Pembshaw and Comcare [2000] AATA 52 (28 January 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 52

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A99/68

General Administrative DIVISION )

Re SHEILA PEMBSHAW

Applicant

And DEPARTMENT OF DEFENCE FOR COMCARE

Respondent

DECISION

Tribunal Mr Peter Bayne, Senior Member

Date 28 January 2000

Place Canberra

Decision The Tribunal sets aside the decision under review and in its stead decides (i) that the applicant reasonably incurred expenditure in making a necessary journey to the Clear Mountain Health & Conference Centre for the purposes of obtaining medical treatment, and in remaining, for the purpose of obtaining that medical treatment, at that Centre; and (ii) that the compensation to which the applicant is entitled is to be calculated in accordance with section 16(7).

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CATCHWORDS

COMPENSATION - employee suffered injuries in compensable circumstances - liability to pay cost of medical treatment accepted - whether employee reasonably incurred expenditure in making a journey for the purpose of obtaining that treatment - whether employee reasonably incurred expenditure in remaining at the place to which that journey had been made

Legislation

Safety Rehabilitation and Compensation Act 1988 s 16

Authorities

Comcare v Burton [1998] 1144 FCA

Commonwealth v Ford (1986) 65 ALR 323

Lees v Comcare [1999] FCA 753

Telstra Corporation Ltd v Barrow (1994) 19 AAR 523

Re Falzon and Comcare AAT 21 February 1997, Decision No 11628

REASONS FOR DECISION

Mr Peter Bayne, Senior Member

1. This is an application to review a decision of an Independent Review Officer ("the IRO") of the respondent made on 30 October 1998 (T 56).

2. The applicant was born on 3 September 1959. She enlisted in the Australian Regular Army on 3 September 1979, and was discharged as medically unfit on 21 July 1986.

3. It is accepted that the applicant has injuries compensable under the Safety Rehabilitation and Compensation Act 1988 ("the Act", or "the SRC Act"); see at T 2, page 006.

4. At the hearing, the Tribunal had before it the documents ("T documents") lodged pursuant to section 37 of the AAT Act 1975, and a number of documentary exhibits. It should be noted that these Reasons were written without the benefit of access to a transcript of the hearing.

5. The general background to this matter is stated in the section 37 statement: "The applicant has been referred to a variety of pain clinics (see T 3 and T 9) for management of her condition. On 21 September 1998 she was referred by her general practitioner, Dr Goonerage, to the Clear Mountain Health [& Conference Centre] in Queensland (T 44). The applicant attended the Lodge between 26 September 1998 and 6 October 1998. The applicant has claimed reimbursement from Defence for her stay ... including travel costs from Canberra to Brisbane, accommodation costs .. and for a variety of treatments ...". There is no issue as to the claims in respect of the "variety of treatments". The respondent met most of these claims without demur, and others are no longer in issue. The travel and accommodation costs are in issue, and, I understand, amount to $3388.00.

6. On a claim under section 54 of the Act being made by the applicant, the respondent made determinations under section 14 that it was liable to pay compensation to the applicant. It is not necessary for an applicant to make a new claim under section 54 in respect of a particular head of compensation; see Lees v Comcare [1999] FCA 753, at paras 30-31.

7. In this matter, the informal request that has generated the reviewable decision (T 56) was made by the applicant by letter to the respondent of 11 October 1998 (T 46). The primary determination was made on 30 October 1998, and the document of that date at T 49 is the notification to the applicant of that decision. Notification of the terms of the decision is required by section 61(1) of the Act.

8. The primary determination accepted that the respondent was liable to pay compensation in respect of various treatments described as "medical treatment" at Clear Mountain Health & Conference Centre ("CMHCC"). These were described as:

* cocktail injections (vitamins);

* ARX, Inkelphalin;

* "Pack - Health";

* Bowen treatment;

* vitamins;

* therapeutic massage; and

* pethadine.

9. From the T 45 at page 75 it may be gathered that the "Pack - Health" comprised naturopathic and iridology consultations; listen electrodermal screening; homeopathic and rayid consultation; and haemaview analysis and naturopath. It was described as a package to make the point that if a patient received all these treatments, he or she paid $45 less than the total cost of the cost of the treatments taken individually.

10. From the T 45 at page 72, the primary decision-maker could have gathered that the injections were of "vitamins B & C & minerals". Apart from this very limited information about this treatment, the decision-maker had no information as to the nature of these various treatments. No more than this information was available to the IRO.

11. Nevertheless, it must be stressed that both the primary decision-maker and the IRO of the respondent have accepted without demur that these treatments were, in terms of section 16(1), "medical treatment[s] obtained in relation to the injur[ies of the applicant] (being treatment that it was reasonable for the employee to obtain in relation to [her injuries])". There is also no question that, in terms of section 16(6)(a), this is a case where "compensation in respect of the cost of medical treatment is payable".

