STACK and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2010] AATA 334

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 334

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1016 &

VETERANS' APPEALS  DIVISION		)              2009/5391
Re		GEORGE STACK

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date7 May 2010

PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

..................[Sgd].................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Military Rehabilitation and Compensation Commission (MRCC) - Acceptance of liability for post traumatic stress disorder and osteoarthritis of knees – Applicant resident in Thailand – Claim for reimbursement for costs of travel to and from Australia for consultation, accommodation in Australia and lost employment – Claims for appointments arranged by MRCC rejected under s 57 of the Rehabilitation and Compensation Act 1988 (Cth) (the Act) – Section 57 decisions not reviewable – Decisions not to review affirmed – Claims for appointments arranged by applicant without prior approval rejected under s 16 of the Act –Section 16 determinations reviewable – Expenditure not reasonably incurred - Reviewable decisions affirmed.

Rehabilitation and Compensation Act 1988 (Cth) 16, 57, 60, 62

Australian Postal Corporation v Forgie (2003) 130 FCR 279

REASONS FOR DECISION

7 May 2010 Mr R G Kenny, Senior Member    

BACKGROUND

1.      George Stack served in the Australian Regular Army from 22 April 1970 until 9 December 1971.  On 21 November 2005 and 6 January 2006, he lodged claims under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for acceptance of post traumatic stress disorder and osteoarthritis of the knees, respectively, as being related to his Army service. The Military Rehabilitation and Compensation Commission (the MRCC) accepted liability for post traumatic stress disorder on 16 January 2007 and for osteoarthritis of the left and right knees on 22 January 2007. Mr Stack has resided in Thailand since 2002. On various occasions in 2005, 2006 and 2007, he travelled to Brisbane where he consulted with psychiatrists Dr Bruce Lawford and Dr Robert Athey, psychologist Jacinta Wagner and rheumatologist Dr Phillip Vecchio. He claimed payment for the associated costs of this travel to Brisbane, of accommodation in Brisbane and of lost hours of work in Thailand.

2. On 19 March 2007, Mr Stack’s claims for reimbursement of costs for attending Dr Lawford on 26 October 2006 and 13 March 2007 were rejected by the MRCC. On that date, the MRCC also rejected his claim for reimbursement of costs for attending Dr Athey on 19 December 2005. By reviewable decision, dated 2 March 2009, the MRCC confirmed that the decision in relation to Dr Lawford had been made under s 16 of the SRC Act. It reviewed the rejection decision under s 60 of the SRC Act and affirmed that decision. This was on the basis that the decision by Mr Stack to move to Thailand was a matter of personal choice by him, that the MRCC was not aware that he had moved to Thailand and that he had not been reasonably required to travel from Thailand to Brisbane for treatment. In the decision of 2 March 2009, the MRCC also noted that the earlier rejection of Mr Stack’s claim for reimbursement in relation to his attendance at an examination by Dr Athey on 19 December 2005 had been made under s 57 of the SRC Act. The MRCC determined that this decision was not reviewable under the SRC Act.

3. On 7 September 2009, the MRCC rejected Mr Stack’s claims for reimbursement of costs for attending Dr Vecchio on 18 December 2006 and for attending Ms Wagner in August and September 2007. By reviewable decision, dated 2 November 2009, the MRCC confirmed that the decision in relation to Ms Wagner had been made under s 16 of the SRC Act. It reviewed that decision under s 60 of the SRC Act and affirmed that decision. Again, it noted that the decision by Mr Stack to move to Thailand was a matter of personal choice, that the MRCC was not aware that he had moved to Thailand and that he had not been reasonably required to travel from Thailand to Australia for treatment which could have been obtained by him on the several occasions when he was already in Australia. It also determined that Mr Stack did not see Ms Wagner in September 2007. In the decision of 2 November 2009, the MRCC also noted that the earlier rejection of Mr Stack’s claim for reimbursement in relation to his attendance at an examination by Dr Vecchio had been made under s 57 of the SRC Act. The MRCC determined that this decision was not reviewable under the SRC Act.

ISSUES, SUBMISSIONS AND LEGISLATION

4. As I understand the decisions under review, no issue is taken by the respondent with the costs of the actual treatment provided to Mr Stack by practitioners in Australia. Issues for consideration are: whether the decisions relating to Dr Athey and Dr Vecchio were made under s 57 of the SRC Act; whether those decisions are reviewable; if so, whether costs associated with Mr Stack’s travel to Brisbane for treatment by Dr Athey and Dr Vecchio are recoverable by him; and whether costs associated with Mr Stack’s travel to Brisbane for treatment by Dr Lawford and Ms Wagner are recoverable by him.

