was received from Dr Andrews together with submissions by the Applicant and Respondent in reply.[18]
[18] Supplementary Medical Report provided by Dr Megan Andrews, dated 3 June 2019.
THE LAW
Section 16 of the SRC Act deals with compensation in respect of medical expenses and relevantly provides:
(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.
…
(6) Subject to subsection (7), if:
(a)compensation in respect of the cost of medical treatment is payable; and
(b)the employee reasonably incurs expenditure in doing either or both of the following:
(i)making a necessary journey for the purpose of obtaining that medical treatment;
(ii)remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
Comcare is liable to pay compensation to the employee:
(c)in respect of the journey—of an amount worked out using the formula:
Specified rate per kilometre x Number of kilometres travelled
where:
specified rate per kilometre means such rate per kilometre as the Minister specifies, by legislative instrument, under this subsection in respect of journeys to which this subsection applies.
numbers of kilometres travelled means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey).
(d)in respect of the employee remaining for the purpose of obtaining the treatment—of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.
Medical treatment is relevantly defined in section 4 of the SRC Act to mean:
(a)medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
…
ISSUES
At Hearing the Respondent conceded that the hydrotherapy treatment at the Avene Centre in Montpellier, France constituted ‘medical treatment obtained in relation to the injury’ for the purpose of section 16 of the SRC Act.[19] Based on the evidence before the Tribunal, the Tribunal accepts this position.
[19] Transcript, pages 4-5.
The primary issues before the Tribunal are:
1.Whether it was reasonable for the Applicant to obtain the hydrotherapy treatment at the Avene Centre in Montpellier, France (the Avene Centre) in the circumstances; and
2.If so, what is the reasonable amount of compensation that is appropriate for such treatment?
EVIDENCE
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 31^st 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.”
On cross-examination, in response to questions asked by the Respondent, Dr Andersen:[24]
[24] Transcript, pages 12-21.
·Confirmed she understood that the Applicant had previously attended the Avene treatment in France on two occasions a year apart.
·Confirmed that the Applicant had not consulted her in relation to attending the earlier treatment at the Avene Centre in France. She said the Applicant did not have to consult her, she had done her research and she had the treatment after doing her detailed research.
·Confirmed that she is not a specialist dermatologist, however has been a GP for 45 years and has seen a lot of eczema.
·When asked if she considered referring the Applicant to a specialist dermatologist on 16 August 2016, she said:
When we spoke about that, [the Applicant] told me about her probably not so good experience previously with dermatologists, and I understand that because eczema is still not well treated, it’s not well understood, and sometimes intelligent people like [the Applicant] who have got the condition, know more about it than specialists and GP’s because they are dealing with the condition.
·Confirmed she agreed with the diagnosis of Dr Andrews that the Applicant has an underlying atopic diaphysis predisposing her to atopic dermatitis and asthma and an underlying house mite allergy which is not uncommon in atopic’s.
·Confirmed she does not disagree with Dr Andrews’ opinion in relation the Applicant’s exacerbation of her atopic dermatitis being a result of the exposure to the aeroallergen – in this case, house dust mite – documented to be present in the excessive amount in the workplace.
·Said she did not disagree with Dr Andrews’ proposed treatment however said she disagreed to it being the only alternative. She said it is a dry skin problem so it is good to have gentle cleansers and creams but the issue is about the steroids. She said that the proposed dose of oral prednisone was standard treatment for a severe flare without consideration of possible side-effects that may affect certain people.
·When asked, what did she say to Dr Andrews opinion that she did not believe that UVB therapy, oral prednisone and topical corticosteroids have the potential to alter the Applicant’s resistance, or the recurrence of her documented breast cancer, she said:
Well, that is her opinion, and there would perhaps be a lot of people who would agree with that. I do not think the work has been done on how steroids, through skin that’s already got a problem – nobody has done the studies on the widespread use of steroids, how much is absorbed into the body and the body tissues underneath. I do not believe there is a study. Let me say that a similar thing with steroids in puffers for children with asthma – years ago, industrial strength steroids were used in those puffers and young children had growth problems from it, bone problems from it, and then it completely turned around about using the least amount of steroids that you possibly can. I think there is still a lot of work to be done on that area. The skin absorbs lots of substances.
…
There may be no evidence with a recurrence of cancer, but there is certainly no work actually being done on how much steroid is absorbed through the skin when the barrier is affected, and work would need to be done on that and it may be a lot more than we realise. And then there may be a tie-up with immune suppression with cancer in that area. I just do not think the work has been done.
·When put to her that there is a measure of speculation in her answer, she said:
Well, there is, there is. But there’s a lot of things in medicine that aren’t fully understood. And as I gave the example with the steroid puffers with children, and indeed adults now, things in medicine change. And within five or ten years, there might be quite a different feeling about this and all [the Applicant’s] feelings about it and indeed research may be proven true.
·Agreed that the understanding of the process of the presentation was a fairly severe outbreak of allergic dermatitis on top of the atopic condition, perpetuated by the exposure to the house dust mite.
·Said she understands that the Applicant had not consulted a dermatologist in the past 10 years.

In response to questions asked by the Tribunal, Dr Andersen:[25]
·Said she does not have any other patients who have attended the Avene Centre in France.
·Said she knows the Avene company and recently attended a couple of GP meetings about Avene products because a lot of dermatologist now really like their products for psoriasis and eczema. These are over the counter products. She said the dermatologist giving the meetings for GPs did not mention the hydrotherapy centre.
·Said that generally the severe flare up like the Applicant had in 2016 with her face, neck and upper body that would have definitely been an allergic reaction and that it “was just so severe.”
·Agreed it would be difficult to say how long the treatment proposed by Dr Andrews would have taken to be effective enough to allow the Applicant to return to work in person. She said: “Even if [the Applicant] had been removed from that workplace, it would still be hard to know how long it could have grumbled along. And sometimes it feeds on itself too. I think that’s the thinking, you know, with that hydrotherapy centre, that, one, you remove yourself. And, you know, we did not realise at the time, but removing her from the workplace was a big thing. And then just restoring the skin’s balance of pH and natural barrier. That built up some resistance to it keeping breaking out. Except she went back to the workplace again.”
