Weir and Comcare
[2006] AATA 457
•26 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 457
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/271
GENERAL ADMINISTRATIVE DIVISION ) Re MAUREEN WEIR Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date26 May 2006
PlaceCanberra
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that the Turning Point course was medical treatment that was reasonable for Ms Weir to obtain in the circumstances.
The Respondent is to pay Ms Weir’s reasonable costs in these proceedings pursuant to the Tribunal’s practice direction as agreed or taxed.
..............................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - medical treatment expenses – therapeutic treatment – psychotherapy - personal development course - psychologist - meaning of ‘at the direction of’ and 'legally qualified medical practitioner'- therapeutic treatment obtained at the direction of a legally qualified medical practitioner - decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 16
Health Professionals Act (ACT) 2004 s 23
Health Professionals Regulations (ACT) 2004 Schedule 2, Item 2.2
Comcare v Watson (1997) 73 FCR 273
Bashar v Comcare (2002) 69 ALD 784
REASONS FOR DECISION
26 May 2006 Mr S. Webb, Member 1. By this application Maureen Weir is seeking review of the determination made by Comcare, and affirmed by an independent review officer, to reject her claim for compensation in relation to the Turning Point course.
2. The matter was dealt with on the papers before the Tribunal.
facts
3. It is not in issue that Ms Weir was injured in employment as a Registered Nurse with ACT Health on 19 May 1998. Comcare accepted liability for the injury, described as lumbosacral disc prolapse (T5). Ms Weir suffered from chronic pain (see T9 and T17) and claimed compensation for medical treatment expenses in relation to her injury. She attended the ADAPT pain management program at the Royal North Shore Hospital and was discharged on 22 December 1999 (T10).
4. On 10 January 2001 Ms Weir was referred by Dr George Chan, general practitioner, to Laura Lander (now Laura Fox), psychologist, for treatment in relation to pain arising from her injury (T14). On 22 March 2001 Ms Fox informed Dr Chan that:
“Treatment has incorporated pain management to help Maureen manage her back injury and accept her physical limitations. Treatment has also included relaxation training and assertiveness training.
… I will keep you informed of her progress.”
5. In response to Ms Weir’s claim for approval of “psychological treatment” recommended by Dr Chan (T15), on 8 August 2001 Comcare determined that “the provision of counselling services to Ms Weir constitutes medical treatment obtained in relation to her injury” (T16). That treatment was provided by Ms Fox on a fortnightly basis (T22).
6. On 16 October 2002 the Tribunal issued a consent decision, determining that Ms Weir was entitled to compensation for permanent 19% whole person impairment.
7. On 24 April 2002 Dr Garth Eaton reported that “Further pain management education and counselling may assist Ms Weir to more effectively self manage her condition” (T19).
8. On 20 February 2004 Dr Chan certified that Ms Weir was fit to work 12 hours per week and recommended hydrotherapy for “pain relief/muscle tightening” and psychotherapy for “pain management”. He certified that the treatment plan was “long term to maintain current status, otherwise it will deteriorate and need further reduction of hours”.
9. On 27 April 2004 Ms Fox informed Comcare that (T22):
“Ms Weir needs structure and stability in regards to her treatment. The therapeutic relationship we have built is extremely important in order to maximise treatment gains. Certainly it would be detrimental to consider changing her to another treating psychologist. The therapeutic alliance we have been [sic] would be difficult to replace, and it would at least take considerable time to rebuild.
It is possible at this point to drop the treatment sessions from fortnightly to a three weekly basis, although the option of fortnightly sessions needs to be left open in the case of any setbacks or in the case of the pain getting worse.”
10. Ms Fox continued to treat Ms Weir, with “psychotherapy sessions every three weeks” approved by Comcare on 6 August 2004.
11. On 2 April 2005 Ms Fox noted “TP [The Turning Point] June – Recomm to Comcare for program and tell GP” (Clinical notes). On 7 May 2005 Ms Fox noted “Will request [Comcare to pay for] 22 June – TP [The Turning Point]” (Clinical notes).