5. For the applicant, Mr Vasta submitted that, while some level of psychiatric treatment may have been available to Mr Stack in Thailand, there was no appropriate treatment of the kind required by him for post traumatic stress disorder similar to that provided by Dr Lawford or Ms Wagner. Accordingly, he submitted that it was appropriate for Mr Stack to seek such treatment in Australia. Mr Vasta submitted that it was not relevant that, while in Australia, he associated with family members because it was not necessary under the SRC Act for the pursuit of treatment to be the sole purpose of his travel. Mr Vasta submitted that the respondent was aware that Mr Stack was resident in Thailand from before he travelled to Australia to see Dr Athey in 2005. This was because Mr Stack’s advocate, Trevor Hopper, had advised the respondent of this at that time. This meant that the respondent must have been aware of the need for him to travel from Thailand to Brisbane to attend the appointment, made by the respondent, with Dr Athey. Further, he submitted that, as the other claimed trips occurred subsequently, the respondent had been similarly aware when those trips were made.

6. Mr Vasta referred to the significant consequences that follow from a failure by a person in Mr Stack’s situation to attend appointments made by the respondent with a medical practitioner including suspension of rights under the SRC Act. He submitted that this was a factor pressing upon Mr Stack’s decision to undertake the travel to Brisbane to see Dr Athey and Dr Vecchio. He submitted that the cost of return travel by Mr Stack between Thailand and Brisbane, the costs of accommodation while he was in Brisbane and the income foregone by him while absent from his employment in Thailand during that travel were expenses reasonably incurred by him and were for the purpose of his treatment and/or examination by the four nominated practitioners. Mr Vasta submitted that, in assessing the reasonableness of Mr Stack’s travel arrangements, regard should be had only to those factors listed in s 16(8) of the SRC Act.

7. For the respondent, Mr Clark submitted that the review provisions of the SRC Act had no application to decisions made under s 57 thereof and that, therefore, the Tribunal was not able to review the decisions relating to Mr Stack’s consultations with Dr Athey and Dr Vecchio.

8.      For the consultations with Dr Lawford and Ms Wagner, Mr Clark submitted that the associated expenses were not reasonably incurred by Mr Stack.  He submitted that a level of psychiatric treatment was available from practitioners in Thailand and that this should have been fully explored by Mr Stack.  He submitted that it was unreasonable for Mr Stack to assume, without enquiry, that costs of return travel to Australia would be covered by the respondent.  Further, he submitted that the trips taken by Mr Stack since 2002 were part of a pattern of return travel to Australia by him, at particular times of the year, including Christmas time, so that he could enjoy the company of his family.  In relation to one of the claims for treatment by Ms Wagner, in September 2007, Mr Clark submitted that no reimbursement could be paid because the consultation had not occurred. 

9. Provision is made in s 16 of the SRC Act for compensation to be paid for medical treatment. In so far as relevant, it reads:

16  Compensation in respect of medical expenses etc.

(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.

(2)       …

(5)       ...

(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:

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.

(7)       Comcare is not liable to pay compensation under subsection (6) unless:

(a)the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or

(b)if the journey made by the employee involved the use of public transport or ambulance services—the employee’s injury reasonably required the use of such transport or services regardless of the distance involved.

(8)The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:

(a)the place or places where appropriate medical treatment was available to the employee;

(b)       the means of transport available to the employee for the journey;

(c)       the route or routes by which the employee could have travelled; and

(d)       the accommodation available to the employee.

(9)       ...

10. The SRC Act also enables the respondent to require a person to undergo a medical examination. In that regard, s 57 thereof reads:

57  Power to require medical examination

(1)       Where:

(a)a notice has been given to a relevant authority under section 53 in relation to an employee; or

(b)       an employee has made a claim for compensation under section 54;

the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority.

(2)Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.

(3)The relevant authority shall pay the cost of conducting any examination required under this section and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose.

(4)The matters to which the relevant authority is to have regard in deciding questions arising under subsection (3) include:

(a)       the means of transport available to the employee for the journey;

(b)       the route or routes by which the employee could have travelled; and

(c)       the accommodation available to the employee.

