YNCJ and Comcare (Compensation)
[2024] AATA 3313
•18 September 2024
YNCJ and Comcare (Compensation) [2024] AATA 3313 (18 September 2024)
Division:GENERAL DIVISION
File Number(s): 2023/6742
Re:YNCJ
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member L M Gallagher
Date:18 September 2024
Place:Perth
The Tribunal affirms the decision of a delegate of the Respondent dated 11 July 2023, which denied liability to pay compensation under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the Applicant’s travel expenses to attend general practitioner appointments on:
(a)28 March 2023;
(b)30 March 2023;
(c)4 April 2023;
(d)6 April 2023; and
(e)11 April 2023.
...............[Sgd].........................................................
Member L M Gallagher
CATCHWORDS
WORKERS’ COMPENSATION – Whether attendance at a medical practitioner for the purpose of assessment of permanent impairment and completion of permanent impairment benefit claim forms is ‘medical treatment’ under s 16 of the Safety, Rehabilitation & Compensation Act 1988 (Cth) – Whether travel expenses were reasonably incurred – Reviewable Decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 16(6), 16(7), 16(8),
CASES
Stevens and Comcare [1995] AATA 310
Stevens and Comcare [1997] AATA 208
Re Mecke and Comcare [2006] AATA 593Brown and Comcare [2011] AATA 193
Comcare v O’Brien (1997) 49 ALD
REASONS FOR DECISION
Member L M Gallagher
18 September 2024
THE APPLICATION
The Applicant seeks review of a decision of a delegate of the Respondent dated 11 July 2023, which denied liability to pay compensation under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRCAct) for the Applicant’s travel expenses to attend general practitioner (GP) appointments on:
(a)28 March 2023;
(b)30 March 2023;
(c)4 April 2023;
(d)6 April 2023; and
(e)11 April 2023,
(the relevant dates), (the Reviewable Decision).[1]
[1] R2, T2.
ISSUE
The issue for review is whether:
(a)Attendance upon a medical practitioner for the purpose of assessment of permanent impairment and completion of permanent impairment benefit claim forms is ‘medical treatment’ for the purposes of s 16 of the SRC Act; or in the alternative,
(b)The Applicant’s claimed travel to attend consultations with [Dr M], her treating GP, on the relevant dates were ‘reasonably incurred’ in making a ‘necessary journey’ for the purpose of obtaining medical treatment,
in accordance with ss 16(6), 16(7) and 16(8) of the SRC Act.
BACKGROUND
The Applicant commenced employment with Services Australia on or around 19 November 2007.
On 26 January 2017, the Applicant lodged a claim for workers’ compensation for a physical injury that occurred on 6 December 2016.[2]
[2] R2, T4.
On 3 February 2017, the Respondent accepted liability for the physical injury under s 14 of the SRC Act.[3]
[3] R2, T5.
On 7 February 2017, the Applicant underwent a surgical procedure in relation to her physical injury.[4]
[4] R2, T6.
On or around 17 February 2017, the Applicant commenced consulting [Dr M],[5] who was then located at a medical practice understood to be approximately 2.4km from the Applicant’s residence.
[5] R2, T125.
In around May 2017, the Applicant lodged a claim for workers’ compensation for a secondary psychological condition.[6]
[6] R2, T28.
The Respondent denied liability under s14 of the SRC Act for the Applicant’s secondary psychological condition on 12 September 2017 and 10 November 2017.[7] On 1 November 2019, the Tribunal set aside the decision dated 10 November 2017 and found that the Respondent is liable to pay compensation for two psychological conditions under s 14 of the SRC Act.[8]
[7] R2, T39 and T47.
[8] R2, T86.
In or around January or February 2018, [Dr M] relocated to a medical practice understood to be located 47.4km from the Applicant’s residence.
On 14 June 2019, the Respondent issued a determination denying liability under s 16 of the SRC Act for claims including travel to and from [Dr M] on 6 March 2019, 18 March 2019 and 22 March 2019.[9] The delegate was of the view that it was the Applicant’s personal preference to consult with [Dr M] when the same services were available to her by GPs located within a 50km radius of her residence.
