FEDERAL COURT OF AUSTRALIA Comcare Australia v Rope [2004] FCA 540 COMPENSATION – s 16(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether psychoneuroimmunology treatment was reasonable for the employee to obtain in the circumstances – factors to be considered in determining this issue – cost of travel to Townsville to obtain treatment a relevant factor to be considered Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 14, 16(1), 16(6) Re Jorgensen and Commonwealth of Australia (1991) 23 ALD 321 discussed COMCARE AUSTRALIA v ELEANOR ROPE A26 OF 2003 STONE J 7 MAY 2004 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A26 OF 2003 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MEMBER WEBB BETWEEN: COMCARE AUSTRALIA APPLICANT AND: ELEANOR ROPE RESPONDENT JUDGE: STONE J DATE OF ORDER: 7 MAY 2004 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A26 OF 2003 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MEMBER WEBB BETWEEN: COMCARE AUSTRALIA APPLICANT AND: ELEANOR ROPE RESPONDENT JUDGE: STONE J DATE: 7 MAY 2004 PLACE: CANBERRA REASONS FOR JUDGMENT INTRODUCTION 1 This is an appeal from a decision of the Administrative Appeals Tribunal ('Tribunal') given on 21 August 2003. The Tribunal reviewed two decisions made by authorised review officers who affirmed decisions made by delegates of the applicant, Comcare. Those decisions concerned two claims made by the respondent, Mrs Eleanor Rope, for compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) ('SRC Act'). One claim, under s 16(1) of the SRC Act, was for compensation for the cost of psychoneuroimmunology ('PNI')treatment and the other, under s 16(6), for travel costs from Canberra to Townsville where the treatment was given. background 2 Mrs Rope was injured in a motor accident in March 1987. At the time she was employed by the Department of Education and Community Services. The motor accident caused trauma to the soft tissues of Mrs Rope's neck. The injury caused her very considerable pain and resulted in a significant degree of physical impairment. In June 1992 a fall on an escalator at work increased the severity of her pain and the extent of her physical impairment. In 1999 Mrs Rope retired on grounds of invalidity. 3 The applicant, Comcare Australia, accepted that Mrs Rope had suffered an injury within the meaning of s 4(1) of the SRC Act and accepted liability under s 14 for 'muscular injury to the neck', 'traumatic cervical spine', 'psychiatric condition' and 'reflux oesophagitis'. The history of Mrs Rope's treatment and subsequent dealings with Comcare is not in dispute. The written submissions of the applicant, omitting references to the relevant pages of the appeal book, contain a convenient summary which I gratefully adopt. 'Between 1990 and 1999, Ms Rope received psychotherapy treatment from Ms Anne Just, a clinical nurse psychotherapist. The treatment was provided in Canberra, where Ms Just conducted her practice and Ms Rope lived. In 1999, Ms Just moved her practice to Townsville and, in the same year, Comcare paid for Ms Rope to travel to Townsville and receive a "one off" treatment from Ms Just. Ms Rope was then referred for treatment to Mr Brian Hodge, a psychologist practising in Canberra. On 5 December 2001, Mr Hodge requested that Comcare cover the cost of Ms Rope travelling to Townsville so that Ms Rope could receive one week's treatment from Ms Just. Comcare concluded that the cost of travel to Townsville was unreasonable and disallowed the claim. Following a request for reconsideration from Ms Rope, Comcare affirmed the determination to disallow the claim, because the cost of travelling from Canberra to Townsville was not a reasonably incurred expenditure for the purposes of obtaining medical treatment. Ms Rope applied to the Tribunal for review of Comcare's reviewable decision (the decision made on reconsideration). Three days before the hearing of the review, Comcare reconsidered (of its own motion) the decision that the particular form of treatment to be provided by Ms Just, PNI treatment, was not reasonable medical treatment for the purposes of s 16 of the SRC Act. (Up to that point, no reviewable decision had been made in relation to the treatment, as opposed to travel costs.) Comcare affirmed the determination that PNI treatment was not treatment that it was reasonable for Ms Rope to obtain. According to the material before the Tribunal, PNI treatment was a form of psychological counselling in which Ms Just had developed expertise; it