·When asked if in her view as a longstanding treating general practitioner of the Applicant she considered the Avene Centre treatment in France to be reasonable in the Applicant’s circumstances, she said yes she did.
·When asked to elaborate on why this was her view, she said:
Because I know how frustrating eczema is, particularly with a severe flare, how we don’t have a lot of good treatments and it is like just hitting people with steroids. I understand on a level [the Applicant’s], you know, wish not to bathe her chest area or, you know, absorb a lot of steroids either orally or through her damaged skin surface into her body because of those unknown – you know, we do not know how much is absorbed ….
[25] Transcript, pages 22-24.
Evidence of Dr Megan Andrews
By way of letter dated 23 August 2018, the Respondent requested that Dr Megan Andrews examine the Applicant and provide a Report.[26]
[26] Exhibit 6, Briefing letter to Dr Andrews, dated 23 August 2018.
Dr Andrews examined the Applicant on 14 September 2018 and provided a report dated 26 September 2018.[27] To assist with Dr Andrews’ assessment she was provided with a summary of the Applicant’s case including communication between the Applicant and her workplace, notes from the Applicant’s general practitioner, Dr Susan Andersen, medical records from the Mater Hospital specialist clinics, copies of proceedings of the Medical Assessment Tribunal, a report provided by Dr David Douglas, consultant occupational physician, and an indoor air quality assessment summary provided by Dr Spaul as well as updates related to this.[28]
[27] Exhibit 7, Medical Report of Dr Andrews, dated 26 September 2018.
[28] Exhibit 7, Medical Report of Dr Andrews, dated 26 September 2018, page 2.
Dr Andrews’ report was 13 pages long and provided a history and response to 12 questions she was asked to consider by the Respondent. Of most relevance are questions 7 through to 11 and Dr Andrews’ responses. They are as follows:[29]
[29] Exhibit 7, Medical Report of Dr Andrews, dated 26 September 2018, pages 10-12.
7. Having examined the Applicant and reviewed her medical history, what medical treatment, if any, would you recommend for the Applicant to treat her condition?
On the initial acute exacerbation of her facial and neck dermatitis I would encourage the use of Avene Extra Gentle Cleanser, Rich Avene Moisturisers, mid-potency topical steroid in the form of Advantan fatty ointment with occlusion with wet washers twice daily for five to seven days under closer observation for the development of eczema herpeticum. Oral prednisone at a dose between 25 and 40 mg could be administered for three consecutive days if oedema, itch or symptoms were severe. A swab would be performed of any wet or sticky areas as described by [the Applicant] and treatment would be directed appropriately with antistaphylococcal antibiotics.
I would support the removal from the workplace, working from home where able, and continuing topical therapy. The avoidance of all recognised irritants and allergens would be encouraged and I would stop hydrocortisone cream, Perfect Potion moisturiser and QV Flare Up due to their well recognised potential for exacerbation of dermatitis and instead elect to use hypoallergenic ointment products only.
I would not proceed to the use of cyclosporine or azathioprine but in view of [the Applicant’s] previous description of her skin improving with sunlight would consider a further six week course of UVB therapy. I do not believe that UVB therapy, oral prednisone and topical corticosteroids have the potential to alter [the Applicant’s] resistance to recurrence of her documented breast cancer.
8. Are there any other relevant medical matters on which you would like to comment? If so, please do.
[The Applicant] is a relatively young mother with a history of an aggressive breast cancer and understandably wishes to ensure she in no way alters her body's resistance and potential for recurrence of her cancer. She has however chosen to avoid topical steroids, oral steroids and possibly further UVB therapy for which there is no evidence that these can alter her immune response and predispose to recurrence of the cancer.
She certainly had a good response with the Avene therapy and the duration with which her skin subsequently remained stable and for that reason, combined with its safety profile, chose to pursue this.
Avene Centre in Montpellier, France — 'hydrotherapy treatment'
9. In your opinion, is there any objective medical benefit in the Applicant obtaining the 'Avene-hydrotherapy treatment'? If so, could you provide us with journal articles, publications, or any evidence which you have used to form your opinion on the benefit of the treatment?
There is objective medical benefit in the applicant obtaining the Avene hydrotherapy treatment. This is primarily an occlusive treatment with hypoallergenic products and intense moisture and mineral containing waters for which there are a number of papers supporting its role in the management of dermatitis and other conditions.
10. Are you familiar with any treatment within Australia which is similar to the 'Avene — hydrotherapy treatment' obtained by the Applicant?
There is no equivalent treatment to the Avene hydrotherapy treatment because the mineral springs providing the occlusive therapies are not found in Australia. The extensive Avene products however are available and can be used in an intense fashion to include the spring water, the soap substitutes, the gentle cleansers and rich moisturisers. An advantage of attending the Avene hydrotherapy treatment of course is removal from the workplace, removal from the stress of everyday environment and extended treatment periods of two to three weeks.
11. The approximate cost of the Applicant attending the Avene Centre to receive the 'hydrotherapy treatment' was approximately $5,825.56. Considering the cost associated with the 'Avene — hydrotherapy treatment', do you consider it reasonable medical treatment for the Applicant in the circumstances?
Avene hydrotherapy treatment is recognised to be useful in the management of atopic dermatitis and other conditions however it is not something most dermatologists would refer patients for, particularly for localised dermatitis as in [the Applicant’s] case, but certainly support its use.
[The Applicant] has a relatively common and well recognised manifestation of atopic dermatitis (house dust mite exacerbated facial and neck dermatitis) and I would encourage her to see a dermatologist, commence topical therapy as documented above and have a regime for which she can use with exacerbations which of course will continue to occur despite her best measures to avoid house dust mite in her domestic environment and that of her workplace.
She needs counselling regarding the safety profile of all of these agents in her particular case and a treatment plan needs to be documented for her.
At the Hearing, Dr Andrews gave evidence in person, under oath. In response to questions asked by the Respondent, Dr Andrews:[30]
[30] Transcript, pages 43-52.
·Confirmed that her qualifications include a Bachelor of Medicine, Bachelor of Surgery from the University of Queensland and faculty of the Australasian College of Dermatologist.
·Confirmed that she practises as a consultant dermatologist and has done so for close to 20 years.