12. It is accepted that a significant role of the Tribunal lies in its providing guidance to decision-makers, (see, in particular, Re Falzon and Comcare AAT 21 February 1997, Decision No 11628, per Dwyer SM, at para 2). In this light, I am astounded that the decision-makers did not explore whether these treatments were "medical treatment" in terms of the definition of that concept in section 4(1) of the Act.

13. It must, for example, be assumed that decision-makers within the respondent consider that "iridology" is "medical treatment". But, is it? I am aware that it is widely promoted as a treatment and that there are people who hold themselves out as practitioners. No doubt many subject themselves to examination. But, as far as I am aware, it is not a treatment recognised in the medical profession as having any efficacy in the diagnosis or treatment of illness, at least in the way that "iridologists" claim; (see the entry on iridology in The Sceptics Dictionary, at http://skepdic.com/iridol.html, and, at http://www.quackwatch.com/01QuackeryRelatedTopics/iridology.html, S Barrett, "Iridology",) Nor am I aware that iridology would it be accepted in the medical profession as falling within the definition of "therapeutic treatment" in section 4(1) of the Act. (One critical study of which I am aware is D M Cockburn, "A study of the validity of iris diagnosis" (1981) 64 Australian Journal of Optometry 154).

14. The standpoint just taken may not be the end of the analysis. To employ in this context the words of Dr Speldewinde when he spoke of the benefits of "Bowen therapy" (whatever that is), iridology may be a modality that is "psycho-social" in nature, and on that account be beneficial (see Exhibit A4). I have no idea what is meant by the term "psycho-social", but it may be capable of explanation in a way that could justify a view that iridology is "medical treatment". But that surely is what is required - some explanation of what these modalities are, and how they could amount to "medical treatment".

15. But what the decision-maker did was to accept liability to compensate the applicant for iridology, Bowen therapy, and various other "alternative" "treatments". Then, on the basis of a discussion of the applicant's case with the respondent's Rehabilitation Coordinator, the decision-maker decided that "the medical treatment you obtained at Clear Mountain Health & Conference Centre is available in Canberra. Therefore, I am not satisfied that it was reasonable for you to travel to Queensland ..." (T 49 at 81).

16. This was the sum total of the "reasons" given by the decision-maker. I doubt very much that the decision-maker complied with the requirement in section 61(1)(b) of the Act to give "reasons for the determination". In this respect, it must be borne in mind that this obligation is, in formal terms, no less onerous than the obligation to give reasons imposed by laws such as section 13 of the Administrative Decisions Judicial Review Act 197(Commonwealth).

17. Much has been said about the virtues of reasoned decision-making. One is the discipline it imposes on decision-makers to think through what they are doing and why. If, in this matter, the decision-makers had turned their minds more carefully to why they thought that the treatments were available in Canberra, they might have focussed on the nature of those treatments and, in turn, on whether they were "medical treatment". They may also have provided some evidence that these treatments were available in Canberra.

18. They might also have considered the ramifications of their decisions that these treatments did amount to "medical treatment". This applicant may now consider that she is entitled to be compensated for iridology and the various other alternative treatments, and, given that these reasons are made public, so might many others entitled to compensation under the Act. In this light, I must make clear that I cannot determine in this matter whether these treatments amount to "medical treatment" because I lack jurisdiction to do so. Furthermore, I need to say that if this issue arises in the Tribunal, there would be a number of questions to be addressed before it could be concluded that such treatments amount to "medical treatment".

19. As noted, the primary determination was made on 30 October 1998 (T 49). On 5 November 1998, the applicant sought, under section 62(2) of the Act, a reconsideration of this decision (T 51). On 14 January 1999, acting under section 62(5), an IRO of the respondent made a decision affirming the primary decision. This determination was notified to the applicant under section 63 by letter of 14 January 1999 (T 56). This is clearly a "reviewable decision", and this Tribunal had jurisdiction to undertake that review. The applicant sought that review on 9 March 1999.

20. As will appear below, I consider that on this review I am bound by the decision of the Full Court of the Federal Court in Lees v Comcare [1999] FCA 753 to find that I have jurisdiction to address only those issues that were considered by the IRO.

21. But the decision in Lees was handed down on 7 June 1999, and it is apparent that the legal advisers to the parties in this matter did not until much later perceive its ramifications for how this matter was to be conducted. The Statement of Facts and Contentions (SFC) filed by the applicant raised the issue of whether the residential course and the treatments received by the applicant were medical treatment. The SFC filed by the respondent saw much more at issue. Contention 1 amounted, in effect, to an argument that the decision-makers had overlooked a number of issues involved in accepting that the treatments were medical treatment. If the Tribunal had addressed those issues, the result might well have been that the applicant would have had to repay the compensation awarded to her by the IRO and the primary decision-maker. Without any prior notice to the Tribunal at least, the respondent announced in opening that Contention 1 was abandoned.