shared some features with other forms of psychological treatment (such as that provided by Mr Hodge), but was distinct from those other forms. There was no practitioner who could provide PNI treatment in Canberra.' Evidence before the Tribunal 4 The Tribunal received evidence from Mrs Rope, Mr Hodge, Ms Just and four medical experts, Dr Linda Welberry, Mrs Rope's general practitioner, Dr Leon Le Leu, an occupational physician and two consultant psychiatrists, Dr William Knox and Dr John Saboisky. Mrs Rope said unequivocally that the treatment she received from Ms Just gave her considerable pain relief and all the other witnesses, except Dr Saboisky, testified to the value of Ms Just's treatment for Mrs Rope. 5 Ms Just said that PNI embraces psychology, biology, endocrinology and also the behavioural sciences. She described it, in lay terms, as 'what the mind can do for the body' and emphatically denied that PNI was the same as the treatment provided by Mr Hodge; rather it should be seen as a supplement to Mr Hodge's therapy. Mr Hodge, who has treated the respondent on a fortnightly basis since 1999, echoed this view and said he has no expertise in PNI. Mr Hodge said he had personally observed Ms Just's methods and spoke highly of her professionalism and her reputation. Both Mr Hodge and Dr Welberry testified to the improvement in the respondent's condition after treatment by Ms Just. 6 In a letter dated 11 July 2003 to the solicitors for Mrs Rope, Dr Knox acknowledged that he was not aware of the full details of Ms Just's treatment techniques but focused on Mrs Rope's chronic pain and the benefit that she perceived herself to have received from Ms Just. Dr Knox concluded: 'In light of Mrs Rope's long help from, and dependence on, Ms Just, I believe that it would likely destabilise Mrs Rope's health, and worsen her experience of pain, were her contact with Ms Just to be cut off. I understand that a single annual visit to Ms Just allows Mrs Rope to maintain equilibrium in the management of her chronic pain, with the assistance of Mr Hodge's more regular input. For Mrs Rope to be deprived of periodic contact with Ms Just will likely result in a deterioration in her health, further suffering, and the likely need for even more expensive treatment assistance.' 7 In his report dated 27 May 2003 Dr Le Leu, who saw Mrs Rope on several occasions both before and after her retirement, said: 'One thing that has been very helpful for her has been her consecutive sessions in 1999 and 2002 with Ms Ann Just who works in the field of [PNI]. … I have worked with Ms Just and know her to be a psychologist of outstanding abilities and with superb patient rapport. I have read a couple of papers by her and her colleagues. I know, from my experience with her, that she gets results. I feel it is very beneficial for Ms Rope to see Ms Just once a year and for Ms Rope to know this is available is likely to be very therapeutic. … Mrs Rope has a complex pain condition for which Ms Just's therapy can be helpful. A wide range of other therapeutic approaches has been tried without much success. Mrs Rope does respond well to Ms Just's therapy. In addition to her complex pain problem she has: · a range of symptoms similar to those found in a posttraumatic stress disorder associated with her experiences from dealing with Comcare: she impresses as severely traumatised by these events, has intrusive thoughts about them and most of her life is spent ruminating about them. · a chronic grief and anger condition arising from these events. While I realise that Mrs Rope's travelling to Townsville to see Ms Just is a significant investment, I think it is cheaper than more continual treatment with a less effective practitioner. Then there is the problem of another psychologist building up the same degree of rapport with Mrs Rope, and going over all the old ground, before further treatment. In a person as fragile as Mrs Rope, this is counterproductive. In addition, I know of nobody in Canberra or within a reasonable distance of Canberra who is using the [PNI] approach. In saying this, though, I realise that Mr Brian Hodge has been providing very useful treatment to her which complements the treatment from Ms Just and is available locally. Hence I strongly support Mrs Rope consulting Ms Just on a yearly basis for five consecutive sessions each year.' 8 Dr Saboisky who saw Mrs Rope for 'an extended psychiatric medico-legal assessment' on 29 May 2003, expressed a very different opinion. While