[9] R2, T72.
On 25 July 2018, the determination dated 14 June 2019 was affirmed.[10]
[10] R2, T77. Insofar as it related to claimed travel expenses to consult with [Dr M].
On 2 October 2020, the General Division of the Administrative Appeals Tribunal (the Tribunal) issued a consent decision pursuant to s42C of the Administrative Appeals Tribunal Act 1975 (Cth) which decided, among other things:
…the decision to deny liability in relation to travel to [Dr M] on 6 March 2019, 18 March 2019 and 22 March 2019 under section 16 of the SRC Act is affirmed…
…
…the decision of 21 October 2019 is set aside and the Respondent accepts liability under section 14 of the SRC Act for chronic pain syndrome secondary to the accepted [physical injury], with a deemed date of injury of 22 January 2016.
On 28 April 2023, the Applicant, through her solicitors, lodges three claims for permanent impairment and non-economic loss for 1) her compensable physical injury, 2) her two compensable psychological conditions and 3) her compensable chronic pain syndrome. The three forms were completed by [Dr M].[11]
[11] R2, T115.
On 20 April 2023, [Dr M] issued a medical certificate certifying that the Applicant needed to attend medical appointments on the relevant dates for assessment and completion of the claims forms for permanent impairment and non-economic loss in person due to limitations on the duration of each appointment.[12]
[12] R2, T 114, p 509.
On 7 June 2023, the Respondent declined liability for the Applicant’s claimed travel expenses to consult with [Dr M] on the relevant dates for the purpose of completing the claim forms for permanent impairment and non-economic loss (the Original Decision).[13] In doing so, the delegate said:[14]
…whilst I accept that it was reasonable for [the Applicant] to consult her General Practitioner throughout the relevant period. I do not consider that it is reasonable nor necessary for [the Applicant] to attend a General Practitioner with a return trip of 86 kilometres away from her place of residence, as there are multiple other General Practitioners within a close proximity to her home at [address].
I refer to the previous recommendation to deny travel claim for [the Applicant] on the 14 June 2019 completed by [insurer]. [The insurer] advised that there were several general practitioners available within a closer proximity to [the Applicant’s] residence and that the decision to consult [Dr M] was ‘one of personal preference and not of necessity.’ Hence [the insurer] denied travel to attend consultations with Dr M].
[13] R2, T 117.
[14] R2, T 117, p 586.
On 9 June 2023, the Applicant requested the Original Decision be reconsidered.[15] The Applicant noted:[16]
[15] R2, T118.
[16] R2, T118, pp 591 to 592.
[Dr M] was my local and treating GP at [medical practice] since I had [surgery] in February 2017. Throughout the last six and a half years, [Dr M] has:
(1) regularly liaised with all my treating providers – Orthopaedic Surgeons, Pain Specialists, Clinical Psychologist, Occupational Therapist and Physiotherapists;
(2) participated in all the medical case conferences, which included my treating providers, [insurer] Case Managers and HR Case Managers;
(3) regularly liaised with externally appointed Rehabilitation Case Managers (most recently for the purpose of my vocational assessments with [name] Employment Services);
(4) reviewed me on a very regular basis over a longitudinal period; and
(5) prepared Mental Health Care Plans and Chronic Disease Management Care plans, which are required to be done by your ‘usual GP’, for referrals to my Clinical Psychologist, Occupational Therapist and Physiotherapist, during periods when Comcare suddenly ceased essential medical treatment for my accepted, compensable medical conditions.
As such, [Dr M] is the most suitable GP to conduct the permanent impairment assessments for my compensable medical conditions.