·Confirmed that on 14 September 2018 she conducted an assessment of the Applicant and together with looking at some documentary material she compiled a report dated 26 September 2018 and that the contents were true and correct.
·Explained that atopic diathesis refers to a state a patient has where they have a predisposition to eczema, hay fever or asthma, one, two or three. It is an inherited tendency, often with a family history as such.
·Confirmed that her diagnosis of the Applicant was atopic dermatitis and asthma.
·Explained that topical corticosteroids is the mainstay of treatment for atopic dermatitis, a cream applied for its anti-inflammatory effect, to settle the inflammatory flare of atopic dermatitis. Topical means it is applied to the skin externally.
·Explained that immunomodulating topical and systemic agents are for control or suppression of the overactive immune system, which is often the case in atopic dermatitis, creams and oral agents can be used to suppress that immune response and control the disease. They include tacrolimus, pimecrolimus, cyclosporine, Imuran, other agents that can be effective in controlling the immune response.
·Confirmed she is aware of the Avene Centre but has not been there.
·Explained that Perfect Point Double Sooth was an over-the-counter, natural type preparation that the Applicant has bought herself, ingredients of which are not well-documented.
·Confirmed that the Avene Centre produce a range of skincare products which are readily available at almost all pharmacies and the full range is now available in Australia and has been over the last five to seven years. These products do not require prescriptions and are found in the moisturising aisle of most pharmacies.
·Explained that QV products are commercially available cream, moisturiser, soap substitute. The QV Flare Up refers to one of its types, which has an antiseptic ingredient which is notoriously harsh on the skin, but can be used when a secondary infection is evident.
·When asked to consider the Applicant’s longitudinal history, in line with the reporting that she used 1 per cent hydrocortisone cream, occasional oral courses of steroids and comment on the Applicant’s use of cortisone treatments, she said:
The [Applicant] has been quite resistant to using topical and oral agents, and has used them on a self-regulated base more recently, in the last ten years, not under the direction of any dermatologist. The 1 percent hydrocortisone cream listed there is a very weak cream, and available over the counter, and, in a cream form is not really appropriate on dermatitis. The oral steroids, there is a mention of them with her dermatologist in [2000-2001], Dr Gundmundsen.
·When asked what she was describing at September 2018, inasmuch as she reported: “Subacute dermatitis on the face, with patch islands of normal skin”, she said:
So, this refers to the characteristic presentation of an allergic contact dermatitis – so an eczema or dermatitis; the words are used interchangeably – whereby the distribution on the skin would suggest an agent, usually in the air or directly applied, is causing this. It is occurring on those convex areas, so on the eyelids, on the chin. That distribution is typically one seen with an aerosol or airborne allergen. It is not the typical appearance of endogenous, unaffected atopic dermatitis.
·She confirmed that the Applicant’s presentation in September 2018 was most consistent with allergic contact to the airborne agent, which they felt to be house dust mite, due to its typical distribution.
·When asked what symptoms a predisposition to atopic dermatitis can lead to, she said:
Atopic dermatitis typically presents - is due to a fault in the barrier of the skin. So patients have sensitive skin, redness, flaking, peeling, occasionally a more weepy or blistery presentation. Itch is more common than stinging or burning, but all can occur. And it is the distribution that gives us the clue as to the particular type of dermatitis; in this case, the atopic, where, typically, it’s in the folds of the arms and behind the knees and patchy areas elsewhere.
·When asked, what happens when there is exposure to the underlying allergy to house dust mite, she said:
So, house dust mite is a ubiquitous aeroallergen, so it is in the air, and so its distribution is typically on convex surfaces, and the most sensitive site will be the face and eyelids, typically, around the knees, around the ears, above the chin, and patch areas rather than a diffuse general involvement, which is more typical of atopic dermatitis.
·She said the symptoms of the house dust mite allergy were not unlike atopic dermatitis and include itching, as sensitive, fluctuating redness, burning and stinging intermittently, intolerance to a number of products. So not unlike atopic dermatitis, but the distribution is different.
·Said that the Avene extra gentle cleanser and rich Avene moisturisers she had proposed are the exact ones that were used in the Avene clinic and they are available in Australia over the counter.
·When asked in terms of access to skin products, whether these products were similar to or the same as the Applicant would be exposed to if she was at the Avene Centre in France, she said – they were the same on the prescription provided from the summary in France, TriXera, gentle cleanser, Cicalfate were all used, and they are all readily available.
·When asked to explain, what is mild potency topical steroid, in the form of Advantan fatty ointment, with occlusion, with wet washes twice daily, for five to seven days, she said:
So, this is the standard treatment for facial dermatitis of a number of different causes. We tend to avoid the really potent topical steroids on the face, due to the side effect of potential irritation. So, the mid-potency, and well-recognised for its value on the face and in children, is Advantan fatty ointment. We use an ointment, not a cream, and that is important, to avoid potential allergens, and the application of a wet washer enhances the penetration and efficacy of the cream. That is the theory behind the Avene products, similarly.
·She agreed that her recommendation about oral prednisone at a dose of between 25 and 40 milligrams potentially being administered for up to three consecutive days if oedema, itch or symptoms were severe was not necessarily a given, but a contingency in those circumstances. She said that it would be a contingency that would depend on the assessment at the time, and how severe and troublesome it was, but the three-day course is often very effective, and that dose is most often side-effect free and without long-term sequelae.
·When asked if her understanding of the state of medical science is that there is no evidence that the use of steroids alters the immune response predisposed to recurrence of cancer, she said it is. She said, the doses that they use on the skin and in oral tablets of the prednisone are anti-inflammatory, and not immunosuppressive, so they do not increase the risk of malignancy, and steroids are a well-recognised part of chemotherapy for malignancy. She said that a type of UVB therapy can slightly increase skin cancers over 20 to 30 years, but no internal or solid malignancies are increased in that setting.
·When asked what she meant in her report when she said there is objective medical benefit in the Applicant obtaining Avene hydrotherapy treatment, she said:
Well, the patient is removed from her environment of house dust mite exposure. She is placed in a stress-free environment, and there is intense application of regular moisturisers and soap substitutes, and the mineral containing anti-inflammatory hydration, which is a well-recognised part of – or the advantage of that unit. And patients do report an improvement.