12. On 14 April 2005 Ms Fox referred Ms Weir to Ms Anne Crichton (psychologist) for treatment:
“I am currently winding down my psychology practice in Canberra and I have moved to Melbourne.
…
Ms Weir has a chronic back pain from a work related disc injury and an approved Comcare claim… She is active in her pain management approach and has managed to maintain employment (on reduced hours). Her pain management includes regular swimming exercise classes and staying involved as much as possible with all normal activities. Despite continuous pain levels in her lower back and down her leg she engages well with life.
Ms Weir attends treatment sessions reliably and on time. She has told me she feels the need to continue with psychology treatment to stay on top of things and to be motivated to continue with her pain management. She also suffers from anxiety and depression relating to her pain condition. She has ongoing sleep disturbance due to the pain and this wears her out. She needs ongoing supportive counselling.
I am also currently recommending to Comcare that they pay for Ms Weir to do a 40 hour personal development course, being run in June, incorporating pain management strategies and meditation. She is now ready and willing to do the course, and this course has been enormously beneficial for clients I have referred to date. The course is run by Mr Richard Arthur…”
On the same day Ms Fox wrote to Comcare in relation to the Turning Point course:
“As part of Ms Weir’s psychological management I have recommended that she undertake “The Turning Point” course for therapeutic and rehabilitation purposes. The course is due to begin in June 2005. The cost of the course is $695 and the Course contact is Richard Arthur…
…
c.c. Dr George Chan”
13. On 15 June 2005 Ms Crichton noted (Clinical notes):
“[Ms Weir] Asked my opinion re “The Turning Point” program. Admitted that her initial reaction was resistance – v. intensive course… I related exp of similar involvement & how relaxing it was. Re-focus on making her own decisions… Has prepared a special place at home for meditation practices.”
14. On 17 June 2005 Comcare determined to reject a claim made by Richard Arthur in respect of Ms Weir’s enrolment in the Turning Point course commencing on 22 June 2005 (T26 and T28). On 22 June 2005 Ms Fox wrote to Comcare:
“This course would be of benefit therapeutically for Ms Weir in terms of building anxiety reduction skills and widening her ability to engage in self management of her pain.
I believe The Turning Point course would benefit Ms Weir as much as any other psychological treatment.”
On 23 June 2005 Ms Weir requested a reconsideration of that decision. On 7 July 2005 Mr Arthur provided additional information (see materials returned under summons).
15. On 1 July 2005 Ms Crichton noted (Clinical notes):
“The workshop was very “intense”. She did like many aspects of it…Didn’t like “primal scream” & noise. Didn’t like feeling coerced to scream and refused. Genuinely didn’t feel the need to act out. Said will tell the leader next time they meet.”
16. On 15 July 2005 Ms Crichton wrote to Ms Fox:
“[Ms Weir] is showing improvement in respect of her symptoms of depression and anxiety, but her anxiety levels are still more elevated. Both her anxiety and her depression, although elevated, are at lower levels than the mean for the pain population. Maureen is learning to communicate her needs at home and how to delegate responsibility to other family members.
Maureen followed your advice to participate in Richard Arthur’s course. She has benefited in many ways although she found aspects of the course, including its duration, onerous and the hours of attendance awkward. She was not comfortable with primal therapy.
Maureen has started to recover her zest for life…”
17. On 22 July 2005 Ms Crichton noted (Clinical notes):
“Increasing zest for life and having more quality, despite chronic pain… Showing community spirit with increasing involvement…”
18. On 3 August 2005 Comcare ‘extended’ liability for medical treatment in relation to Ms Weir’s injury to include “…psychotherapy and consultations with your general practitioner as required up to and including 1 February 2006” (T34).
19. On 19 August 2005 an independent review officer decided to affirm Comcare’s determination to reject Ms Weir’s claim for payment of the Turning Point course (T35). The officer was “not satisfied that the course can be considered medical treatment which is reasonable in the employee’s circumstances”.