When [Dr M] relocated from [location] to [location] in January 2018, Comcare paid my travel expenses from January 2018 – February 2019 inclusive.[17] From March 2019 – March 2020, I incurred travel expenses to remain under the care of my usual GP, [Dr M]. When COVID-19 happened and tele-health appointments became an option, my GP reviews have been conducted via tele-health since March 2020. This is evidence that, where possible, I have utilised the tele-health option. However, for the purpose of obtaining permanent impairment assessments for my compensable medical conditions. I was required to attend [another practice], as evidenced by the letter from [Dr M], dated 20 April 2023.[18]
…
Comcare are in possession of multiple reports over the years from my treating Clinical Psychologist [MR], who has advised Comcare that I experience trauma and a significant increase in my anxiety and depression when I am required to retell circumstances related to my workplace injury. It is both unreasonable and unnecessary to subject me to such trauma and worsening of my mental health when that can be circumvented by me attending my usual treating GP.
Further, I would have incurred a fee to transfer my medical records from [medical practice] to [medical practice] due to the amount of paperwork related to my compensable conditions on file at [medical practice] from January 2018 – present, which the Practice advised they would need to print and post due to the volume of documents.
Furthermore, it is cheaper for Comcare to pay for the travel expenses that I incurred, rather than the additional time that I would have been in consultation with a local GP who is unfamiliar with my case, and the additional time that the GP would have taken to go through a large volume of documents that [Dr M] is already fully aware of and familiar with.
(Original emphasis).
[17] The Respondent considers that this does not mean it is bound to do so in perpetuity (transcript, p 15).
[18] See [15] above.
On 11 July 2023, a delegate of the Respondent made the Reviewable Decision, which affirmed the Original Decision.[19] The delegate stated that:[20]
As the travel expenditure incurred in seeing [Dr M] in March and April 2023 stemmed from your general personal preference since 2019 to remain under the care of [Dr M] in place of sourcing a general practitioner closer to home which would have eliminated the need for any extended trips relating to the permanent impairment assessment, I do not consider the expenditure incurred in trip from your home in [suburb] to your preferred General Practitioner in [suburb] in March and April 2023 to have been ‘reasonably incurred.’
[19] R2, T122. See [1] above.
[20] R2, T122, p 621.
On 13 September 2023, the Applicant applied to the Tribunal for review of the Reviewable Decision.[21]
[21] R2, T1.
LEGISLATION
The Respondent’s liability to pay compensation in respect of medical expenses is set out in s16 of the SRC Act.
Relevantly, s16(6) of the SRC Act provides for reimbursement where an employee ‘reasonably incurs’ expenditure in making a ‘necessary journey’ to obtain 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…
…
Subsection 16(7) of the SRC Act provides that the length of the return journey that was reasonable for the employee to make must exceed 50 kilometres:
(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.
The matters to consider in deciding travel claims are inclusively listed in s 16(8) of the SRC Act, as follows:
(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.
EVIDENCE
The matter was heard in Perth on 8 May 2024. The Applicant was self-represented. The Respondent was represented by Mr Brendan Kelly, Counsel, instructed by Ms Amanda Danti, Sparke Helmore Lawyers A case manager from Services Australia attended to observe. The parties appeared by MS teams and no witnesses were called.
The Tribunal admitted the following documents into evidence:[22]
(a)Letter from [MR], Clinical Psychologist, dated and filed 16 January 2024 (A1);
(b)Remittance Advice from the Respondent dated 9 November 2023, for service dated 3 November 2023 (A2);
(c)Letters from MR dated 27 September 2023 and 15 November 2023, both filed on 16 November 2023[23] (A3);
(d)Letter from the Applicant dated 16 November 2023[24] (A4);
(e)Consultation notes by [Dr M], various dates between March 2023 and April 2023[25] (A5);
(f)Respondent’s Amended Statement of Facts, Issues and Contentions (SFIC) dated and filed 26 April 2024 (R1);
(g)Section 37 T-Documents comprising T1 to T125, pages 1 to 956, dated and filed 25 October 2023 (R2); and
(h)Respondent’s Schedule of Alternative Medical Practices filed 30 April 2024 (R3).
[22] Transcript, pp 2 to 4.
[23] A third letter from Ms MR dated 23 July 2021 was also filed on this date, a copy of which appears at R2, T98.
[24] A4 includes attached letter from Ms MR dated 18 October 2019, a copy of which appears at R2, T85.
[25] A5 includes letter from [Dr M] dated 20 April 2023, a copy of which appears at R2, T114.