(5)Where an employee’s right to compensation is suspended under subsection (2), compensation is not payable in respect of the period of the suspension.

(6)An employee shall not be required to undergo an examination under this section at more frequent intervals than are specified by the Minister by legislative instrument.

11. Where a decision of the respondent constitutes a determination, it is able to be reconsidered under s 62 of the SRC Act. The term determination is defined in s 60(1) of the SRC Act as meaning:

... a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.

12. A determination reconsidered under s 62 of the SRC Act, is a reviewable decision which may be reviewed by the Tribunal under s 64 of the SRC Act.

EVIDENCE 

13.     Mr Stack’s evidence was that, in 2002, he moved to Thailand where he worked as a part-time teacher of English until March 2007.  On 19 October 2009, Mr Stack completed a table setting out his dates of departure from Thailand to Brisbane from 2002 to 2007 and the duration of each stay there[1].  These were:

[1] Exhibit 6. The final entry was not included in the table but was identified in Mr Stack’s letter dated 27 January 2008.

Departure date	Duration (days)	Departure date	Duration (days)
6 March 2002	21	16 December 2004	20
27 March 2002	10	22 March 2005	30
18 June 2002	13	15 June 2005	14
27 September 2002	15	6 August 2005	23
14 November 2002	7	13 September 2005	19
19 December 2002	18	6 November 2005	22
17 January 2003	10	18 December 2005	19
4 April 2003	8	1 April 2006	16
15 September 2003	8	5 May 2006	10
8 October 2003	10	29 July 2006	23
20 December 2003	23	22 October 2006	15
6 March 2004	22	16 December 2006	13
17 June 2004	13	4 March 2007	14
29 July 2004	15	17 June 2007	12
9 September 2004	7	28 July 2007	15

14.     In letters to the MRCC in February, March and October 2007, Mr Stack detailed the outlays for which he claimed reimbursement.  In a further letter, dated 27 January 2008, he summarised his claimed costs in the following way.

Expenditure
Practitioner	Dr Athey:	Dr Vecchio	Dr Lawford:	Dr Lawford	Ms Wagner
Date	December 2005	December 2006	October 2006	March 2007	August and September 2007
Air fares	1,077.00	1,100.00	1,071.43	982.76	925.00 x 2
Airline	Thai	Thai	Royal Brunei	Singapore	Royal Brunei
Accommodation	850.00	650.00	850.00	700.00	850.00/ 700.00
Lost income	700.00	482.76	550.00	482.76	-
Taxi transfers	114.00	104.69	114.00	104.69	104.69 x 2
Total	$2,741.00	$2,337.45	$2,585.43	$2,270.21	$1,879.69/ $1,729.69

15.     In that table, Mr Stack claimed for two visits to Ms Wagner i.e. in August and September 2007.  In his evidence, he agreed that he had not seen her after August 2007.  In his letter of 27 February 2007, Mr Stack identified and claimed for two visits to Dr Lawford in November 2006.  In his evidence, he agreed that he saw Dr Lawford in October 2006 and March 2007.  He said that the incorrect dates for visits to Ms Wagner and Dr Lawford were errors on his part.  In evidence was a statement, dated 1 April 2010, from Ms Wagner in which she confirmed that she had not seen Mr Stack after August 2007.  In another letter, dated 10 August 2007, she wrote that psychological based treatments were “not likely to improve his condition in the near future or in the long term.”  Also in evidence was a letter, dated 13 March 2007, from Dr Lawford stating that he had seen Mr Stack on 13 March 2007.

16.     Mr Stack made at least five return journeys to Brisbane each year since 2002.  He said that he always selected the most direct route as well as the least expensive fare.  This meant that the carrier was Brunei Airlines and he was required to await an available return flight with the same airline.  This was the reason for the duration of his stay in Australia extending several days both before and after his medical appointments.  His travel to Brisbane included the Christmas period each year and some of those visits included medical appointment dates. 

17.     While in Brisbane, Mr Stack was able to stay at the residence of his former wife to whom he paid $350.00 per week for board and lodging.  He has children in Brisbane and, when there, would meet with them.  He denied that he selected some medically oriented travel dates to coincide with Christmas and, at one stage in his evidence, denied that he would have travelled to Brisbane in any event at that time of the year.  He said that not all of his travel was for medical consultations only, but, when he travelled for that purpose, that was the only reason for travel.

