FEDERAL COURT OF AUSTRALIA Bashar v Comcare Australia [2002] FCA 837 AHMET BASHAR v COMCARE AUSTRALIA N1253 of 2001 MADGWICK J 19 JUNE 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1253 OF 2001 BETWEEN: AHMET BASHAR APPLICANT AND: COMCARE RESPONDENT JUDGE: MADGWICK J DATE OF ORDER: 19 JUNE 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal dated 1 August 2001 be set aside. 2. The matter be remitted to the Tribunal for reconsideration according to law by the Tribunal differently constituted. 3. The respondent pay the applicant's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1253 OF 2001 BETWEEN: AHMET BASHAR APPLICANT AND: COMCARE AUSTRALIA RESPONDENT JUDGE: MADGWICK J DATE: 19 JUNE 2002 PLACE: SYDNEY REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This is an appeal on a question of law from the decision of the Administrative Appeals Tribunal ("the Tribunal") constituted by Senior Member MJ Sassella given on 1 August 2001. The Tribunal affirmed the decision of the respondent to cease the acceptance of liability for the payment of compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the Act") on and after 18 May 1998, for physiotherapy obtained by the applicant in respect of what had long before been accepted and for a very long time after its acceptance been treated as a compensable back injury. By the amended notice of appeal and the applicant's written submissions, the applicant has sought to raise a number of matters, however I need only decide one of the issues and comment on another, to dispose of the matter. 2 The applicant, Mr Bashar, at the time of the hearing before the Tribunal, was a man in his late 70s. He had worked as a clerical assistant in the Commonwealth Public Service from 1958 to 1984. At the latter date he was about 62. He first suffered a back injury in 1962, apparently occasioned by lifting heavy objects, and he underwent a lumbar laminectomy in 1963. It appears that he suffered further back injuries in 1978 and 1980. The respondent or its predecessor refused to accept liability for the effects of any of these injuries as from December 1982. However, in December 1985 the Tribunal found the applicant to be totally incapacitated for work by reason of the aggravation of a pre-existing back condition to which his employment had been a contributing factor. 3 For a long time the applicant received a great deal of physiotherapy treatment. I think it is correct that, until May 1998 when the respondent ceased paying for the physiotherapy, that the applicant continued to have, he had had something like 1400 sessions of physiotherapy treatment in about 12 years. It was his case not only that he should be paid for physiotherapy treatment for the four times per week which he had been having it when the decision to reject liability was made in 1998, but that he had a medical need for physiotherapy five times a week. 4 The relevant legislation defines medical treatment, unless the contrary intention appears, to mean (among other things): "(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur, or chiropractor registered under the law of a State or Territory providing for the registration [of such categories of putative therapists]." 5 Section 16 of the Act provides: "where an employee suffers an injury, [a concept exhaustively defined elsewhere in the Act], Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances) compensation of such amount as Comcare determines is appropriate to that medical treatment." This obligation applies pursuant to s 16(2) of the Act whether or not the injury results in "incapacity for work, or impairment". 6 The applicant did not appear when the matter was ultimately heard and did not give oral evidence before the Tribunal. Complaint is made, among other things, that the Tribunal member did not give the applicant a reasonable opportunity to be heard in the matter by reason of failure to adjourn the hearing on account of what was accepted to be the applicant's medical inability to attend the Court on the day mentioned. However, the matter had a particular history and, as far as I can see, in general the Tribunal had been appropriately attentive to the applicant's medical problems and had offered to go out of its way and to adopt unusual means of receiving his evidence, with a view to accommodating his problems. 7 It seems to me that it was well open to the Tribunal member in the exercise of a broad discretion, to conclude that he had already given the applicant a fair chance to be heard. I would not be inclined to interfere in that regard. However, I have not heard counsel for the applicant in full on that and I need not express a final conclusion about it. Likewise, there was a more refined argument put that, as matters developed before the Tribunal, a particular issue arose which made it unfair to the applicant to proceed without his again being distinctly put on notice that an avenue of inquiry was being followed that might make any evidence that he could give especially relevant. I have not considered that matter at all. 8 The respondent's case, in a nutshell, was that for some years it had been demonstrable that the resort by the applicant, on the scale that had existed and with the intensity shown, to physiotherapy was simply medically pointless. For example, he continued to have a need for analgesic medication despite the physiotherapy and, despite asserting to others that the physiotherapy gave him some relief, was full of complaints to the physiotherapist which were inconsistent with any special or significant degree of relief having been afforded to him. After the refusal to pay for the physiotherapy, the applicant himself, however, did continue to pay for his physiotherapy out of his own pocket. 