·Confirmed that there is no equivalent treatment to the Avene Centre in Australia. She said: “Avene’s – they believe their mineral springs and the anti-inflammatory action within that is unique, and one of the major ways their product works. And that spring is not available here, but it is available in the bottle spray solutions, and they repot that to be a similar product to the springs in France.”
·Said that what is available in the springs is available in Australia as a product, including soap substitutes, cleansers and rich moisturisers and particularly in the spray solution.
·When asked to explain her response to question 11 in her report, she said:
So, the studies on this product are all based on erythrodermic generalised atopic dermatitis… Erythrodermic …. refers to involvement of the skin with dermatitis over 80 to 90 per cent of the body, and it is these patients who get the significant improvement – adults and children – at the time of the clinic and for some period after. It is not a treatment as you can imagine, it is quite intensive that we would use – that is used for localised disease, nor are there any studies supporting its role in that, and similarly, no studies supporting its role in treatment of allergic contact dermatitis, as is the case here, with the house dust mite allergy.
·When asked about the cost of the products she was recommended could have been sourced from a local chemist (with or without prescription) she provided the following estimates per unit:
oAvene extra gentle cleanser – between $18 and $28
oRich Avene moisturisers of which there are several (TriXera, TirXera balm, Cicalfate and similar) – between $28 and $40
oAdvantan fatty ointment – between $28 and $35
oWet washers – may be $5 and then use tap water, wring it out and gently apply over the face
oOral Prednisone - $30 for 30 tablets
·When asked over what period of time she would anticipate this treatment would take, she said it usually would respond very well with compliance to all of those agents and you would usually see a symptomatic improvement usually within the first to five days and essentially clearance over about 10 to 14 days if removal of the allergen has been possible.
On cross-examination, the Applicant asked Dr Andrews a number of questions, often quite long questions which also contained information about her past treatments. In response to questions asked by the Applicant, Dr Andrews told the Tribunal:[31]
[31] Transcript, pages 52-60.
·That she does know that patients regularly travel to Avene and when asked why does she think they do that, she said: “They are generally atopic erythrodermic patients with severe disease and the full intensive treatment is very effective in those that have not had a response to other things or prefer, like [the Applicant], to avoid things.”
·That the main difference between the treatment someone gets at Avene and the treatment available in Australia from Avene products is mainly the withdrawal from stress.
·When asked if patients had had effective treatment in Australia, whether they would not necessarily resort to going overseas for treatment, she said “They might have elected as [the Applicant] did, not to use the standard treatment.”
·That there are very few risks with medium strength cortisone on the face and oral prednisone. The idea of the topical steroid, the cream for the abbreviated period of time, 7 to 10 days, has very few side effects. It is very safe. It does not trigger eczema herpeticum and it does not give internal immune suppression. Its use on those 7 to 10 days should not give any thinning of the skin or any long-term risk of infection.
·When asked what her response would be if the skin rebounds and flares when the treatment is immediately stopped, she said that in the Applicant’s case as she was comfortable with Avene products, so she would optimise their use and would withhold all those other products that were exacerbating the skin and then the Applicant could reduce the frequency of application. Instead of stopping the Advantan immediately, the Applicant could use them in a pulse form, so two days a week for two to four weeks afterwards with no risk of atrophy or rebound.
·When asked, what had changed in UVB treatment since the Applicant had it 10 years ago, she said probably the way the treatment is applied. So, applied with the occlusion, the withdrawal is slower and patients, and the Applicant, would have at that time, probably had significant exposure to house dust mite that was the reason it persisted.
·That it is quite common with atopics, to have a good year and a bad year, it is hard to say over that period of time why it did not improve but she thinks an attempt is absolutely warranted and that is standard therapy that, in her expertise, rarely fails.
·When asked how much weight she puts on the stress a particular treatment has on her patients in terms of what they are prepared to do to their bodies for potential treatment, she said that is her major discussion with the patient.
·That she understands the Applicant’s concerns and things that she wants to avoid but she thinks that the Applicant is not entirely correct in her assumption of the potential harm of these things and she probably needs to be updated and get another assessment.
·That she understands the Applicant’s decision to go to Avene, however she thinks that the Applicant was not appropriately diagnosed or directed at the time.
·That there are no solid organ malignancies associated with Tacrolimus Prednisone, it does not increase the risk of malignancy or recurrence of it and nor do the topical creams. It is not associated with solid malignancies and the Applicant’s cancer was a solid malignancy.
·When referred to a newspaper article (Exhibit 11) and asked whether there are a lot of people who are suffering from ongoing eczema symptoms because there is no effective management, she said “No”. When then asked then why do these people suffer, she said:
… You know, plenty of patients have ongoing chronic disease and as – you know, everyone is offering the best creams, so you go to pharmacies, you buy the perfect potion and other moisturisers with all the ingredients. … I have a proportion of patients in my practice that are not getting relief with the standard treatments but we adjust things, you know, in different combinations and work through it and talk to them about potential side effects.
·When asked if she knows of dermatologists in Australia that prescribe the Avene Clinic to their adult patients, she said no one prescribes it as it is not a prescription product. She said we would support it if patients elect to go, and for paediatric patients dermatologists use it, and if you wanted to go, she would certainly say yes, it does no harm, but she thinks they could do something quite similar here.
·That the side effects of using steroids long-term is that if the potency and duration of treatment is incorrect and if they are being used without the direction of a dermatologist or GP are atrophy or thinning of the skin, increase to telangiectasia or blood vessels in the skin, a predisposition to haemorrhage or etymology, that bruising under the skin due to thinning of the blood vessels, predisposition to rosacea or acne, and generally systemic absorption is minimal so she does not believe any osteoporosis and certainly no anxiety or depression on withdrawal would occur.
·That she takes a holistic approach. In describing how she would have treated the Applicant in 2016 at the time of the flare she said:
You know, I would have got all that history from you prior to commencing any treatment and previous malignancies are always relevant but I do not think your diagnosis was correct at the time because it is not – allergic contact dermatitis does not settle with Avene and, as you know, you flared at the time when you came back. So, as soon as you were exposed to house dust mite all the good of that treatment, as many patients with Avene discover, risking flares when you get home because you are not in that artificial little bubble that is provided by Avene and the one – the documentation of the long-term benefit of the erythrodermic atopic is a very different disease, whose immune system has been suppressed for that period of time. You know, they have had that immune response to be settled and, as you know, it does not cure it, it all comes back again and that is why those patients go regularly.