The Tribunal is satisfied that all the relevant evidence was before the Tribunal and that the parties were provided an opportunity to address it, either orally or in writing.
CONSIDERATION
As noted above,[26] the relevant issues are whether:
(a)The Applicant’s attendance upon [Dr M] on the relevant dates, for the purpose of assessment of permanent impairment and completion of the related claim forms[27] is ‘medical treatment for the purposes of s 16 of the SRC Act; or in the alternative,
(b)The Applicant’s travel to attend consultations with [Dr M], her treating GP, on the relevant dates were ‘reasonably incurred’ in making a ‘necessary journey’ for the purpose of obtaining medical treatment.
[26] See [2].
[27] [Dr M’s] consultation notes confirm the appointments on the Relevant Dates were for this purpose (see A5).
The Respondent’s position
The Respondent’s position is that:
(a)Attendance upon a medical practitioner for the purpose of assessment of permanent impairment benefit claim forms is not medical treatment within the meaning of s 16 of the SRC Act and the costs of such attendance, including any travel expenses, is not payable under s 16 of the SRC Act. The Respondent relies on the decision of Re Lockwood and Telstra Corporation Limited [2016] AATA 1053 (Lockwood) and Comcare v O’Brien (1997) 49 ALD (O’Brien) in this regard.
(b)Alternatively, case law[28] establishes that it is not reasonable for the Applicant to continue to seek medical treatment from a GP that required a return trip of 96km and incur the related travel costs when there are a number of GP practices available to her much closer to home (that do not require a 96km round trip) particularly when the Applicant resides in the metropolitan area.
(c)It is unclear why the Applicant was unable to continue to consult with other GPs at [Dr M’s] previously located practice, which was a 5-minute drive from her home.
(d)There is insufficient evidence that [Dr M] provides the Applicant with specialist care that is unable to be provided by other treating practitioners, or that there are other circumstances relating to the Applicant’s needs that require her to continue to consult a specific GP. The Applicant’s reason for continuing to consult [Dr M] is personal, rather than borne of necessity.
(e)The Applicant could have made more assiduous efforts to find another GP in her local area with whom she could have developed a similar relationship of trust. There is no persuasive evidence that the Applicant has sought to do so, despite having been notified in March 2019 that Comcare considered that travel to the farther practice did not meet the criteria in s 16 of the SRC Act.
(f)Any requirement of [Dr M] to complete claims for impairment and non-economic loss, arose from the Applicant’s earlier decision to continue to consult him, despite being notified by Comcare in March 2019 that travel to the farther practice did not meet the criteria in s 16 of the SRC Act.
(g)In view of the above, the Applicant’s claimed travel on the relevant dates were not ‘reasonably incurred’ and making a ‘necessary journey’ for the purpose of obtaining medical treatment in accordance with subsections 16(6), 16(7) and 16(8) of the SRC Act.
[28] That case law being 1) Stevens and Comcare [1995] AATA 310 at [10]; Stevens and Comcare [1997] AATA 208, 3) Re Mecke and Comcare [2006] AATA 593 and 4) Brown and Comcare [2011] AATA 193.
At hearing, the Respondent elaborated on the application of several authorities to the present matter. Namely:[29]
[29] Transcript, pp 6 to 8 (see also pp 14 to 17 and pp 21 to 24).
[In Lockwood, at [32], The tribunal considered the prelims of section 16(1) and concluded firstly, that paragraph (a) was not satisfied because the attendance in question, which I think in that case was on an audiologist, had not been one carried out at the request or direction of a legally qualified medical practitioner, but had been requested by the applicant’s solicitors.
In the present case, it would seem that the attendances were carried out at the request of the applicant herself, given that there’s no correspondence before you from any solicitor requesting the attendances and the permanent impairment claim forms completed at those attendances were submitted to Comcare by the applicant herself. Although in the email under which she submitted them at T115, page 510, there is a reference to her having a lawyer.