20. On 2 September 2005 Ms Crichton noted (Clinical notes):
“Increased pain and suffering. Went thru analysing The Turning Point – lawyer wants to take it to the AAT so Comcare will sponsor the programme…. Pain & suffering greatly reduced by her demeanour.”
21. On 10 March 2006 Ms Crichton noted (Clinical notes):
“Preoccupied and uneasy with prospect of having to testify re “course”, she was referred to sometime ago. Felt uncomfortable about it not having been paid for by Comcare but felt pressed to go. Spoke about it afterwards in session. Benefited from meditation techniques but didn’t like “sensitivity pain” component & several people were taken apart but not put back together again.
She was approached to endorse the course & did so vs her better judgement. She wasn’t very clear or assertive in communicating how she really felt. She’s confused now. On one hand she’s saying “I’ll do it if it will help other people” but v. upset about prospect of testifying & being involved.
We focussed on stress management… Her b.v is very high even in “calm” state. She’s v. anxious. This contributes to physical suffering & sensations of pain are magnified…
PS Comcare has opposed 1 session/6 wks. She might need more now as she goes thru this mess.”
22. The Turning Point course is provided by People Knowhow Canberra Pty Ltd. Richard Arthur is the Chief Executive Officer of that company. In materials published by the company, the Turning Point is described as a “weekend workshop” that:
“provides self-management skills including:
·Management of anger, stress, anxiety, depression, phobias and strong emotions
·Management of pain, both physical and emotional
·Assertiveness and other people skills – communication, conflict resolution
·Skill and motivation to move out of the victim stance or martyr position
… Tools of the Turning Point include: meditation, education about the development of personality, role playing as a gestalt therapy and psychodrama, Bio-energetics…, Somatic Psychotherapy…, Inner Child Process, Cognitive behavioural technique, one-on-one counselling, and group therapy.”
legislation and issues for determination
23. The Safety, Rehabilitation and Compensation Act 1988 (“the Act”) provides that Comcare is liable to pay compensation to an injured employee, in such amount as is appropriate, for medical treatment reasonably obtained by the employee in relation to the injury, whether or not the injury results in incapacity or impairment (subs 16(1) and (2)). Thus, in Ms Weir’s case, the question to be answered is whether the Turning Point course she attended on and after 22 June 2005 is medical treatment in relation to her compensable injury that it was reasonable for her to obtain in the circumstances.
24. The term ‘medical treatment’ is defined to mean, inter alia, “therapeutic treatment obtained at the direction of a legally qualified medical practitioner” (s 4). The term ‘therapeutic treatment’ is defined inclusively to mean “an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury” (s 4). Thus, in the particular circumstances, the Tribunal must determine:
(a)If the Turning Point course was therapeutic treatment, and if so
(b)If it was obtained at the direction of a legally qualified medical practitioner, and if so
(c)Whether it was reasonable for Ms Weir to obtain in all the circumstances.
consideration
25. Making this decision I have carefully considered all of the evidence, the written submissions of the parties, the relevant caselaw and legislation.
was the turning point course ‘therapeutic treatment’?
26. I am reasonably satisfied and find that the Turning Point course was therapeutic treatment for Ms Weir in her particular circumstances.
27. I accept the evidence of Ms Fox that Ms Weir’s participation in the Turning Point course was a part of her psychotherapy treatment that was intended to “[build] anxiety reduction skills and [widen] her ability to engage in self management of her pain” (T30), and so find. I find that Ms Weir’s participation in the Turning Point course was purposive treatment in relation to her injury. Ms Fox intended that the course would assist her to develop strategies and skills to better cope with and manage or alleviate the pain she experienced as a result of her injury. That intention is not inconsistent with the stated aims and objectives of the Turning Point course in published materials.