18.     In his claim forms, Mr Stack gave his wife’s residential address as his postal address.  Correspondence from the MRCC was sent to that address, including the letters sent to advise Mr Stack of the appointment times arranged by the MRCC with Dr Athey and Dr Vecchio.  These letters included a note that Mr Stack “may be entitled to claim costs” for the examination “including travel expenses and loss of wages”. 

19.     The letter relating to Dr Athey was dated 6 December 2005 and the appointment was scheduled for 19 December 2005.  However, Mr Stack agreed that payment receipts in evidence reveal that he had booked and paid for the flight to Brisbane on 1 December 2005.  This was several days before he was advised of the appointment arranged with Dr Athey whose report confirms that he saw Mr Stack on the arranged date.  Mr Stack said that his representative in Brisbane, Trevor Hopper had contacted the MRCC prior to his consultation with Dr Athey and advised the MRCC that he was living in Thailand.

20.     Mr Hopper did not give evidence but provided a statement, dated 16 October 2009[2], in which he advised that, when the appointment was made for Mr Stack to see Dr Athey, he spoke to the MRCC delegate Nicole Pollock, advised that Mr Stack was in Thailand and told her he was unsure whether Mr Stack would be able to attend the appointment.  Mr Hopper wrote that he was told by Ms Pollock that Mr Stack may be able to claim travelling expenses. 

[2] Exhibit 6 (attachment).

21.     In relation to Dr Vecchio, the MRCC first notified Mr Stack by letter dated 10 November 2006 that an appointment had been arranged for 11 December 2006.  Mr Stack’s travel arrangement was for him to arrive in Brisbane on 16 December 2006 and, by letter dated 17 November 2006, the MRCC changed this appointment to 18 December 2006.  Each of those letters was sent to Mr Stack at his Brisbane postal address.  In a statement, dated 19 October 2009, Mr Stack wrote that, after receiving advice of the appointment with Dr Vecchio, he contacted the MRCC delegate Justin Shaw and told him that he lived in Thailand and had to arrange flights to Brisbane.

22.     While the appointments with Dr Athey and Dr Vecchio were made by the MRCC, that was not the case for those with Dr Lawford and Ms Wagner.  Mr Stack did not seek prior approval for his travel to see them and did not advise MRCC that he would attend appointments with them.  He said that his representative, Trevor Hopper, had done this on his behalf.  Mr Stack recalled being advised by the MRCC that he “may be able to claim” if he travelled for appointments so long as he travelled more than 50 kilometres.  Mr Stack said that Dr Lawford referred him to Ms Wagner for cognitive behavioural therapy (CBT) and also that he had been instructed to see Ms Wagner by the MRCC.

23.     In evidence was correspondence concerning the initial involvement of Dr Lawford with the MRCC.  On 14 April 2006, Mr Stack wrote to the MRCC and advised that his general practitioners, Dr Hetti and Dr Purdie, had diagnosed post traumatic stress disorder and had referred him to Dr Lawford who confirmed the diagnosis. On 26 May 2006, the MRCC wrote to Mr Stack advising him that Dr Athey, in his report, did not support a diagnosis of post traumatic stress disorder and invited him to submit a report from Dr Lawford.   On 26 July 2006, Dr Lawford called the MRCC to advise that he had treated Mr Stack and he asked if he could see Dr Athey’s report.  The delegate agreed and, on 10 August 2006, sent a copy of it to Dr Lawford.  Dr Lawford then completed a report dated 9 November 2006 and, based upon it, the MRCC accepted post traumatic stress disorder on 16 January 2007.  Mr Stack said that the MRCC had “commissioned” Dr Lawford’s report. 

24.     In evidence were statements, dated 27 and 28 January 2010, from Nicole Haydon (nee Pollock) and Justin Shaw.  Ms Pollock was the MRCC officer who arranged for Mr Stack to see Dr Athey.  She wrote that she did not recall a conversation with Trevor Hopper about the appointment or about Mr Stack living in Thailand.  Mr Shaw arranged the appointment of Mr Stack with Dr Vecchio.  He wrote that he did not recall any conversations with Mr Stack.  Both Ms Pollock and Mr Shaw wrote that they did not believe that they would have advised that the Department would cover the costs of flights from Thailand and that, if they had been advised that he was in Thailand, they would have advised that Mr Stack seek or rearrange an appointment when he was in Australia.