·That it might take 6 weeks to get the combination of treatment right.

In response to questions asked by the Tribunal, Dr Andrews:[32]
·When asked if there was a lot of medical evidence in relation to eczema or dermatitis, said:
We have an enormous amount of evidence. It is a very common condition. There is an enormous amount of research currently of particular specific anti-inflammatory agents and one that will probably be released this year because of the demand by patients who do not respond to standard treatments or require long-term therapies, which are potentially adverse – have potential adverse effects but, yes, these treatments are very well-recognised and the safety profile is very good.
·Said, that there is a lot of different treatment options – combinations of creams, moisturisers, withdrawal of cream regimes and additional agents that can be applied, including the antihistamines and the avoidance of and identification of allergens and removal.
·The Avene 10 spray costs between $20 and $35.
[32] Transcript, pages 60-61.
Evidence of the Applicant
Throughout the Tribunal process the Applicant has submitted a number of personal statements, articles or references to articles which form part of her research, a response to the initial report of Dr Andrews, a Statement of Issues, Facts, and Contentions, and a response to the supplementary report provided by Dr Andrews after the Hearing.
In the Applicant’s written material, she has been very open in providing a history of her injury and condition, originating from birth until the date of the Hearing. This material included photographs taken in relation to the 2016 flare up. The Applicant has also provided at times in depth reasoning for her interpretation of the information found in her research.
As this matter relates to an injury where liability has been accepted there is no need to explore the history of the injury to an extent, beyond why the Applicant chose her treatment path. It is the reasonableness of such treatment for the purposes of section 16 of the SRC Act that is in question. It is accepted that the Applicant experienced an ‘aggravation of contact dermatitis and other eczema’ and that she suffers from long standing eczema and atopic dermatitis as well as being allergic to house dust mite, mould and grass.
As such the facts in this matter are not contentious, the divergence between the parties comes down to the treatment of the injury and what is reasonable.
To that end the Applicant’s evidence at Hearing was consistent with her written submissions. These statements have been considered by the Tribunal, however, for the purposes of this decision they do not need to be summarised as to do so would be a duplication.
At Hearing the Applicant told the Tribunal that:[33]
[33] Transcript, pages 28-32.
·For her the risks of not having the flare treated effectively and quickly were potentially losing her job because she was on probation and she also has a number of other medical conditions that could have been triggered and the stress of cancer recurrence. She said that even if the cancer recurrence is just a linkage in her mind she does have enormous worry over taking large doses of immunosuppressants when she is in a high-risk category for cancer recurrence.
·She has a small child and a family.
·As a result, going to the Avene Centre was the choice she made.
·She said the reason she had to make the choice was because she was not aware of any ongoing issues with the building that she was working in. While there was an open investigation into the Employer’s building at the time she started work there, she had no knowledge of that and neither did her supervisor. The reason she did not do what is normally required under a workers’ compensation sort of claim was that she did not know it was a workplace injury at that time.
·As eczema can be triggered by a whole range of things it was not clear at the time she had the flare that it was an allergic condition.
·It was a whole mental health and physical health decision that she made to go to France and she made that decision because the treatment had been effective for her in the past and it is known to be incredibly effective.
·Dermatologists in Australia do recommend that their patients go to Avene for treatment especially if they are young because it can almost be a cure for them.
·She is not a doctor, she is not medically trained but is scientifically trained having done up to third year biochemistry at Sydney University and is well acquainted with medical journals and knowing what medical results are, including the statistics.
·She highly regards her own ability to assess what is effective in scientific treatment and would have never travelled to the Avene Centre unless it had been scientifically backed up by years of research.
·She had not been near a dermatologist in 10 years, however had sought advice from Dr Graham Solley who gave her a course of injections, desensitisation injections for dust mite and grasses, which were of limited benefit.
·Dermatology in the past has resulted in lots of complications which she now suffers from like eczema herpeticum and it has never been effective for her. She has had so many steroids in the past and she has provided her extended history of her lifetime struggle with eczema to the Tribunal to illustrate just how many steroids that she has taken throughout her life and how ineffective they are.
·She believes that if she had undertaken treatment in Australia there was no guarantee it would have worked and it could have lingered on for months causing productivity issues, time off work and costing a lot more than the $5,600 she is claiming in compensation for expenses to go to France.
·In terms of what she did when it flared was she undertook most of what Dr Andrews recommended. She put hydrocortisone on her face, took a course of antibiotics, these were ineffective. The antibiotics did help a bit but did not clear it up and she was still suffering by the time she got on the plane on 3 September 2016.
·The treatment at the Avene Centre was incredibly effective. One of the benefits of the Avene Centre is it is not just effective in clearing an existing flare but it has long term benefits because it is proven to regulate the allergic response on the skin. So, it is proven to act longer term especially in children, which is why a lot of the paediatric dermatologists send children to France or recommend this treatment, if the parents can afford it for their kids.
·There is no doubt in her mind that it was completely reasonable treatment in the circumstances.
On cross-examination, in response to questions asked by the Respondent, the Applicant:[34]
[34] Transcript, pages 32-35.
·Said that her condition did reflare after she returned from France but it was not as severe.
·When asked about her working from home in August 2016 whether it was the work from home that was productive or whether the time away from work was productive in terms of the impact that it had on her condition, she said at that time she had to prepare contracts and she could do that from home, but not all of her work could be done from home. She had client meetings and presentations and she did talks. At that particular time, she had work she could do from home and it helped not having to face people.
·When asked if the time away from work had any impact upon her symptoms, she said it was hard to tell because when she gets an eczema flare it can take a long time to calm down, which is why she was trying antibiotics and hydrocortisone, hoping it would. She said she was also going into work intermittently to pick things up, talk to colleagues and have meetings and then went home. It was not a full exclusion from her workplace.
