ZXCF and Comcare (Compensation)

Case [2019] AATA 3572

ZXCF and Comcare (Compensation) [2019] AATA 3572 (17 September 2019)

Division:GENERAL DIVISION

File Number:          2018/2989

Re:ZXCF

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans

Date:17 September 2019  

Place:Perth

1.The Reviewable Decision, being the decision of a delegate of the Respondent dated 3 April 2018, is set aside.

2.The Tribunal substitutes a new decision that the Respondent is liable to pay compensation pursuant to s 16(1) of the SRC Act for nutritional supplements and craniosacral therapy, being therapeutic treatments obtained at the direction of the Applicant’s legally qualified psychiatrist, Dr Williams, for the purpose of treating the Applicant’s accepted PTSD condition.

................................[sgd]...................................

Senior Member Dr M Evans

CATCHWORDS

Compensation – Workers’ Compensation – Commonwealth employee – whether Comcare liable to pay compensation – Post Traumatic Stress Disorder – therapeutic treatment – at the direction of a legally qualified medical practitioner – craniosacral therapy – nutritional supplements – whether the treatment is medical treatment – whether the treatment is obtained in relation to an accepted injury – whether the treatment was reasonable for the Applicant to obtain in the circumstances – Clinical Framework – relevance of Clinical Framework – decision set aside and substituted with a new decision.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4(1), 4(1)(b), 5A(1), 5B(1), 14(1), 16(1)

CASES

Alamos v Comcare [2014] AATA 629

Bashar and Comcare Australia (2002) 69 ALD 784

Bayani v Australian Postal Corporation [2015] AATA 342

Blackwell and Comcare [2017] AATA 1357

Comcare v Holt (2007) 94 ALD 576

Comcare v Watson (1997) 73 FCR 273

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Durham and Comcare [2014] AATA 753

Jorgensen and Commonwealth (1990) 11 AAR 543, 23 ALD 321

King and Comcare [1998] AATA 822

Napier and Comcare [2017] AATA 1452

O’Day v Comcare [2017] AATA 1328

Perich and Secretary, Department of Social Services [2018] AATA 963

Pethes and Comcare [2018] AATA 483

Rope and Comcare (2013) 135 ALD 410

Stitt and Comcare [2018] AATA 3092

Thiele v Commonwealth of Australia (1990) 22 FCR 342

Topping v Comcare [2015] AATA 525

SECONDARY MATERIALS

Concise Oxford English Dictionary, 10th Ed

Shorter Oxford English Dictionary, 6th Edition

Freckelton I and Selby H, Expert Evidence: Law Practice, Procedure and Advocacy (5th ed), Thomson Reuters Lawbook Co, 2013

Upleger, John E, “The Effects of Upleger Craniosacral Therapy on Post Traumatic Stress Disorder Symptomology in Vietnam Combat Veterans” 11(2) Subtle Energies & Energy Medicine 123

REASONS FOR DECISION

Senior Member Dr M Evans

THE APPLICATION

  1. The Applicant was employed in a clerical position by the Department of Social Services (Centrelink) until 16 July 1993, having worked there for approximately 7 years and


    7 months (Exhibit R1, T10, pages 88 and 90).

  2. On 23 October 1993, the Applicant lodged a compensation claim for “stress” (T8, pages 84-85). The Applicant described her symptoms in this claim as being “heart palpitations, blood pressure, jaw pain, “psychological”, lack of concentration, lack…

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Details
AGLC
ZXCF and Comcare (Compensation) [2019] AATA 3572
Case
[2019] AATA 3572
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of Comcare, which affirmed a previous determination that Comcare was not liable to pay compensation for nutritional supplements and craniosacral therapy. The applicant, a Commonwealth employee suffering from Post Traumatic Stress Disorder (PTSD), sought compensation for these treatments, which she contended were obtained at the direction of her legally qualified psychiatrist and were beneficial in managing her accepted condition. The Administrative Appeals Tribunal was tasked with determining Comcare's liability under section 16(1) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth).

The central legal issue before the Tribunal was whether the nutritional supplements and craniosacral therapy constituted "medical treatment" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). This required the Tribunal to consider whether these treatments were obtained in relation to the applicant's accepted PTSD injury and, crucially, whether they were reasonable for the applicant to obtain in the circumstances. The Tribunal was also required to consider the relevance of the Clinical Framework in assessing the reasonableness of the treatment.

The Tribunal found that the craniosacral therapy and nutritional supplements were therapeutic treatments obtained at the direction of the applicant's legally qualified psychiatrist for the purpose of treating her accepted PTSD condition. The Tribunal reasoned that these treatments were integral to managing the physical effects of her PTSD, which included depression, anxiety, panic attacks, and insomnia. By substituting a new decision, the Tribunal ordered that Comcare was liable to pay compensation for these treatments.