25.     Mr Stack’s travel arrangements on the occasions when he had medical appointments were of varying duration.  For Dr Lawford’s appointments in October 2006 and March 2007, he stayed for 15 days and 14 days, respectively.  For Ms Wagner’s appointment in August 2007, he stayed for 15 days.  As I read his claims, he sought reimbursement for accommodation costs for each of those periods.  Mr Stack said that he had to stay so long because those were the arrangements his travel agent had made.  He said he was bound to return on the flights booked by his travel agent and, though this meant that he was in Brisbane for several days before and after his appointments, he did not try to get an earlier return flight to Thailand.  Elsewhere in his evidence he said that he did try for an earlier flight and was told by the airline employee that “they would get back to him”.  Mr Stack agreed that he attended to personal matters as well while in Brisbane for his medical appointments. 

26.     The only treatment sought by Mr Stack in Thailand was when he saw a psychologist in 2007 or 2008.  He said that he understood her to say that there was “no such thing as post traumatic stress disorder in Thailand”.  Evidence of the availability of treatment in Thailand for a psychiatric condition was provided by psychologist Mr JF Botermans PhD and psychiatrist Dr Thani Settachan. 

27.     Dr Botermans wrote, on 22 January 2010, that psychiatric care, including the prescription of anti depressant medication was definitely available in Thailand.  He described Thai psychiatrists as having been very well trained in the West.  He also wrote that CBT was readily available in Thailand.  Subsequently, Dr Botermans wrote that specialized treatment for post traumatic stress disorder is available in Thailand, but not readily so, as there are few practitioners and they are difficult to find.  In the latter note, Dr Botermans advised that he had been unaware that he was providing evidence in legal proceedings and indicated that he usually avoids taking sides.

28.     Dr Settachan wrote that there were some 200 qualified psychiatrists in Thailand who, mostly, are general practitioners who treat psychiatric conditions.  He described some of these as having experience in treating post traumatic stress disorder but said that they were not experts in that form of treatment.  He said that, unlike the case in Western countries, there were no special centres for the management of the condition in Thailand and patients with the condition are treated individually by general psychiatrists. 

29.     In response to Mr Stack’s claim for post traumatic stress disorder, the MRCC replied to Mr Hopper who was nominated by Mr Stack as his representative at the address given by Mr Stack in Carindale.  The MRCC also wrote to Mr Stack at that time.  Included in those letters was a statement advising that the MRCC should be told of any change of address.

CONSIDERATION

Mr Stack’s evidence

30.     There were significant inconsistencies in Mr Stack’s evidence such that I consider him to be an unreliable witness.  I have taken this into account in assessing his evidence.

31.      Mr Stack said that he travelled with Brunei Airlines because it had the cheapest fares.  Yet, in the table setting out his expenses for six trips to Brisbane[3], he used Singapore Airlines on one occasion and Thai Airlines on two occasions. 

[3] See para 13 above.

32.     The table setting out the duration of his stays in Brisbane when he came for treatment by Dr Lawford[4], shows 15 days and 14 days in October 2006 and March 2007, respectively.  He gave conflicting responses to questions about whether he tried to arrange an earlier return flight.  On one occasion he denied doing so; on another occasion he said that he did and was told by airline staff that they would “get back to him”.  Also, in relation to travel, I do not accept his evidence that he had no control over the travel agent’s booking practices. 

[4] See para 14 above.

33.     Mr Stack gave inconsistent answers to questions concerning the activities he undertook when in Brisbane for his medical appointments.  On one occasion, he said that, when he travelled for that purpose, that was the only reason for travel.  Subsequently, he agreed that he attended to personal matters as well while in Brisbane for his medical appointments. 

34.     There was also inconsistency in Mr Stack’s evidence about the arrangements for travel to see Dr Athey.  The appointment letter from the MRCC was dated 6 December 2005 and yet, five days earlier, he had already booked and paid for the flight to Brisbane on 18 December 2005.  The duration of his stay at that time was 19 days and included the Christmas period.  That points to a clear intention by Mr Stack to travel to Brisbane at that time to be with his children for Christmas quite apart from his having any prearranged medical appointments. 

35.     Mr Stack maintained that the report by Dr Lawford was “commissioned” by the MRCC.  Certainly, the MRCC relied on it and, indeed, it provided the basis for the MRCC’s acceptance of Mr Stack’s post traumatic stress disorder claim.  However, the report was provided by Dr Lawford without any request from the MRCC.  The role of the MRCC in the preparation of Dr Lawford’s report was merely to supply, at Dr Lawford’s request, a copy of Dr Athey’s report to him[5].  It was not commissioned by the MRCC.