·When taken to her email dated 17 August 2016 where she had written “I’ve been to the doctor but western medicine doesn’t really have anything for it. Except cortisone/immune suppressants – which you can’t use for long” if that was an attitude that she had of not having much faith in what is called western medicine, she said:
Well, you know I would say what’s provided in Avene is western medicine because it’s scientifically proven but I think – you know, I’ve done a fair whack of prescribed treatments for eczema and I haven’t really found any great relief from them. And certainly, steroid use has in the past aggravated it over the long term, spread it to new parts of my body. You know, caused me intermittent depression and anxiety. Like, you know, it’s – I haven’t found that what is offered in Australia has been effective treatment for my eczema, so that’s right. I would not say I am against western medicine though, like I certainly go to the doctor and specialist. If someone can help me I would take that help, you know, with open arms.
·Confirmed that she had not seen a dermatologist in 10 years and when asked whether she thought it might be of some efficacy to do so given the amount of time that had passed, she said she had been to specialists, not dermatologists, but immunotherapists. She said if there was anything new, she reads literature and is in support groups and other things, then she would have gone back.
·When asked if she considers that she is doing a lot of self-diagnosis of her own condition, she said “No, I don’t.”
·Confirmed she had talked to Dr Andersen about going to France and that they had not discussed her seeing a dermatologist.
·Confirmed that she had only seen one immunologist, Dr Solley in around 2012.
In response to questions asked by the Tribunal, the Applicant:[35]
[35] Transcript, pages 37-40.
·Confirmed she had received the Avene Centre treatment in France three times now.
·Confirmed that the first time she had the treatment a year apart. She said:
So, what they recommend is three years in a row because you can get, you know, virtual cure rates if you, you know, have this treatment three years in a row. And, you know, to be frank I think some of that is to do with the French medical system, which subsidises people to go to Avene in France and their insurance pays for three weeks per year, so they recommend it for three years for three weeks. And so, what happened was I had the treatment in 2011 after I had a bad flare on my arms and my legs after the Queensland floods. I helped some neighbours shovel mud after the even and after that I came up with a big flare of eczema and I don’t think that was house dust mite, I think it was possibly something else. But anyway, it took a long time for me to control that flare even with cortisones and eventually, you know, I thought I’d go to France just because so many people had recommended it. So, I went to France and I was amazed at its impact. So, for two weeks there the flare worsened and it was very uncomfortable and in the final week it completely cleared up. And I came back and it flared again when I got home but then for the rest of the year it was so much more intact. I went the second time because I was doing some work over in Europe anyway and it was recommended that you do it three years in a row. So, the second time I went I only had two weeks of treatment but that was enough to clear me again. And then I had until the flare in 2016 pretty great skin, like the eczema was only a minor – you know, it was only little patches on my heels and on my knees and that sort of thing, so it didn’t interfere with my work at all. And, you know, I was so grateful to have gone because it meant four years of much higher standard of living and, you know, coping with work and stress and that sort of thing. So, you know, being one of the only reliable things that has actually worked for me it’s what I turned to when it flared again.
·That the 2016 treatment helped. She said she is still a lot more reactive than what she was prior to the flare up at the Employer’s building, so she has had two years of sensitive skin but it has not been disabling and she has still been able to go to work every day.
·It was only after she got back from France that she realised the flare was caused by her workplace.
·The Avene treatment kind of worked, she was using all the Avene creams and compresses at home, so it calmed it relatively quickly to the state where she is not workplace disabled by it.
·When asked if her breast specialist had provided a view in relation the use of the proposed treatments, she said she is 12 years past diagnosis so she does not have regular appointments with an oncologist, her GP is the main source of continuous medical history.
·She took steps to minimise the cost of receiving the treatment in France by buying the cheapest fares she could, staying in accommodation which was under $70 per night. She said the real cost was in relation to the time her partner had to take off work and all the side expenses to travelling overseas, things which she does not have receipts for.
·Confirmed that she made the decision herself to have the Avene Centre treatment and she would have done so whether it was reimbursed or not.
·Confirmed that she felt that the treatment was reasonable in the circumstance.
Post Hearing Supplementary Report of Dr Andrews
After the Hearing the Applicant sought to put some additional questions to Dr Andrews on the basis that the Applicant believed that:[36]
(a)Dr Andrews had given evidence regarding a short term use of steroids that ignored risks “that a dermatologist of 20 years of practice would be well aware of”; and
(b)Dr Andrews had made a number of statements regarding the treatment offered at Avene “that are contradictory to the available evidence”.
[36] Email from the Applicant to the Tribunal, dated 14 April 2019.
Consequently, the Applicant submitted a list of questions which the Respondent put to Dr Andrews.[37] Dr Andrews provided a supplementary report dated 3 June 2019.[38]
[37] Applicant’s Supplementary Questions for Dr Andrews filed on 6 May 2019.
[38] Supplementary Medical Report provided by Dr Megan Andrews, dated 3 June 2019.
Dr Andrews’ supplementary report responded to number of questions in relation to safety of treatment, specific general article extracts and research presented by the Applicant. Dr Andrews’ responses to these questions were consistent with her previous report and evidence provided at Hearing.
Of specific relevance was Dr Andrews’ response to a question in relation to the JEADV[39] journal articles referring to the treatment provided at Avene Hydrotherapy in France, to which she provided the following response:[40]
There are no journal papers or articles showing efficacy of these of spray water and skin creams alone just as there are no journal papers or articles supporting the role of Avene hydrotherapy for allergic contact dermatitis.
[39] Journal of the European Academy of Dermatology and Venereology.
[40] Supplementary Medical Report provided by Dr Megan Andrews, dated 3 June 2019, page 9.
Dr Andrews provided the following summary:[41]
[The Applicant] has read literature and in the absence of a medical background has made assumptions on potential side effects that do not occur with the dose regime I would suggest for control of her condition. Thus, the extensive number of side effects she documents to be of concern to her are completely irrelevant and do not occur at the doses suggested.
Short dose and interval treatment both of oral and topical steroids as I have suggested on a number of occasions, both with my testimony and medical report, I used for that exact reason to avoid potential side effects. All of these side effects I am well aware of having been in practicing dermatologist for over 20 years, having prescribed topical and/or oral steroids on almost every week of my practicing career. Her concerns are not substantiated by any scientific data for such a short course or interval therapy.