he admitted to having only 'a passing acquaintance' with PNI he expressed the opinion that Ms Just's treatment did not differ in any substantial way from the treatment that could be provided by Mr Hodge. He stated that although Mrs Rope might experience a temporary improvement from 'having made contact with her long-term therapist', he did not believe there would be any long-term benefit from further treatment by Ms Just. In his opinion 'good psychological counselling will provide equally beneficial treatment.' The Tribunal's decision 9 The Tribunal stated that the issues for its determination were whether: '(a) [PNI] counselling provided by Ms Anne Just constitutes medical treatment that it was reasonable for [Mrs Rope] to obtain in the circumstances; and (b) [Mrs Rope] reasonably incurred expenditure travelling to Townsville to obtain PNI counselling.' 10 Much of the Tribunal's reasoning is devoted to the question whether PNI treatment is medical treatment within the meaning of the SRC Act. The Tribunal found that the PNI treatment provided by Ms Just fell within the definition of 'medical treatment' in s 4 of the SRC Act and there is no appeal from the Tribunal's finding on this point. 11 The Tribunal rejected the applicant's argument that PNI treatment was without scientific merit and could not be clearly distinguished from the treatment provided by Mr Hodge. In coming to this conclusion the Tribunal accepted the evidence of Mr Hodge, Dr Welberry and Dr Le Leu and (impliedly) rejected the more negative aspects of Dr Saboisky's opinion. The Tribunal also noted that the applicant had failed to substantiate its assertion that equivalent treatment to that provided by Ms Just was available in Canberra. 12 The Tribunal set aside the decisions under review and in substitution decided that it was reasonable for Mrs Rope to obtain PNI treatment and to be reimbursed the cost of travelling to obtain occasional PNI treatment in Townsville. It also held that she was entitled to costs 'as agreed or taxed in accordance with the General Practice Direction'. This application 13 The applicant appeals from the decision of the Tribunal set out in [12] above. In argument it pressed only its objection to the decision that it is reasonable for Mrs Rope to obtain occasional PNI treatment from Ms Just in Townsville. While no specific objection was made to the Tribunal's decision that Mrs Rope be reimbursed the cost of travelling to Townsville, the applicant submitted, obviously correctly, that the order as to travel costs must be set aside if its challenge to the reasonability of Mrs Rope obtaining the PNI treatment, is successful. 14 The applicant relies on s 16(1) of the SRC Act which provides: 'Where an employee suffers an injury, 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.' 15 The applicant submits that in deciding if the requirements of s 16(1) had been met the Tribunal was obliged to consider all the circumstances, not merely whether PNI treatment is of value to Mrs Rope. This involves weighing the benefit to be obtained from PNI against the the cost of obtaining the treatment (including the cost of travel to and from Townsville) as well as against the cost and potential benefit of other forms of treatment available to Mrs Rope. According to the applicant, the Tribunal concentrated only on the therapeutic character of PNI treatment and the non-availability of the same treatment in the Canberra region. In particular the Tribunal did not consider the costs 'associated with the treatment' and weigh those costs against its benefits. This point was elaborated by senior counsel for the applicant, Mr Hanks QC, who submitted that in considering whether, under s 16(1), medical treatment was ' reasonable for the employee to obtain' one must consider not just the nature of the medical treatment but also whether the circumstances of the case render the 'obtaining' of that treatment objectively reasonable. The Tribunal, he submitted, should have considered questions of distance and accessibility and the relative merits of the treatment compared with treatment that might be more accessible. In failing to do so the Tribunal failed to consider all the circumstances as required under s 16(1). 