[5] See para 22 above.

36.     A material aspect of claiming reimbursement for medical appointments is when these occurred.  As noted above, Mr Stack misstated the times when he claimed to have seen both Dr Lawford and Ms Wagner. 

Sections 16 and 57 of the SRC Act

37. Both s 16 and s 57 of the SRC Act enable certain costs associated with attending a medical practitioner to be recovered by a claimant under the SRC Act. As I read s 57 of the SRC Act, it enables a relevant authority, in this case the MRCC, to arrange for a claimant to be sent to a medical practitioner, nominated by the MRCC, as part of the process of determining a claim. Section 57 is not concerned with treatment. On the other hand, the medical services provided under s 16 of the SRC Act are for the purpose of obtaining treatment by a medical practitioner in relation to a condition for which liability has been accepted by a relevant authority. Section 16 is not limited to medical practitioners selected by the MRCC.

Appointments with Dr Athey and Dr Vecchio

38.     In relation to post traumatic stress disorder, the MRCC arranged for Mr Stack to attend an appointment with Dr Athey on 19 December 2005.  It advised Mr Stack of this by letter, dated 6 December 2005.  On 16 January 2007, the MRCC accepted liability for post traumatic stress disorder.  In relation to osteoarthritis of the knees, the MRCC arranged for Mr Stack to attend an appointment with Dr Vecchio on 11 December 2006.  It informed him of this by letter dated 10 November 2006 but this appointment was amended, in a further letter from the MRCC dated 17 November 2006, to 18 December 2006.  On 22 January 2007, the MRCC accepted liability for osteoarthritis of Mr Stack’s knees. 

39. Those appointments with Dr Athey and Dr Vecchio were made by the MRCC under s 57 of the SRC Act as part of the processing of Mr Stack’s claims. His claims for reimbursement of expenses were rejected under s 57 of the SRC Act as not having been reasonably incurred by him. In the reviewable decisions, it was determined that these decisions made under s 57 of the SRC Act are not reviewable. The sections of the SRC Act comprising determinations which are reviewable under s 62 thereof are listed in s 60 of the SRC Act. The list includes s 16, but not s 57, of the SRC Act. I accept the submission of Mr Clark that decisions under s 57 are not subject to review[6].  It was on that basis that the delegate determined that the decisions relating to the claims by Mr Stack for appointments with Dr Athey and Dr Vecchio are not reviewable.  I would affirm that decision.

[6] See Australian Postal Corporation v Forgie (2003) 130 FCR 279

Appointments with Dr Lawford and Ms Wagner 

40.     It is not disputed that Mr Stack saw Ms Wagner for the last time in August 2007.  I am satisfied that his claim in relation to seeing her in September 2007 must be rejected as he did not see her at that time. 

41. Under s16(1) of the SRC Act, the Commonwealth is liable to pay compensation for the cost of medical treatment obtained in relation to an injury, being treatment which it was reasonable to obtain in the circumstances. Issues relating to travel and accommodation in order to obtain that treatment are not raised in that provision as they become relevant under s 16(6) of the SRC Act once it has been determined that the obtaining of treatment was reasonable[7].  Mr Stack’s first claim for consultation with Dr Lawford was in October 2006, before liability had been accepted for post traumatic stress disorder.  However, liability had been accepted by the time of his second consultation with Dr Lawford in March 2007 and of that with Ms Wagner in August 2007.  It is not in dispute that the treatment provided by them was reasonable for Mr Stack to obtain.

[7] See s 16(6)(a) of the SRC Act.

42.     Where compensation for the cost of medical treatment is payable, it can be extended to include reasonably incurred expenditure in making a necessary journey for the purpose of obtaining that medical treatment and remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose[8].  A formula is provided for calculating the cost of travel which must exceed 50 kilometres[9]. Guidance is provided in s 16(8) of the SRC Act by requiring the following matters to be considered in assessing reasonableness of travel undertaken and of accommodation arranged:

·the place or places where appropriate medical treatment was available;

·the means of transport available for the journey;

·the route or routes which could have been travelled; and

·the accommodation available.

[8] See s 16(6)(a), (b)(i) and (ii) of the SRC Act.

[9] See s 16(7)(a) of the SRC Act.