9 The Tribunal member did not decide, however that it was not "reasonable" for the employee to obtain [the treatment in the circumstances] but held instead that the physiotherapy was not "medical treatment". This was because, so the Tribunal Member reasoned, the medical treatment had to be, as required in the definition of "medical treatment", "therapeutic". The Tribunal Member considered that he was applying the judgment of Finn J in Comcare v Watson (1997) 46 ALD 481. In that case, at 484, Finn J said "As the observation from Hill J I have quoted indicates, the direction must be to obtain 'therapeutic treatment'. These words raise the second matter of construction to which I need refer. I do not consider that the construction adopted by the Tribunal was erroneous. A course of treatment designed to, or aimed at, alleviating the pain caused by an injury or disease is, in my view, properly to be regarded as therapeutic treatment. The applicant has submitted that a treatment can only be 'therapeutic' if its object is to cure a disease or injury. Though some dictionary definitions do emphasise the 'healing or curative' connotation of the words 'therapy' and 'therapeutic': see eg Shorter OED, 3rd Ed; the latter's use in this context encompasses the alleviation of the pain of an injury. This view is consistent with the s4 definition of 'therapeutic treatment' which includes 'treatment given for the purpose of alleviating an injury'. The Shorter OED, for example, defines 'alleviation' as 'the action of lightening ... pain'. That usage is an appropriate one to apply here given the s4 definition itself. And it permits a construction which accords with the beneficial purposes of the legislation: see Thiele's case, 380-381. To the extent that the terms might be thought to be ones having a 'trade' meaning, or else are illuminated in some way by practitioners of the 'trade', I would note in passing that both the applicant's own doctor, Dr Alder and an occupational physician, Dr Scott, described Ms Watson's program as variously 'therapeutic in nature' or as 'therapeutic'. The only additional comments I would make on this are, first, that therapeutic treatment in this setting is a purposive activity - ie 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 well 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." It is perfectly clear from what Finn J said and, with respect, I agree with his Honour, that the purpose of the treatment must be therapeutic. Further, it is perfectly clear that his Honour was saying, and again, with respect, I agree with him, that the notion of therapeutic treatment includes merely palliative treatment, what his Honour referred to as, "the alleviation of the pain of an injury". It may or may not be relevant to the case but, in the context of a statute such as this, the notion of "therapeutic" might well also include a further extension, namely, treatment for prophylactic or preventative purposes, that is to say, to prevent the pain, or other effects of an injury from becoming worse or from appearing. 10 The Tribunal Member apparently relied on Finn J's remarks for the following proposition which immediately followed the quotation of those remarks in the Tribunal Member's decision: "If the applicant's physiotherapy treatments do relieve his pain then they can to that extent be described as medical treatment under the Act. It is not essential they lead to a complete cure or resolution of his condition." In other words, the Tribunal Member shifted from a consideration of the purpose of the treatment to a consideration of the effects of it and thought that he was giving effect to what Finn J had said in Comcare v Watson. 11 In the treatment of work injuries and in cases about compensation for such injuries, few things are more common than that medical treatment of one kind or another that has been undertaken does not work or even, commonly enough, worsens the condition complained of. There was ample material, indeed, it would seem an overwhelming preponderance that the physiotherapy treatment, although provided so regularly and for so long, was nevertheless aimed at producing beneficial results in relation to the applicant's complaints that he alleged stemmed from his compensable injury. If it were the case that these had had no effect in relieving his pain, this alone would not resolve the matter and it would not mean that the physiotherapy treatments were not treatment under the Act. 12 The fact if it were a fact, that they had had no discernible effect would be a matter that would bear, and might bear powerfully in the context of all of the evidence, on the question of whether it was, or continued to be, reasonable for the applicant to obtain such treatment in the circumstances. But those circumstances would be all the circumstances in which the applicant found himself. 13 Thus, it is clear that the Tribunal member misapprehended the law and did not address the correct questions. 14 It is submitted by Mr Kelly for the respondent that nevertheless the Court should not intervene, that it should be regarded as a case where one could necessarily infer that the position would and could be no different had the Tribunal approached its case in the correct manner. Mr Kelly submitted that it was really implicit in the Tribunal's findings that it had not been reasonable of the applicant in the circumstances to obtain or continue obtaining the treatment. 