Unlike in Lockwood, the consultations were undertaken by a legally qualified medical practitioner such that they could potentially satisfy paragraphs (b) or (c) of section 16(1). As in Lockwood, however, there was no treatment for the purpose of diagnosing an injury.
The conditions the subject of each of the claims had already been diagnosed, in the case of the [physical injury] some six years previously, as noted by [Dr M] at page 526 of the T documents. In the case of her chronic pain syndrome, likewise at page 548, and in the case of her [psychological conditions] she’d previously been diagnosed with [psychological condition] secondary to her [physical injury], but her diagnosis had been changed to [psychological condition], both being secondary to her [physical injury].
On 24 April 2019, some three years prior to the attendances in dispute, and you’ll see that from what [Dr M] has to say at page 570, where he’s asked to opine whether the condition had been stabilised for some period of time. He said that it had. And he sets out there the change in diagnosis from when it was made.
In each case the doctor reported that the applicant had reached maximum medical improvement. And as in Lockwood, it’s clear from these notes of [Dr M] relied upon by the applicant that the purpose of each attendance was to provide an assessment for a compensation claim rather than to provide any treatment such that paragraph (b) of section 16(1) is not satisfied either. (Indistinct) there was no evidence that during the attendances in question there was any treatment given for the purposes of alleviating an injury such that paragraph (c) of section 16 isn’t satisfied.
And from there, Member, lest it be thought that the decision in Lockwood as being a decision of the tribunal only isn’t binding upon you, reference was made - - - by the tribunal in that case to the decision of the Federal Court in Comcare v O’Brien.
…
… that was a case in which the tribunal had found that the cost of a medical report had been the cost of medical treatment obtained in relation to section 16(1) of the SRC Act, despite there having been direct evidence from the solicitor who arranged, that the report was prepared solely for the purpose of assessing whether a section 24 claim could be made.
And his Honour, Justice Finn, found there to have been an error of law in the tribunal having drawn an inference that it was also to provide medical treatment in the sense that in answering the solicitor’s questions the doctor had given advice on the management of the applicant’s treatment.
And he then went on to deal with the submission made by the respondent in the proceedings, the applicant in the tribunal, that the tribunal had reached the correct decision, albeit for the wrong reason.
And under the heading the respondent’s submission, his Honour described that submission as aggregating a number of considerations against the backdrop of the definition of medical treatment that is itself circular, that is, medical treatment is medical treatment, and referred to Teo(?) v Commonwealth of Australia, stating that given that, (1) the expenses of the consultation and of the part C of the permanent impairment claim form are ones that the standard claim form for compensation for permanent injury advises claimants to incur, (2), the part C report and hence any consultation leading to it relates to matters of diagnosis and prognosis as section 24 of the SRC Act itself envisages, and (3) the expenses themselves are clearly medical expenses in (indistinct), and ones incurred while the doctor is doing the usual things that doctors do when asked to provide treatment.
So that in the setting of the Act, the expenses should be regarded as ones for medical treatment for section 16(1) purposes. His Honour gave that submission short shrift, however, stating,
There is, in my view, a short answer to this. It’s clear that the claim form indicates that for the purposes of its part C, the reasonable costs of the consultation and completion of the form by the doctor will be met by Comcare, this obligation to pay the reasonable costs can properly be said to have been so undertaken not because it relates to section 16(1) medical expense, but it was a necessary or convenient thing for Comcare to do in connection with the performance of its functions under section 24 of the Act, referring to section 70 of the SRC Act.
In other words, he said the theme of the act itself provided the mechanism for section 24 claims to be reimbursed with reasonable costs incurred in taking these required or advised steps necessary to make a permanent injury claim, but that mechanism did not necessitate those steps being described as medical treatment.
And he said section 16(1) was not needed to source the obligation or reimburse which was sustained by section 70 of the Act. So it’s quite clear from his Honour’s judgement, in my submission, that his Honour was of the opinion that the travel expense incurred in attending a medical consultation which, as in this case, was purely for the purposes of completing permanent impairment claim forms, wasn’t one that came within section 16(1) of the SRC Act.