16 There is a surprising dearth of judicial authority on the interpretation of s 16(1) and the question of whether it is reasonable for a claimant to obtain certain medical treatment. Partly this is because the question of reasonability is often subsumed in consideration of whether the treatment in issue is 'medical treatment'; Bashar v Comcare Australia (2002) 69 ALD 784. There are numerous Tribunal decisions that deal with the point but those decisions are so specific to the circumstances of the particular claimant that they are of little assistance. This is, in part, explained by Gray J in Re Jorgensen and Commonwealth of Australia (1991) 23 ALD 321. His Honour, sitting as a presidential member of the Administrative Appeals Tribunal noted, at 325, that: 'The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation.' This comment must be understood in the context with which his Honour was dealing. The treatment under consideration was in vitro fertilisation following the removal of the applicant's Fallopian tubes following damage that constituted a compensable injury. It was contended that, in determining if that treatment was reasonable, factors such as the applicant's age, economic circumstances, marital stability and so on, had to be taken into account. While his Honour limited the subjective factors that might be taken into account, the subjectivity of the circumstances that must be considered means that previous cases will, necessarily, be of limited relevance. 17 I accept, however, that the reference in s 16(1) to treatment being 'reasonable to obtain in the circumstances' is a clear indication that, in this case, the Tribunal was required to engage in a costs/benefit analysis in relation to PNI treatment. The Tribunal needed, among other things, to weigh the benefit of PNI treatment against the cost of obtaining it (given that the treatment was available only in Townsville), taking into account any other treatment available to Mrs Rope. I am not, however, convinced that the Tribunal neglected to do this. 18 It would appear that much of the argument before the Tribunal was directed to the question whether PNI was 'medical treatment' within the meaning of the SRC Act and whether it provided any benefit different from or additional to the benefit that Mrs Rope was receiving from Dr Welberry, Mr Hodge and Dr Le Leu. Similarly, when the Tribunal turned to consider the reasonableness of the treatment, the therapeutic value of PNI was again in issue. It is not surprising that, in responding to those submissions, the Tribunal dwelt on the therapeutic aspect of PNI. The distance factor was squarely put in issue, however, by Comcare's submission to the Tribunal that the PNI treatment 'could not be clearly distinguished from psychological counselling provided by Mr Hodge, or from treatment that is available from other clinical psychologists on [sic] the Canberra region.' There is no point to this submission other than to add the distance factor (and associated cost) to the elements to be considered in determining whether it was reasonable for Mrs Rope to obtain PNI treatment from Ms Just in Townsville. Lack of distinction between the treatments offered by Ms Just and Mr Hodge would be irrelevant if both were available in Canberra. The Tribunal clearly considered this issue and rejected the applicant's submissions on this point. 19 The predominant medical opinion before the Tribunal was that Ms Just's PNI treatment has therapeutic value for Mrs Rope (see [4]-[8] above) in that it assists Mrs Rope in managing the pain of her injury and improves her quality of life. The Tribunal found that Mr Hodge, Dr Le Leu and Dr Welberry recommended that Mrs Rope have occasional treatment from Ms Just. The opinion of Dr Knox was to the same effect. In the light of these findings the only additional factor to be considered was whether there was any equivalent treatment available in Canberra. The Tribunal stated that Comcare had 'failed to substantiate its assertion that equivalent treatment to that provided to Ms Just is available in Canberra'. I am satisfied that the Tribunal did consider all the circumstances that, under s 16(1), it was required to consider in determining if it was reasonable for Mrs Rope to obtain PNI treatment. The findings that the Tribunal made were open to it on the evidence. It is not for this Court to interfere with those findings. 20 For the above reasons the application must be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 7 May 2004 Counsel for the Applicants: Mr P Hanks QC Solicitor for the Applicants: Australian Government Solicitor Counsel for the Respondent: Ms J Godtschalk Solicitor for the Respondent: Pamela Coward & Associates Date of Hearing: 6 February 2004 Date of Judgment: 7 May 2004