Improvement is well recognised whilst undergoing Avene hydrotherapy and for several months thereafter as Avene reports. This is only in patients with atopic dermatitis. There is absolutely no evidence supporting its role in other types of dermatitis and [the Applicant’s] case illustrates this. She improved but had a rapid recurrence on return to normal activities of daily living in Australia and characteristic exposure to an allergen to which she was well known to be sensitised to.
Although there may have been some initial improvement in her sensitivity, her degree of sensitivity as documented in previous allergy tests as well as the distribution and reaction she developed on exposure to the house dust mite in her workplace would have certainly overridden any improvement in the barrier function of her skin and this was certainly evident in her clinical presentation.
As a dermatologist, whilst I am supportive of patients who wish to explore Avene hydrotherapy, had [the Applicant] consulted a dermatologist as part of her treatment she would have been cautioned by myself and all other dermatologists that it would be likely that the benefit would be short lived due to any long term benefit on suppressing sensitivity to house dust mite or other allergens in her workplace or domestic environment. It is not a treatment I believe that clinical dermatologists would encourage a person with [the Applicant’s] specific condition to pursue as the long term benefit would not warrant the cost. It is not considered a first, second or third line of treatment for the condition for which [the Applicant] is claiming, particularly in the absence of any of the implementation of any conventional therapy.
CONTENTIONS
[41] Supplementary Medical Report provided by Dr Megan Andrews, dated 3 June 2019, pages 9-10.
Applicant’s Contentions
At Hearing, in closing submissions, consistent with her Statement of Issues, Facts and Contentions the Applicant said: [42]
I guess, in conclusion, Dr Megan Andrews, if I had known it was a workplace injury I may have gone to a dermatologist. I may have followed her advice. Having not known it was an injury, I didn’t go. I undertook what I considered to be reasonable, and even Dr Andrews said she would - most dermatologists would support that choice if you’re prepared to go overseas. No dermatologist or doctor in Australia generally directs people to go overseas for treatment. That is not what you do. You work with the system that you have got. But having made that decision to go, most dermatologists would support it, because it has got – you know, it is very safe. It is a safe and reasonable thing to try. So, in closing, I guess I want to say it was – considering the sequence of events, my history, my history of complications, my history of having tried cortisones and it being useless to me, it was a reasonable decision and I should be compensated for some of those expenses incurred.
[42] Transcript page 69.
The Applicant contended that the cost of her treatment was not unreasonable and in comparison to, six weeks of her salary, being $15,500 (if it had taken six weeks of trial and error of treatments) had she needed time off from work, the products, specialist fees and household expenditure.[43]
[43] Transcript page 68.
The Applicant contended that she underwent the Avene Centre treatment because it had worked for her in the past, she believes it is scientifically proven and she had the blessing and support of her general practitioner. She contended that the Holt and Rope cases do not apply as her treatment was not available in Australia and is well-documented in all science literature.[44]
[44] Transcript page 68.
The Applicant submitted that she disagrees with Dr Andrews’ analysis that the treatment was not effective in treating just exposure and that Dr Andrews did not present any medical evidence to the Tribunal that the treatment is not effective in allergic reactions.[45]
[45] Transcript page 68.

The Applicant provided a detailed response dated 10 June 2019 to the supplementary report provided by Dr Andrews.[46] In her response the Applicant disagreed with a number of statements made by Dr Andrews and also provided further details in relation to her past treatments and her own personal views as to what would have and would not have worked in relation to the flare that occurred in 2016.
[46] Applicant’s response to supplementary medical report provided by Dr Andrews, dated 10 June 2019.
The Applicant also provided a summary of her position, which was consistent with her previous statements and evidence provided at hearing. This summary included contentions that:[47]
·Dr Andrews has not provided the Tribunal with any literature or other evidence to back her proposed alternative treatment plan or her claims of its efficacy or safety.
·The Avene Centre hydrotherapy treatment is effective for allergic contact dermatitis.
[47] Applicant’s response to supplementary medical report provided by Dr Andrews, dated 10 June 2019.
The Applicant contended that the Avene Centre treatment was reasonable medical treatment and on a cost base analysis the amount being sought is reasonable.
Respondent’s Contentions
The Respondent contended that it is not liable to pay compensation under section 16 of the SRC Act for the Applicant’s hydrotherapy treatment at the Avene Centre in France and associated travel costs.[48]
[48] Exhibit 3, Respondent Statement of Issues, Facts and Contentions, page 5, paragraph 28.
The Respondent contended that it is relevant in the determination of whether it was reasonable to obtain treatment, that a costs/benefits analysis is to occur, including consideration of whether alternative treatment is available making reference to Comcare v Rope (2004) 135 FCR 443 and Comcare v Holt [2007] FCA 405.[49]
[49] Exhibit 3, Respondent Statement of Issues, Facts and Contentions, page 5, paragraph 29, Transcript pages 64-65.
The Respondent contended that the cost of the treatment received in this present case is much higher than potential alternative treatments, relying on the opinion of Dr Andrews that such alternative treatment is available and would be appropriate for the Applicant. Consequently, the treatment was not reasonable to obtain.[50]
[50] Exhibit 3, Respondent Statement of Issues, Facts and Contentions, page 5, paragraphs 30-31.
At Hearing and in written submissions the Respondent acknowledged the Applicant’s education and research into her condition. At Hearing the Respondent submitted:[51]
… it’s clearly the case that the Applicant is a highly education person, who has taken a lot of time to research the medicine in respect of health issues which unfortunately have afflicted her – spent a lot of time in that regard. But the key difficulty is, as I’ve foreshadowed this morning, she is not a specialist dermatologist or a medical specialist of any description, and you know, she has got her own views about these things, which she is entitled to, but just because she believes them to be true does not make them reasonable in the circumstances, if I can put it that way.
[51] Transcript, page 65 and Further submissions on behalf of the Respondent dated 3 July 2018.