15 It is enough to say that had the Tribunal member approached the matter, in what seems to me to be the legally correct way, it was not inevitable that the same result must have been arrived at. First, there was no consideration of or finding about all of the applicant's circumstances. There was for example, some material which suggested that the applicant would be willing to try a different kind of therapeutic intervention despite an earlier reluctance to do so, namely intervention by a pain clinic established by one of the major hospitals, whereas there was a suggestion that, having decided that it should not pay for more physiotherapy, Comcare had not been willing to fund that particular kind of intervention, regarding it as just another form of physiotherapy. Second, it is not necessarily self-evident that if four or five physiotherapy treatments per week tend to the excessive, one or even two might not. So I do not think it is a case where the Court would be justified either in concluding that such error as the Tribunal made was not an operative one in the sense that it affected the result nor one for the Court, in its discretion, to withhold relief. 16 Mr Kelly also submits that the Court should depart from what has become the usual practice of directing that a member of the Tribunal, other than the member who comprised it for the making of the decision under appeal, should re-hear the matter after its remission to the Tribunal. 17 Counsel have not had the opportunity to assist me fully in relation to what I thought to be recent decisions of the Court in this regard, but it would seem that I am bound by Full Court opinions to the effect that, when a decision is set aside and a matter remitted to be heard and decided again: "Justice is, in general, better seen to be done if the Court or the Tribunal is reconstituted for the purposes of the rehearing." See Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42-3; Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 and the remarks of Burchett J in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. 18 Mr Kelly points out that quite a vast body of material was before the Tribunal and it would take some time and effort to master it and submits that the considerable cost and effort of putting the Tribunal in a position to do this should not need to be undertaken twice. There is something to be said for this point of view, but it is enough to say that, quite apart from the firm expression of an ultimate view against the applicant, which would not weigh with me to any great degree, the Tribunal member unessentially, as I would understand the Tribunal member to have viewed the matter, accepted the opinion of a psychiatrist, Dr Donsworth, qualified by the respondent. This was to the effect that the applicant had no diagnosable psychiatric disorder but a psychological reliance on the physiotherapy treatment, which had not developed at all from the compensable back injury but derived from the applicant having a "basic personality construction" that involved obsessive behaviour and the observance of a ritualised life style. The need for compulsive behaviours on the part of the applicant, in the doctor's opinion, was inexhaustible and at best it was possible that the real benefit received by the applicant related to the physical pleasures of being massaged and to the human contact gained thereby. 19 It seems to me quite clear that a reasonably intelligent lay member of the community who knew something of the functioning of the system would nevertheless be likely to entertain a reasonable suspicion that, in the light of a finding of this kind, the Tribunal member would start off with a predilection of mind that would make acceptance of anything much that the applicant might say on the subject somewhat difficult. I think that the interests of justice would indeed be served if the usual course were followed and the usual kind of order made. 20 For these reasons, in my opinion, the appeal to the Court should succeed and it is not necessary to deal at all with the other grounds on which the Court is asked to intervene. The decision of the Tribunal will be set aside and the matter remitted to the Tribunal for rehearing according to law by the Tribunal differently constituted. The respondent is to pay the applicant's costs of the appeal to the Court. 21 I should offer, as an addendum, some short further observations with counsel. It is a frequent source of surprise to me that more resort is not had to decisions of State Courts dealing with workers' compensation cases in cases such as this. The general nature of the statutes is similar though, of course, the wording may and does differ, sometimes with crucial results. But the learning and the approaches of very experienced, usually very capable and in some cases quite brilliant judges, for example of the New South Wales Compensation Court and its predecessors, ought to be of very great value to the Tribunal. There are published reports, for example, of the New South Wales Court. Presently these are reported as the New South Wales Compensation Court Reports, formerly the Workers' Compensation Reports, and there is a useful practice book published by Butterworths (it is still known as "Mills", after the timeless academic lawyer who began the work) and edited by a distinguished scholar. I dare say that the internet also provides access to other decisions of that Court. The Court has, as I understand it, a capable librarian who no doubt would give fraternal assistance to the Tribunal's own librarian. I include these remarks in a constructive spirit, rather than one of patronising. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 24 June 2002 Counsel for the Applicant: Mr L Grey and Mr S McCarthy Solicitor for the Applicant: P K Simpson & Co Counsel for the Respondent: Mr B Kelly Solicitor for the Respondent: Sparke Helmore Date of Hearing: 19 June 2002 Date of Judgment: 19 June 2002