The Applicant’s position
The Applicant’s position is comprehensively set out in her written submissions.[30] The Applicant spoke to these submissions at hearing as well as responding to oral submissions put by the Respondent.[31]
[30] A4.
[31] Transcript, pp 9 to 26.
The Applicant explained that:
(a)[Dr M] was her local GP, who in January 2018 relocated to a practice a 96km round trip from her home.
(b)Between January 2018 and February 2018, the Respondent paid for travel expenses that she incurred for the purpose of GP reviews, which involve the issue of progress medical certificates required by her employer and by Comcare.
(c)In June 2019, the Respondent declined travel expenses for GP reviews with [Dr M] from March 2019.
(d)The Respondent’s opinion that she could have changed GPs over two years after her workplace injury, or that she could have attended her local GP practice in relation to three permanent impairment claims, is erroneous.
(e)The Respondent did not consider the complexity of her case.
(f)The Respondent did not consider the fact that [Dr M] is an integral part of her multi-disciplinary team of treating providers who regularly liaised with other team members and case managers and actively participated in case conferences.
(g)The Respondent did not consider that removing her primary healthcare provider is not recommended in the circumstances or the importance of continuity of care given the severity of her psychological conditions and the significant losses she had suffered in all areas of her life.[32]
(h)The Respondent did not consider that [Dr M] has reviewed her over a longitudinal period, which makes him the most suitable GP to conduct the permanent impairment assessments for her compensable conditions and this circumvents the need for her to retell her story to another health professional, which is harmful to her mental health, significantly increases her anxiety and depression and retraumatises her. This was repeatedly addressed with the insurer and HR, and is the reason why she was eventually referred to [Dr L] (Consultant Psychiatrist) for independent medical examinations (IMEs) and fitness for duty assessments, rather than to someone new.
(i)The Respondent did not consider that on 14 October 2019, a Respondent legal adviser considered it reasonable for her to travel 304km round trip to attend an IME, which for obvious reasons she did not attend.
(j)She considers that a 96km round trip for in-person appointments with [Dr M] for the purpose of three permanent impairment assessments and to complete the required paperwork to enable her to lodge her compensation claims is support by medical evidence to be both ‘reasonable’ and ‘necessary’ in the circumstances.[33]
(k)The Respondent did not consider that she would have incurred a fee to print, post and transfer her records.
(l)The Respondent did not consider the cost of increased GP fees for the additional time she would have been in consultation with a local GP who is unfamiliar with her case as well as the time it would have taken a local GP to become fully familiar with her records, compared to a travel expenses claim of $326.40 for all consultations on the relevant dates.
(m)The Respondent did not consider that she attended an IME with [Dr C] (Consultant Psychiatrist) on 16 June 2023, which required her to retell her story and resulted in a significant increased in her psychological conditions.
(n)The Respondent did not consider that since August 2023, the Respondent has approved weekly psychological treatment, rather than fortnightly treatment, because of further deterioration in her mental health.
[32] Evidence from MR supports this view.
[33] Evidence from MR supports this view.
In addition, the Applicant noted that the Respondent, in denying her claim for travel expenses, relied on information available to it at the time her now compensable claims were considered and denied, which the Applicant considers to be an erroneous approach.
The Applicant also referred to the Respondent’s obligation, as a model litigant, to assist in Tribunal proceedings and the unconscionability of the Respondent continuing to dismiss the evidence of the trauma she suffers in retelling her story.
At hearing, the Applicant added:
(a)In the cases of Lockwood and O’Brien, the medical appointments in those matters were arranged by solicitors for the purpose of medicolegal reports. In her own case, the claim form for permanent impairment required her and her treating doctor to complete it.