28. I accept that Ms Fox considered the Turning Point course to be a modality of psychotherapy treatment and formed a professional opinion about the appropriateness of including the course in Ms Weir’s program of psychotherapy treatment in or about April 2005 (see T26 and clinical notes dated 2 and 14 April 2005). On 22 June 2005 Ms Fox stated that the Turning Point course would benefit Ms Weir as much as “any other psychological treatment” (T30). That opinion must be considered in relation to previous statements made by Ms Fox on 27 April 2004 (T22):
“Mrs Weir needs structure and stability in regards to her treatment. The therapeutic relationship we have built is extremely important in order to maximise treatment gains. Certainly it would be detrimental to consider changing her to another treating psychologist. The therapeutic alliance we have been [sic] would be difficult to replace, and would at the least take considerable time to re-build.”
On that evidence it is plain enough that Ms Fox did not consider the Turning Point course to be outside the scope of the psychotherapy treatment she was providing to Ms Weir.
29. The term ‘treatment’ is given no special meaning under the Act and can be understood, for present purposes, by its ordinary meaning in common usage. Thus, ‘treatment’ means, relevantly, “management in the application of remedies” (Oxford English Dictionary, 2nd Edition 1989) or “subjection to some agent or action” (Macquarie Concise Dictionary, 3rd Edition 1998) with a view to obtaining a particular result. Thus the concept of treatment in relation to an injury is broad enough to include processes for the development of techniques or skills whereby a patient may better deal with or manage a particular condition or symptom, such as pain or anxiety for example, that is the result of the injury. The question remains whether the treatment is ‘therapeutic treatment’ for present purposes.
30. In Comcare v Watson (1997) 73 FCR 273 Finn J said at 276-277:
“A course of treatment designed to, or aimed at, alleviating the pain caused by an injury … is, in my view, properly to be regarded as therapeutic treatment…
The only additional comments I would make on this are, first, that therapeutic treatment in this setting is a purposive activity – that is, its purpose or object must be the treatment of the particular injury in question. If such is not the actual, specified purpose of the activity then notwithstanding its beneficial effects, it will not relevantly be therapeutic treatment for present purposes. Secondly, because such treatment is purposive, an indicator that a doctor-prescribed activity is intended, relevantly, to be therapeutic will commonly be the adoption of some level of monitoring of it to gauge whether it is appropriately adapted to its purpose or is effective in some degree in realising that purpose. Obviously the nature and extent of such monitoring will be affected significantly by the nature of the treatment. Some forms of treatment may require close checking; others may be self-monitored, once prescribed. I mention this simply to caution against the view that a doctor’s positive and active control and management are indispensable elements in treatment.”
31. The experience of chronic pain is a subjective experience even though there may be, as in this case, a frank pathological cause. While remediating physical pathology may alleviate pain, that is not possible in all cases. The concept of alleviating pain is not confined to reducing the level of pain, but includes reducing the experience of pain, or making the pain more able to be endured, and improving the quality of life of the person thereby. I accept that treatment which is intended to improve a person’s ability to manage or cope with their pain may, in fact, alleviate their pain, thereby satisfying the definition of therapeutic treatment.
32. The Turning Point course was intended to alleviate symptoms Ms Weir suffered as a result of her injury. In the context of the psychotherapy treatment being provided by Ms Fox, and noting the stated objectives of the course, I am satisfied that the treatment was of a therapeutic character within the meaning of ‘therapeutic treatment’ under the Act.
was the treatment obtained at the direction of a legally qualified medical practitioner?
33. Was the therapeutic treatment obtained at the direction of a legally qualified medical practitioner? I am satisfied that it was. It is not in dispute that Dr Chan is a legally qualified medical practitioner in the Australian Capital Territory. Ms Fox is not a legally qualified medical practitioner. Ms Fox is a psychologist who was registered to practice in the Australian Capital Territory under the Health Professionals Act (ACT) 2004 (“the HPA”). However, with reference to s 23 of that Act and Schedule 2, Item 2.2 of the Health Professionals Regulations (ACT) 2004 she was not a legally qualified medical practitioner.