As I read s 16(8) of the SRC Act, it does not purport to provide an exhaustive list of such matters. Of significance in the particular circumstances of Mr Stack are his residence in Thailand, the duration and cost of travel to Brisbane and the length of his respective stays in Brisbane.

Return travel between Thailand and Brisbane

43. Mr Stack’s evidence was that the MRCC was aware that he was living in Thailand from before he saw Dr Athey in December 2005. This was because Mr Hopper so advised Ms Pollock at that time. Mr Stack also claims to have advised Mr Shaw that he was living in Thailand. The evidence of Ms Pollock and Mr Shaw is that they have no recollection of any such conversations. That is consistent with the absence, prior to the receipt by the MRCC of Dr Athey’s report, of any address in Mr Stack’s MRCC files for him apart from that to which all material correspondence was sent. This was his wife’s residential address in Brisbane which he had nominated as his postal address in his claim forms. There is reference in the file material to that as being the residential address he had previously provided to the MRCC [10]. In a letter, dated 25 November 2005, Mr Stack was asked to notify the MRCC of any change of address and there is no record in Mr Stack’s files of that being done. I do not accept Mr Stack’s assertions that he or Mr Hopper advised the MRCC that he was resident in Thailand. The first reference to Mr Stack living in Thailand is in Dr Athey’s report, dated 30 December 2005, which is stamped as having been received by the MRCC on 18 January 2006[11].  It would seem that this information was not acted upon by the MRCC to update Mr Stack’s residential details in their files at that time and an MRCC file note, dated 12 June 2007, appears to be the first record that this information was in Dr Athey’s report.

[10] See reference to documentation from 1993: Q09/1016 at T27/80.

[11] Q09/1016 at 31, 33, 34, 44, 46.

44.     The letters sent to Mr Stack concerning his appointments, made by the MRCC, with Dr Athey and Dr Vecchio included a reference to the possibility of reimbursements for travel expenses and loss of wages.  Those letters were not in relation to Mr Stack’s consultations with Dr Lawford and Ms Wagner.  He arranged these himself. 

45. Even if, by the time Mr Stack arranged to have consultations with Dr Lawford and Ms Wagner, the MRCC had been provided with information that he was living in Thailand, there is no evidence of prior approval for making the travel arrangements from Thailand to Brisbane or of any undertaking that the costs of such travel would be met by the MRCC. Obtaining prior approval for travel or for making arrangements to travel is not, in terms, required by s 16(6) of the SRC Act. Indeed, the costs of travel of relatively short duration, albeit greater than 50 kilometres, and which might even involve public transport may be considered to be reasonably incurred without prior notice to or approval by a Commonwealth agency which is expected to make reimbursement of those costs. However, because of the extent of expenditure involved, I am satisfied that it is not reasonable to incur the cost associated with return air travel from Thailand to Brisbane without some intimation by such agency that compensation will be payable. In particular, that is clearly so where liability has not been accepted for the condition under treatment.

46.     The evidence of Ms Pollock and Mr Shaw is that they did not believe that they would have advised that the Commonwealth would cover the costs of flights from Thailand and that, if they had been told Mr Stack was in Thailand, they would have advised him to seek or rearrange an appointment when he was in Australia.  I accept their evidence in that regard.  It is consistent with the status of Mr Stack’s claim for acceptance of post traumatic stress disorder at the time of his first visit to Dr Lawford.  At that time, in reliance on Dr Athey’s report, the MRCC had rejected the claim and there would be no basis for approving Mr Stack’s travel to a treating psychiatrist at that time.  I do not accept Mr Stack’s evidence that he had prior approval for the travel he undertook to see Dr Lawford in 2006.  Mr Stack made no distinction between approvals for the two trips to see Dr Lawford and I am satisfied that, as with the first journey, there was no approval obtained by him in relation to the second consultation with Dr Lawford.  I am also satisfied that this was the case with his travel arrangements to see Ms Wagner.  I do not accept Mr Stack’s assertion that he was instructed to see Ms Wagner for CBT by the MRCC but that rather, he was referred to Ms Wagner by Dr Lawford.  In her report, dated 10 August 2007, Ms Wagner confirmed that Dr Lawford was her referral source. 