22. But Contentions 2, 3 and 4 were kept on foot, albeit that some of the specific contentions were to the same effect as those in Contention 1. After hearing argument, I ruled that I had jurisdiction to address only these contentions:

(i) "2. Massage treatment obtained by the applicant at the Lodge (sic) (Kahuna, swedish and therapeutic massage and Bowen treatment) may be reasonable medical treatment for the applicant's compensable conditions but are readily available in Canberra"; and

(ii) "4. The accommodation and travel costs incurred by the applicant for her attendance at the Lodge were not reasonable in the circumstances that: ...

(c) In any event, all the treatment modalities obtained by the applicant at the Lodge were readily available in Canberra."

23. The transcript will indicate the reasons I gave at the hearing. What follows is a more detailed analysis.

24. In Lees v Comcare [1999] FCA 753 (Full Court, Federal Court), Comcare had accepted liability in respect of a work-related injury suffered by the appellant Lees. Subsequently, it determined that it was not liable, under section 16 of the Act, to pay the appellant the costs of taxi-fares she incurred in visiting the rooms of a treating doctor. More particularly, these were not costs of "medical treatment obtained in relation to the injury (being treatment that it was treasonable for the employee to obtain in the circumstances)". The appellant sought reconsideration, and an IRO of Comcare affirmed the primary decision.

25. The Full Court observed that Part VI of the Act "establishes a three-tiered decision-making process: the original decision or determination to be made by an authorised person within Comcare or a licensed authority, a reconsidered determination to be made within the same authority as the original decision - but ordinarily by a fresh decision-maker, and a decision of the AAT reviewing the reconsidered determination" (para 32).

26. The primary decision-making stage is initiated by a claim made by a person seeking compensation under the Act. Compensation is not payable to a person unless a claim is made or on behalf of the person under s 54 (s 54(1)). Other provisions in s 54 govern the mode of making a claim. In Lees, the Court said that "the right to receive compensation under the Act [is] dependant upon the making of a claim" (para 29). But it also said:

30. It is clear that Part V of the Act envisages first, the giving of notice of an injury and separately, and in most cases it may be assumed subsequently, the making of a claim for compensation in accordance with an approved form. The claim for compensation envisaged by s 54 is not, it would seem, necessarily a claim for compensation under a particular section, or particular sections, of the Act. The form approved by Comcare as required by s 54(2)(a) reflects the generic nature of a claim under the section. It is headed "Claim for Rehabilitation and Compensation". It requires the provision of detailed information concerning the injury and time taken off work because of the injury, but it does not provide for the provision of information of the kind that would be necessary before a determination could be made under, for example, ss 16, 17, 18, 20, 21, 24 and 25 of the Act.

31. The claim, and the claim form, envisaged by s 54 of the Act reflects the practical reality that a claim for compensation is likely to be made relatively soon after the suffering of an injury, particularly if incapacity for work or significant medical expenses result from the injury. At the time that this initial claim is made it may be quite impossible for the employee to provide details of, for example, the fact or extent of any permanent impairment. For the reasons expressed below, the determination which is made on a claim, as required by s 54 of the Act, will ordinarily be a determination under s 14 of the Act.

27. It should be added that the duty of Comcare to make a determination upon a claim is found in section 69(a): "Subject to this Act, Comcare has the following functions, in addition to its other functions under this Act : (a) to make determinations accurately and quickly in relation to claims and requests made to Comcare under this Act: ...". It should also be noted that section 72(a) provides that: "In performing the function referred to in paragraph 69(a), Comcare: (a) shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities: ...".

28. In practice, Comcare has prepared a form for use by those entitled to benefits to make a claim under section 24 of the Act. It should, however, be noted that a determination under section 24 is not in a different position to a request made by an employee for compensation under any of the other heads of liability of Comcare. Once Comcare has made a determination under section 14 in favour of the employee, he or she may make a request for a determination under section 24 without needing to make a formal claim under section 54. The Full Court made this plainer still in this passage at para 48 of its judgment:

The determination under s 14 established, amongst other things, that Comcare would be liable to pay compensation to Ms Lees under s 24 of the Act if the injury resulted in permanent impairment. We interpolate that we do not read s 24(1) of the Act as a second source of liability to pay compensation in respect of an injury to an employee resulting in impairment. We see that liability as being created by s 14 of the Act. Section 24 we understand as being intended to define the nature and extent of the liability to pay compensation in respect of an injury which results in permanent impairment.