34. Dr Chan referred Ms Weir to Ms Fox for psychotherapy treatment in relation to her compensable injury and related chronic pain. It follows and I find that the psychotherapy treatment Ms Weir obtained from Ms Fox was at the direction of Dr Chan. The Turning Point course was a component of the program of psychotherapy treatment provided to Ms Weir by Ms Fox, and subsequently by Ms Crichton. Was the course treatment obtained by Ms Weir at the direction of Dr Chan?
35. Following Comcare v Watson (supra), for therapeutic treatment to be ‘medical treatment’ for present purposes, it is not necessary for the prescribing doctor to actively and positively control and manage the treatment prescribed. Once a doctor has ‘advised, prescribed or ordered’ the specified treatment, in this case psychotherapy, it is for the doctor to monitor his or her patient’s progress in a manner and degree that is appropriate in the particular circumstances. Such monitoring will permit opinion to be formed in relation to the effectiveness or progress of the particular treatment, and therefore the appropriateness of the treatment, in the circumstances from time to time.
36. Thus, in Ms Weir’s case, once Dr Chan had prescribed psychotherapy treatment by Ms Fox, it was not then necessary for him to manage and control the psychotherapy treatment. Nor was it necessary for him to advise, prescribe or order each aspect or component or modality of the psychotherapy treatment provided by Ms Fox, and he did not. Dr Chan’s referral of Ms Weir for psychotherapy treatment by Ms Fox was in general terms. He did not specify particular components or modalities of psychotherapy treatment when referring Ms Weir to Ms Fox. It does not follow, however, that the specific components and modalities of psychotherapy treatment that Ms Weir obtained from Ms Fox, consequent upon Dr Chan’s referral, were not obtained at the direction of Dr Chan. It is relevant for present purposes that Ms Fox informed Dr Chan about Ms Weir’s progress from time to time. It can be inferred that Dr Chan monitored Ms Weir’s psychotherapy treatment and her progress in a manner and degree that he considered to be appropriate in the circumstances.
37. For present purposes, it was not necessary for Dr Chan to prescribe or order Ms Weir’s participation in the Turning Point course because the course was a component part of the psychotherapy treatment Ms Weir was then obtaining from Ms Fox at his direction. Even though neither Ms Fox nor Ms Crichton actually conducted the course, Ms Weir’s participation in the course was planned and undertaken as a part of the psychotherapy treatment they provided at the direction of Dr Chan. I accept that Ms Fox had a detailed professional knowledge of the course and had previously used it with apparently beneficial results as a component of psychotherapy treatments provided to other patients (letter to Ms Crichton dated 14 April 2005). I accept that Ms Fox formed a professional opinion that it was appropriate to include the course in Ms Weir’s psychotherapy treatment program in the circumstances. While it is not necessary (for present purposes) for Dr Chan to have approved or endorsed Ms Fox’s decision, it appears from her notes and letters on the subject that she informed Dr Chan of her recommendation in advance of a decision being taken concerning Ms Weir’s participation, and I so find. It is not clear whether Ms Weir consulted Dr Chan about the Turning Point course before making a decision to proceed with that part of Ms Fox’s treatment, and there is no evidence from either Ms Weir or Dr Chan on that point.
38. It is unclear from the papers when Dr Chan became aware of Ms Fox’s recommendation of the Turning Point as therapeutic psychotherapy treatment for Ms Weir. It could have been on or about 2 April 2005, following Ms Fox’s clinical note. It could have been on or about 14 April 2005 when Ms Fox apparently copied her letter of recommendation to Dr Chan. On that evidence I am prepared to accept that it is more likely than not that Dr Chan was aware of the Turning Point as a component part of Ms Weir’s psychotherapy treatment in April 2005.