The Respondent acknowledged that the Applicant has a fairly strong view as to what is appropriate however, contended that the evidence of Dr Andrews should be preferred as reasonableness does import a number of objective features, and when considering medical treatment, one is necessarily referring to what an expert, a specialist has to say on those topics. The Respondent contended that the Applicant cannot qualify in that respect and that Dr Andersen as a general practitioner cannot reach the same level of attainment as the expertise held by Dr Andrews.[52]
[52] Transcript page 66.
In relation to the evidence provided by Dr Andrews, the Respondent submitted:[53]
·     It appears that the centrepiece of Dr Andrews’ evidence is that this was a case where the Applicant had an allergic reaction, and that is why she says the treatment at the Avene Centre was going to have no real benefit and the alternative treatment would have been all of those various things she stipulated.
·     Dr Andrews gave evidence in a measured way. She looked the Applicant in the face and told her that she should have seen a dermatologist.
·     She gave clear evidence in respect of osteoporosis and the use of the proposed treatments in respect of any recurrence of the cancer.
·     Dr Andrews concluded that the treatment sought was not specifically directed to the Applicant’s particular condition at the time, and there was a whole treatment regime available in Australia.
[53]    Transcript pages 66-67.
The Respondent contended that aside from some personal assertions from the Applicant she has provided some general material from the internet and some journal articles in support of her submissions, however such material necessarily stands part from expert medical evidence which is quite specifically referenced to the Applicant’s personal health circumstances.[54]
[54] Further submissions on behalf of the Respondent dated 3 July 2018, page 2, paragraph 10.
The Respondent contended that as the Applicant has failed to point to any specialist medical evidence in relation to side effects or potential treatments which contradicts Dr Andrews’ quite specific evidence regarding the Applicant’s personal circumstances there is no basis for the Tribunal to reject Dr Andrews’ evidence.[55]
[55] Further submissions on behalf of the Respondent dated 3 July 2018, page 3, paragraph 12.
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.
There are a number of Tribunal and Court decisions which have considered section 16 of the SRC Act in relation to the reasonableness of treatment in the particular circumstance. This issue was dealt with in the case of Jorgensen and Commonwealth of Australia [1990] AATA 129; 23 ALD 321 where the question related to whether an IVF procedure was reasonable treatment in circumstances where the Applicant had suffered compensable conditions which resulted in her being unable to conceive normally. Gray J said at [325]:
In my view, the question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical treatment at all, would have been better for a person suffering from the particular injury. The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation. Were it to be otherwise, decision-makers would be faced with questions of great difficulty, such as whether the appearance of a particular person prior to suffering injury was such as to make it unreasonable to consider cosmetic surgery, or whether repair of a particular injury was appropriate only for persons in some occupations or classes or geographical areas, but not for others.
As such the determination of whether treatment is reasonable in the circumstances for the purposes of section 16 of the SRC Act is both objective and subjective.
The Respondent referred the Tribunal to the Rope and Holt decisions as referenced above. These decisions related to Applicants who sought compensation for treatment that was provided outside of their immediate location. The principles of the decisions in these cases follow the lines of authority in relation to determining whether treatment is reasonable in the circumstances and made particular reference to considering the cost/benefit analysis of the treatment. In these cases, the particular treatments in question were recommended by the Applicant’s medical practitioners and were treatment types previously accepted by the Respondent.
In Alamos and Comcare [2014] AATA 629, Deputy President Constance highlighted that in considering whether it is reasonable for an employee to obtain the medical treatment in the circumstances, that it is necessary to consider all of the circumstances, not only the beneficial effects of the particular medical treatment. Deputy President Constance outlined a non-exhaustive list of facts that could be considered in resolving the question to include at [24]:
·     the benefit of the treatment to the injured worker;
·     the long-term effect of the treatment;
·     whether the treatment is likely to cure the injury or significantly reduce its effects;
·     whether the treatment maintains the status quo;
·     the cost of ongoing treatment.
Based on the medical evidence before the Tribunal, the Tribunal is not satisfied that the Avene Centre treatment was reasonable treatment in the circumstances. The evidence of Dr Andersen, while supportive to the Applicant, did not of itself constitute Dr Andersen recommending, referring or prescribing that the Applicant undertake the Avene Centre treatment. The evidence of Dr Andrews in response to which the Applicant did not provide any contradicting specialist evidence, was that the Avene Centre treatment was not reasonable in the circumstances given the nature of the Applicant’s condition and the availability of local specialist intervention and treatment.
The Tribunal acknowledges that the Applicant undertook to obtain the Avene Centre treatment in the most cost-effective manner possible and she did not claim other costs of travel to which if she was successful she may have been entitled to. This however was also a result of the fact that at the time she undertook the Avene Centre treatment the Applicant was of the understanding that she was seeking the treatment on her own accord and at her own expense.
The fact that the Applicant was not aware, at the time that she experienced the allergic flare of her ezcema and sought the Avene Centre treatment, that the flare related to what would eventually be accepted as a workplace injury has little bearing on whether the treatment was reasonable in the circumstances. Rather this fact weighs against the treatment being reasonable as the Applicant did not know the source of the flare and, having heard the Applicant’s evidence and the expert evidence, this made it more difficult for her to avoid the cause upon her return from the Avene Centre. Consequently, although the Applicant experienced some improvement in her condition during her attendance at the Avene Centre, she experienced a further allergic flare upon her return, limiting any short-term or long-term benefit which could be said to have been gained from the treatment.
While the Applicant’s evidence was that her previous treatments at the Avene Centre had beneficial results that provided her with relief from her symptoms for a number of years, there is no corroborating medical evidence of this before the Tribunal. There is no corroborating evidence outside of the Applicant’s self-reporting in relation her symptoms or state of her eczema condition prior to or after this previous treatment, or that the treatments were undertaken in consultation with her general practitioner or a specialist.
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.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

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Associate
Dated: 7 February 2020

Date of hearing: 12 April 2019

Applicant: In Person

Counsel for the Respondent: Mr Charles Clark

Solicitors for the Respondent: Lehmann Snell Lawyers

[2020] AATA 378

7 February 2020

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Employment Law

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Judicial Review

Causation

Date of hearing:	12 April 2019
Applicant:	In Person
Counsel for the Respondent:	Mr Charles Clark
Solicitors for the Respondent:	Lehmann Snell Lawyers