(b)Each of the consultations with [Dr M] on the relevant dates involved medical assessments as well as the preparation of documentation. The assessments involved a lot of physical and mental examination. Therefore it is her understanding that a claim can be made.[34]
(c)The cases relied upon by the Respondent[35] involved physical injuries and travelling distances of 610kms, 91kms, 120kms and 460kms. [Dr M] changed practices to a location not far removed from where he treated her previously. Further:[36]
Perkins v Comcare [2018] AATA 3010, where the injured worker had a psychiatric condition and it was determined that it was reasonable for her to travel to doctors that were 488 kilometres to 520 kilometres round trip because of her psychological conditions. And then there’s also Riley v Military Rehab and Compensation Commission [2007] AATA 1826. Again, where the injured worker had an accepted psychological condition and it was determined reasonable for her to travel 256 kilometres round trip. And in my circumstances it’s 96 kilometres round trip, which is a 35 to 40 minute drive, which is obviously much lesser distance than those two matters that were determined to be reasonable.[37]
(d)It is unreasonable and unrealistic of the Respondent to expect her to terminate treatment with [Dr M], with whom she has developed a trust relationship with, just because it went from being a five minute drive to a 35 to 40 minute drive to consult with him. Their trust relationship is central to the provision of her medical treatment and in her not being retraumatised to the detriment of her mental health.[38]
(e)She did not want to proceed to a hearing just for her monthly GP review travel expenses. However, when it came to the permanent impairment assessments and paperwork, the form itself states that it is to be completed by her treating doctor.
[34] The Respondent noted there is authority that this does not change the character of the assessment what was performed (citing O’Brien) (transcript, page 15).
[35] 1) Stevens and Comcare [1995] AATA 310, 2) Stevens and Comcare [1997] AATA, 3) Re Mecke and Comcare [2006] AATA 593 and 4) Brown and Comcare [2011] AATA 193.
[36] Transcript, p 19.
[37] The Tribunal notes that these cases was not in the context of the applicant travelling to a medical practice for completion of a claim form for permanent impairment. Rather, they related to the cost of the applicant in each case seeking medical treatment generally.
[38] The Tribunal notes that evidence from MR supports this view.
Having heard the Applicant’s oral submissions, the Respondent further submitted:[39]
[39] Transcript, p 15 to 18.
Indeed, she’s been aware since at least June 2019 that Comcare no longer considered it reasonable for her to claim reimbursement of expenses incurred in travelling to [Dr M’s] new location because Comcare issued a determination declining liability for travelling expenses so incurred on 14 June 2019…
…
… There is some force in the arguments she makes regarding [Dr M] being the most appropriate practitioner to assess any permanent impairment, and also [MRs] opinion that she shouldn’t be required to consult another practitioner and thereby exacerbate her psychological condition by having to recount her history again.
…But against that…she has attended from time to time for independent medical examinations where she’s been required and she’s had to do just that. And had she sought the services of an alternative practitioner when or shortly after [Dr M] relocated, it may well be that she would have long ago overcome that particular hurdle and developed a relationship of trust with a new GP. So in that regard we say the decision of the tribunal in Brown v Comcare is not without some congruence. … the applicant in that case had chosen to continue to attend her chosen GP’s practice despite having herself relocated, in order to obtain continuity of care and because she believed the doctors were genuinely concerned about her level of care and ongoing treatment.
It observed that the argument had not been accepted as sufficient to justify continuing to see an existing GP where a person has to travel more than 50 kilometres to do so, and where there were general practices available in closer proximity to the person’s residence, and noted that it had generally only been for the receipt of specialist care or circumstances relating to a particular patient’s needs that it had been accepted. So then after finding that there was insufficient reason for the applicant to continue travelling … to see her GP – … the tribunal observed…
Ms Brown could have made more assiduous efforts to find a medical practice in Canberra which would take her as a patient after her return to live in the Canberra region. Although no evidence was provided specifically about the accessibility of the various medical practices referred to as at the relevant date, the evidence is that Ms Brown could have at least attended the Phillip Healthcare Centre, a walk-in practice, on an interim basis while she sought to find another Canberra region practice where she could have developed a relationship and enjoyed the continuity of care with a doctor or doctors of her choice which she seeks.
So in the present case, the evidence from the schedule relied upon by the respondent is that there were seven medical practices within 10 kilometres of YNCJ’s residence.[40] And there’s no evidence that she approached any of them with a view to ascertaining whether any of them would take her on as a patient and/or assist her in the completion of her permanent impairment benefit claim forms, save … that she asked the manager of her local GP practice whether she could have had the forms completed there and was told that in the normal course of events they would refer her to [Dr M] as her usual GP to assist them.