39. Ms Fox’s clinical notes reveal that she was aware of Dr Chan’s on-going role and involvement in Ms Weir’s treatment. On 2 August 2001 Ms Fox informed Dr Chan that she “will keep you informed as to [Ms Weir’s] progress”. On 27 April 2004 Ms Fox copied her report to Comcare concerning Ms Weir’s psychological treatment (T22) to Dr Chan. On 2 April 2005 her clinical notes record “TP [Turning Point] – Recomm to Comcare for program and tell GP”. On 14 April 2005 Ms Fox copied her letter to Comcare recommending that Ms Weir undertake the Turning Point course (T26) to Dr Chan. On 7 November 2005, subsequent to Ms Weir undertaking the course, Dr Chan wrote to Comcare in the following terms:
“Mrs Weir has been recommended by her psychologist to attend the TURNING POINT PROGRAMME, a weekend workshop for management of anger, stress anxiety and pain.
I have examined the content of the programme and feels [sic] that the programme will give her good benefit for pain management of her work related long term lower back pain.”
40. I accept that these materials indicate that Dr Chan was monitoring Ms Weir’s progress and the psychotherapy treatment provided by Ms Fox. I note in passing that Ms Fox’s legal registration as a psychologist is a relevant factor when considering the nature and degree of monitoring by Dr Chan of the psychotherapy treatment she was providing to Ms Weir.
41. It follows, therefore, that I do not accept the Respondent’s submission that the only record of a medical practitioner turning his or her mind to the potential benefit of Ms Weir participating in the Turning Point course was “Dr Chan on 7 November 2005”. On the evidence before me, scant as it is on this point, I find that Dr Chan had opportunity to discuss with Ms Fox and Ms Weir any concerns or issues he may have had about the appropriateness or otherwise of the Turning Point course, with the potential to veto Ms Weir’s participation in the Turning Point course, or to advise, prescribe or order different treatment, if he so chose in the period from April to 22 June 2005. There is no evidence that he made any such choice. In fact the evidence points to a contrary finding.
42. I do not accept the Respondent’s submission that for therapeutic treatment to be ‘medical treatment’ under the Act, relevantly, it must be ‘prescribed’ by a legally qualified medical practitioner. That interpretation places too narrow an interpretation on the authority in Comcare v Watson (supra). Finn J described what is required is “an imperative element” whereby medical treatment is treatment that is “advised, prescribed or ordered” by a medical practitioner. It seems to me, with respect, that the approach adopted by Dr Chan in this case contains the necessary imperative element. The Act is beneficial legislation and there is no reason to read down or too narrowly construe what is meant by paragraph (b) of the ‘medical treatment’ definition at s 4 of the Act.
43. At the outset the doctor referred Ms Weir for psychotherapy treatment by Ms Fox. He did not specify what was meant by ‘psychotherapy’ and did not advise, prescribe or order any specific elements of psychotherapy treatment that should or should not be employed by Ms Fox. In effect, he relied on Ms Fox’s standing as a registered health professional under the relevant statutes of the Australian Capital Territory. Dr Chan’s role in relation to that treatment thereafter was one of monitoring or evaluating Ms Weir’s progress in that treatment from time to time, plainly enough in communication with Ms Fox. In that role and in those circumstances it is not surprising that Dr Chan was not asked to ‘prescribe’ the Turning Point course, or any other component or modality of the psychotherapy treatment provided by Ms Fox. Importantly, however, he was informed of Ms Weir’s progress and he was informed about the Turning Point course as a component of her treatment at least 2 months in advance of the course commencing. Plainly enough, he approved of Ms Weir participating in the course, and confirmed his endorsement on 7 November 2005, presumably in response to a request relating to these proceedings.
44. Having considered all of the evidence, I am reasonably satisfied that the essential imperative element was present in Dr Chan’s direction of the psychotherapy treatment Ms Weir obtained from Ms Fox and Ms Crichton, including the Turning Point course. I so find. It follows that the course is within the meaning of ‘medical treatment’ set out at s 4 of the Act, specifically it was therapeutic treatment obtained at the direction of a legally qualified medical practitioner.
was it reasonable to obtain the treatment in the circumstances?
45. I am reasonably satisfied that it was reasonable for Ms Weir to obtain psychotherapy treatment including the Turning Point course in all the circumstances. Ms Weir undertook the Turning Point course as a component of the psychotherapy treatment she was obtaining from her treating psychologist, Ms Fox. That treatment was obtained at the direction of her treating general practitioner.