Orders

Orders of the court

1. The Reviewable Decision, being the decision of a delegate of the Respondent dated 3 April 2018, is set aside.

2. The Tribunal substitutes a new decision that the Respondent is liable to pay compensation pursuant to s 16(1) of the SRC Act for nutritional supplements and craniosacral therapy, being therapeutic treatments obtained at the direction of the Applicant’s legally qualified psychiatrist, Dr Williams, for the purpose of treating the Applicant’s accepted PTSD condition.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 3 April 2018, a Senior Review Officer of the Respondent affirmed the determination of 10 January 2018 (Exhibit R1, T62, page 229-232). This will be referred to as the Reviewable Decision. On 29 May 2018 the Applicant lodged an application for a review of the Reviewable Decision in the General Division of the Administrative Appeals Tribunal (the Tribunal) (Exhibit R1, T2, pages 5-8). ISSUE The Tribunal agrees with the formulation of the issue provided in the Respondent’s Statement of Facts, Issues and Contentions (SFIC). The issue that requires determination by the Tribunal is whether the Respondent is liable to pay compensation to the Applicant pursuant to s 16(1) of the SRC Act for nutritional supplements and craniosacral therapy, obtained for the purpose of treating the Applicant’s accepted PTSD condition. This requires consideration of whether each treatment:(a)is medical treatment; (b)is obtained in relation to the accepted injury; and (c)was treatment that was reasonable for the Applicant to obtain in the circumstances. MATERIAL BEFORE THE TRIBUNAL The hearing took place on 30 April 2019. The Applicant was self-represented throughout this matter. She did not attend the hearing due to her PTSD condition. The Tribunal gave leave to the Applicant not to attend the hearing by a Direction dated 26 October 2018. Mr Hawker appeared as counsel for the Respondent, assisted by his instructing solicitor Ms Lehman, both of whom appeared in person. The Tribunal admitted the following documents into evidence at the hearing:(a)letter from the Applicant containing submissions dated 5 April 2019 (Exhibit A1);(b)letter from the Applicant containing submissions dated 31 January 2019 (Exhibit A2);(c)s 37 Documents (T Documents) numbered T1 to T66 and comprising 361 pages (Exhibit R1);(d)Respondent’s SFIC dated 18 January 2019, with annexures A, B and C (Exhibit R2);(e)Respondent’s Statement of Issues dated 2 July 2018 (Exhibit R3);(f)initial determination letter, dated 6 December 1993 (Exhibit R4);(g)medical report of Dr Spear, dated 21 November 2018 (Exhibit R5); and(h)briefing letter to Dr Spear, dated 8 November 2018 (Exhibit R6).THE APPLICANT’S EVIDENCE The Applicant submitted that the craniosacral therapy and nutritional supplements assist her in the management of the ongoing symptoms of her PTSD (Exhibit R1, pages 5-8; Exhibit A1; Exhibit A2). In her application to the Tribunal dated 25 May 2018 seeking a review of the Reviewable Decision, the Applicant made the following submissions about the benefits which she receives from the nutritional supplements and the craniosacral therapy (Exhibit R1, T2, pages 5-6):In the letter “Reconsideration of determination” dated 3 April 2018, the list that [the delegate of Comcare] has quoted from Dr Tabrizian in her review is not a list of the vitamins and minerals that I currently take but more of a list of some of the various ones that have been trialled [sic] to manage my symptoms. I claim very little from Comcare in relation to the supplements that I take, I consistently take the compounded capsule by [name omitted] Pharmacy (which includes small amounts of ingredients that work synergistically together including zinc etc for insomnia) Magnesium powder, (well known throughout the world as a tranquilizer), B12, Methyl Folate and B6, all helping with depression, Vitamin C and Ubiquinol (from CoQ10). These could be varied from time to time depending on how well my symptoms are managed. Because of the PTSD I have in varying degrees depression, anxiety, panic attacks, insomnia and organisational challenges, I am also very sensitive to everyday stresses, including sight and sound. Nutritional supplements as mentioned and the Craniosacral Therapy helped to balance the physical effects of these stresses. My goal is to manage these symptoms and the physical changes that occur because of them, to keep myself functioning in my day to day living. Unmanaged symptoms have the potential to cause many more physical diseases so it is imperative that my management protocol is as effective as it can be. The magnitude of the symptoms can vary enormously when there is additional stress. [sic] as has been the case recently. The physical effects of PTSD are very numerous and can be very debilitating…

Ratio Decidendi

Legal Principle Established

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