But that query was made only on 8 June 2023 after the travel costs had already been incurred and declined. And there is no evidence of any of the other practices having been approached at all.
…
…in my respectful submission the balance, given the date on which [Dr M] relocated, really is against it being reasonable for her to continue to attend upon him. But in any event, we say we don’t get to any of those considerations of reasonableness because the attendances were for the purposes of completing the claim forms for section 24 and just don’t come within section 16.
[40] R3.
Weighing the evidence
The Respondent concedes, and the Tribunal agrees, that the Applicant’s arguments do indeed have some force. Certainly, it does seem reasonable to the Tribunal in the general sense of the word, that in the circumstances of this particular Applicant, taking into account:
(a)The nature of her injury and secondary conditions;
(b)The trauma that the Tribunal accepts she would suffer in ‘retelling’ her story;
(c)The view one could take that her continued travel to [Dr M] is one of the measures she has undertaken to ensure such repetition is minimised; and
(d)The extra time and expense to which she would be put if she had attended a GP within a 50km round trip in her local area for completion of the documentation for her permanent impairment claims,
that she, or anyone in her position, in fact could reasonably expect to have her related travel claims met.
The Applicant has sought to substantiate her position with case law where the applicants in those cases did have travel expense claims reimbursed for round trip distances greater than her own. However, these cases were not set in the context of travel to a treating practitioner for the purpose of completion of permanent impairment claim form documentation and did not deal with the issue of whether attendances for this purpose constituted medical treatment for present purposes.
Similarly, the Applicant has also sought to rely on the Respondent’s obligation as a model litigant to assist in Tribunal proceedings which the Tribunal understands she views as somewhat incredulous given the objectively nominal amount in question and what the Applicant views as the unconscionability of the Respondent continuing to dismiss the evidence of the trauma she suffers each time she retells her history to a new practitioner for the first time.
In the Tribunal’s view, however, the Respondent has not been dismissive of her arguments regarding trauma per se. Indeed, the Applicant’s argument were fully canvassed in her submissions and at hearing and the Respondent was thorough in its response.
The Respondent, rather, perceives that it has stressed the need for a balance to be struck in circumstances where given the date on which [Dr M] relocated (being some years ago), and the options available to the Applicant to attend a GP in her local area, it really cannot be conceived as reasonable for the Applicant to continue to attend upon [Dr M].
In any event, the Respondent’s view is that the Tribunal is not put to the task of considering the reasonableness of the expenditure incurred under s 16(6)(b) of the SRC Act because the attendances were for the purposes of completing the forms for a claim under s 24 of the SRC Act and were not medical treatment under s 16(6)(a) of the SRC Act.
Having considered the available evidence and arguments, the Tribunal finds that it agrees with this proposition. That is, the Tribunal is not satisfied that the Applicant’s attendances at [Dr M] on the relevant dates constitute ‘medical treatment’ for the purpose of s 16 of the SRA Act. While the Tribunal accepts that on these dates [Dr M] may have performed numerous assessments and examinations of the Applicant, which had the results of these indicated to him that specific new or revised medical treatment was necessary, there is no evidence this being the case. Rather, the consultation notes indicate the purpose of these attendances were to complete the relevant forms for the Applicant’s claims for permanent impairment.
CONCLUSION
The Tribunal has found that the Applicant’s attendances upon [Dr M] on the relevant dates for completion of permanent impairment benefit claim forms is not ‘medical treatment’ for the purposes of s 16 of the SRC Act.
As such, the Tribunal is not required to consider whether the Applicant’s claimed related travel expenses were ‘reasonably incurred’ in making a ‘necessary journey’ for that purpose.
DECISION
The Reviewable Decision is affirmed.
I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher
............[Sgd]............................................................
Associate
Dated: 18 September 2024
Date of hearing: 8 May 2024 Applicant: Self-Represented Solicitors for the Respondent: Ms Amanda Danti of Sparke Helmore Lawyers
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