46. I do not accept the Respondent’s submission that Ms Weir’s participation in the Turning Point course was not reasonable because previous treatments had been efficacious. One only has to consider the reports by Dr Chan, Ms Fox and Ms Crichton (and the clinical notes that are before the Tribunal) to understand the persistent nature of the symptoms experienced by Ms Weir, and the difficulty of obtaining treatments with enduring efficacy. The significant preponderance of the medical evidence indicates that the likely prognosis of Ms Weir’s condition is for continuing chronic back pain (see T10, T11, T12, T13, T17, T18, T19 and T20). In those circumstances it can be expected that she will require ongoing treatment, the particular modalities being the subject of assessment from time to time by her treating doctors and health professionals. Plainly enough, Dr Chan is of the opinion that ongoing psychotherapy treatment, including the Turning Point course, was warranted and appropriate in 2005.
47. I accept the Respondent’s submission that personal development courses are not medical treatment in all circumstances. The particular circumstances in each case must be carefully considered. Careful analysis of the documents concerning the Turning Point course reveals that the course offers aspects of psychotherapy that are group-based (summons materials). I accept that Ms Fox included the course in Ms Weir’s treatment program for “therapeutic and rehabilitation purposes” (T26) with the aim of “building anxiety reduction skills and widening her ability to engage in self management of her pain” (T30). It can be inferred that aspects of the Turning Point course, such as group-based activities, could not be obtained in the normal course of one-on-one psychotherapy treatment with Ms Fox or Ms Crichton.
48. In Ms Weir’s case the Turning Point course had a therapeutic purpose. Plainly enough Ms Fox was of the opinion that the course was an appropriate inclusion in her program of psychotherapy treatment in relation to Ms Weir’s injury, especially in relation to the chronic pain and anxiety she experienced. It appears that Ms Crichton held a similar opinion on 15 June 2005 (see the clinical notes of Ms Fox and Ms Crichton) and Dr Chan expressed a similar opinion on 7 November 2005.
49. Ms Crichton’s clinical notes from July 2005 clearly indicate that Ms Weir’s anxiety and depression, and her quality of life, had improved at that time despite chronic pain. To the extent that the effectiveness, or otherwise, of the treatment may be a factor to be considered in relation to the reasonableness of obtaining or continuing to obtain the particular treatment (see Bashar v Comcare (2002) 69 ALD 784 at 785), I am reasonably satisfied that Ms Weir benefited from the treatment and improvement in her condition was noted at that time.
50. The Turning Point course comprised 40 hours and cost $695. No evidence was adduced in relation to issues of cost or comparative value. Nevertheless, it can be inferred that the cost of the Turning Point course on an hourly basis is substantially less than the cost of one-on-one psychotherapy treatment. However, contrary to submissions made on behalf of Ms Weir, there is no evidence that her medical treatment declined as a result of her participation in the Turning Point course or any other component part of the psychotherapy treatment she received. Plainly enough consideration of the likely state of her condition, and whether she could have been expected to require more or less treatment had she not obtained the psychotherapy treatment is a matter of conjecture. There is no compelling evidence on this point.
51. Having considered all of the circumstances pertaining to Ms Weir in 2005, I find that it was reasonable for her to obtain psychotherapy treatment from Ms Fox and Ms Crichton, including the Turning Point course.
decision
52. The decision under review is set aside and in substitution thereof the Tribunal decides that the Turning Point course was medical treatment that was reasonable for Ms Weir to obtain in the circumstances.
53. As the matter is resolved in favour of Ms Weir, I order that the Respondent is to pay her reasonable costs in these proceedings pursuant to the Tribunal’s practice direction as agreed or taxed.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: Peter Edwards
AssociateDate of Hearing 11 May 2006
Date of Decision 26 May 2006
Solicitor for the Applicant Mr D. Lander
Counsel for the Respondent Mr A. Dillon
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