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 Act1988 (Cth) for the Applicant’s travel expenses to attend general practitioner appointments on:
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
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 Act1988 (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’…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
YNCJ and Comcare (Compensation) [2024] AATA 3313
Case
[2024] AATA 3313
Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal (the Tribunal) considered a dispute between YNCJ (the Applicant) and Comcare (the Respondent) concerning the Applicant's entitlement to compensation for travel expenses. The Applicant had lodged a claim for workers' compensation following a physical injury in 2016, and subsequently for a secondary psychological condition. The core of the dispute revolved around whether attendance at a medical practitioner for the assessment of permanent impairment and completion of claim forms constituted "medical treatment" under section 16 of the *Safety, Rehabilitation & Compensation Act 1988* (Cth), and alternatively, whether the Applicant's travel expenses to attend these consultations were "reasonably incurred" for a "necessary journey."
The legal issues before the Tribunal were twofold. Firstly, it had to determine if the Applicant's consultations with her General Practitioner, Dr. M, for the purpose of assessing permanent impairment and completing the relevant claim forms qualified as "medical treatment" as defined by section 16 of the SRC Act. Secondly, if such attendance was not considered medical treatment, the Tribunal was required to assess whether the Applicant's travel to these consultations was "reasonably incurred" and constituted a "necessary journey" under subsections 16(6), 16(7), and 16(8) of the SRC Act, considering factors such as the availability of alternative medical practitioners and the reasonableness of the travel undertaken.
The Tribunal's reasoning focused on the interpretation of "medical treatment" and the reasonableness of the travel. It noted that attendance for the sole purpose of completing permanent impairment claim forms, as opposed to receiving direct medical care, was generally not considered "medical treatment" under section 16 of the SRC Act, citing precedent. Furthermore, the Tribunal considered the Applicant's travel to Dr. M, who had relocated significantly further from her residence. Despite the Applicant's arguments regarding her long-standing relationship with Dr. M, his familiarity with her complex medical history, and the potential for increased anxiety if she had to retell her story to a new GP, the Tribunal found that the Applicant had not demonstrated that it was unreasonable to seek treatment from other GPs located closer to her home. The Tribunal highlighted that the Applicant resided in a metropolitan area with numerous GP practices available, and the decision to continue travelling a considerable distance to Dr. M appeared to be based on personal preference rather than absolute necessity, especially given the availability of alternative practitioners.
Ultimately, the Tribunal affirmed the Respondent's decision to deny liability for the Applicant's claimed travel expenses. The Tribunal concluded that the attendance for the purpose of completing permanent impairment claim forms did not constitute "medical treatment" under section 16 of the SRC Act. Moreover, it found that the Applicant's travel to Dr. M was not reasonably incurred for a necessary journey, as there were readily available alternative medical practitioners closer to her residence, and the Applicant had not sufficiently demonstrated that continuing to consult Dr. M was a necessity rather than a personal choice.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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.