47. In assessing the reasonableness of Mr Stack’s travel arrangements, I have noted the matters in s 16(8) of the SRC Act. No issue is taken with the means of transport available to him or the route or routes which could have been travelled. A further matter is the availability of appropriate medical treatment in Thailand. Dr Botermans’ initial evidence was that psychiatric care, including the provision of CBT, was definitely available in Thailand from very well trained Thai psychiatrists. His later evidence was less enthusiastic but, nevertheless, confirmed the availability of a few practitioners able to treat post traumatic stress disorder. Dr Settachan wrote that there were some 200 qualified psychiatrists in Thailand, some of whom had experience in treating post traumatic stress disorder. While noting an absence of special centres for the management of the condition, he described patients with the condition being treated individually by general psychiatrists. Mr Stack’s evidence was vague and uncertain about treatment in Thailand. He said that he spoke with a psychologist and understood her to say that there was no such thing as post traumatic stress disorder in Thailand. That was not the evidence of Dr Settachan or Dr Botermans. I am satisfied that psychiatric treatment is available in Thailand although not to the extent that it is in Australia. I am also satisfied that this was appropriate in that it was psychiatric treatment which included CBT as had been provided by Ms Wagner.

48.     As to his endeavours to obtain treatment before deciding to undertake travel to Australia, Mr Stack was only able to say that he made the enquiry in 2007 or 2008.  Mr Stack first travelled to see Dr Lawford in 2006.  His second trip was in March 2007.  I am satisfied that the vagueness of Mr Stack’s evidence does not point to any serious enquiry by him about the provision of psychiatric services in Thailand prior to undertaking travel to Australia for treatment.

49.     It is Mr Stack’s decision that he live in Thailand but I am satisfied that Mr Stack had an established pattern of travel to Brisbane, for purposes not necessarily associated with medical treatment, on at least five occasions per year between 2002 and August 2007.  Indeed, one flight to Brisbane, for which Mr Stack claimed expenses, had been booked and paid for by him several days before he was advised by the MRCC of the appointment date.  His regular travel times included the Christmas period and other times when he could readily have arranged to have appointments for treatment with Dr Lawford and Ms Wagner such that it was not necessary for him to undertake separate trips to obtain medical treatment from them.

50.     I am satisfied that Mr Stack did not consult with the MRCC about his travel arrangement to see Dr Lawford and Ms Wagner, that appropriate medical treatment was available in Thailand and that he made no meaningful attempt to ascertain whether such treatment was available in Thailand.  In those circumstances, I am satisfied that Mr Stack’s costs of travel to see Dr Lawford in October 2006 and March 2007 and Ms Wagner in August 2007 do not constitute expenses reasonably incurred by him for the purpose of obtaining for treatment for his post traumatic stress disorder.

Remaining in Brisbane

51. Under s 16(6)b)(ii) of the SRC Act, compensation is payable to Mr Stack for reasonably incurred expenditure for remaining, for the purpose of obtaining the medical treatment from Dr Lawford and Ms Wagner, at a place to which he has made a journey for that purpose. His evidence was that he had accommodation at $50 per day in his wife’s residence while he was in Brisbane. Mr Stack remained in Brisbane for periods of 15 days for each of his consultations with Dr Lawford and 14 days for that with Ms Wagner. I do not accept his explanations that he was required to remain for those periods because of the non-flexible arrangements made by his travel agent over which he had no control and which could not be changed. He travelled to Brisbane several times per year and, while he did seek treatment on three occasions, I am satisfied that the dominant purpose of his stays in Brisbane was for personal reasons and that his accommodation costs were not reasonably incurred expenditure for the purpose of obtaining that medical treatment.

Lost employment

52. As I read s 16 of the SRC Act, no specific provision is made for compensation in the form of reimbursement of earnings lost while obtaining medical treatment in accordance with that provision. It may be that this is embraced by the terms of s 16(6)(b)(i) thereof although it is difficult to see how lost payments would constitute an expenditure item. However, that provision is dependent on a journey being compensable. I have determined that the travel undertaken by Mr Stack was not compensable and, therefore, even if reimbursement of lost wages falls with s 16 of the SRC Act, this does not assist Mr Stack.

DECISION

53.     I would affirm the decisions under review.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed:  ....................[Sgd].................................................
               Kate Slack, Research Associate

Date/s of Hearing  10 March 2010 and 16 April 2010
Date of Decision  7 May 2010
Counsel for the Applicant         Mr A Vasta
Counsel for the Respondent     Mr C Clark
Solicitor for the Respondent     Clare Fitzpatrick, Sparke Helmore