29. Thus, in most cases, an employee would make a formal claim under section 54 in order only to obtain a determination by Comcare of its liability under section 14 of the Act. At that time, if it accepted liability, Comcare might also determine that it was (or was not) liable to pay compensation in respect of particular heads of liability, such as for medical expenses under section 16, or for permanent impairment under section 24. (There are some cases where liability may arise independently of a prior determination under section 14; see sections 15 and 16.)

30. The Court observed (para 27) that section 14

is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned. Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment. However, the liability in Comcare created by s 14 is qualified in two ways. First, such liability is a liability "[s]ubject to" Part II of the Act. That is, it is a liability limited in its extent by other provisions of Part II of the Act (see, for example, s 17(2)). Secondly, the liability is a liability to pay compensation "in accordance with" the Act. That is, it is a liability to pay the compensation for which the statute provides, as required by the Act (see, for example, ss 17(3)(4) and (5), 19, 20, 24 and 25).

31. The Court also observed that:

34. The definition of "determination" [in section 60] makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein. In particular, the definition reveals that a determination may be made under s 14 of the Act. A determination under s 14 cannot amount to more than a determination that Comcare "is liable to pay compensation in accordance with this Act" in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare's liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.

35. This is not to say that a determination under s 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an "employee" at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.

32. In most cases, an employee who has obtained a determination under section 14 in her or his favour would then, from time to time, make what might be better described as requests for payment of compensation in respect of particular heads of liability. Requests for payment under section 16 are quite frequent, and are made as an employee incurs some medical expense.

33. Where it makes a determination, whether in response to a formal claim under section 54, or on an informal request, Comcare is, by section 61, obliged, as soon as practicable after making a determination, to serve on the claimant a notice in writing setting out the terms of the determination and the reasons for it. It is apparent from the reasoning in Lees that this section 61 notice is a critical link to the second stage of decision-making - being a reconsideration of the primary decision by a person appointed in that respect under section 62. Such a person is commonly referred to as an "independent review officer" (IRO).

34. Section 62(2) authorises certain persons, including a "claimant", to request Comcare to reconsider a determination made by a primary decision-maker. Upon such a request, the reconsideration is undertaken by an authorised person who was not involved in the making of the determination. Section 62(5) provides for the person undertaking the reconsideration to affirm, revoke or vary the determination in such a manner as the person thinks fit.

35. The third potential stage of decision-making is review by this Tribunal of a "reviewable decision", which means, in terms of section 60, "a decision made under subsection 38(4) or section 62". The latter refers to a determination by an IRO. Under section 64, a claimant may make application to the Tribunal for review of such a determination.

36. Section 64 of the Act needs to be read in conjunction with some provisions of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). Section 25(1) of the AAT Act provides, in its essentials, that "[a]n enactment may provide that applications may be made to the Tribunal - (a) for review of decisions made in the exercise of powers conferred by that enactment: ...". Section 25(3)(a) stipulates that the enactment "shall specify the person or persons to whose decisions the provision [under section 25(1)] applies"; may be expressed to apply to all or only a class of the decisions made by the person or persons; and "may specify conditions subject to which applications may be made". It is of course axiomatic that a later enactment might make some provision contrary to what section 24 stipulates must or might occur, but in practice the Commonwealth legislature has followed section 25 when it confers jurisdiction on the Tribunal. As the Court noted in Lees (at para 11), "[s]ection 64 [of the SRC Act] ... is an enactment of the kind envisaged by s 25 of the AAT Act. It authorises applications to be made to the AAT for review of a limited class only of decisions made under the Act".

37. Section 43 the AAT Act states a general principle to govern the scope of review by the Tribunal of a decision within its jurisdiction to review. The opening words state: "For the purposes of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision ...". Again, of course, a later enactment might make some provision contrary to this general principle.

38. Against this background of the provisions of the AAT Act and of the SRC Act, the Court in Lees held (at para 39):

In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions - that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination (s 61(1)). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers "[f]or the purpose of reviewing" the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.

39. Thus, to assess the authority of the Tribunal on a review of a determination of an IRO, one must assess the "the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act". In other words, the Tribunal has the same powers and discretions as were exercisable by the IRO.

40. Taking this view of the matter does, however, leave open a point that is of significance in this review before me concerning the applicant, Ms Pembshaw. According to its terms, the determination of the primary decision-maker addressed two issues of fact and law. One, in respect of which it resolved in favour of the applicant, was the liability of the respondent to meet certain costs of the applicant as costs of medical treatment under section 16(1). The second, in respect of which it resolved against the applicant, was the liability of the respondent to meet certain costs of the applicant as they might have been assessed under section 16(6).

41. The point of some difficulty is whether the fact that the primary determination addressed issues under section 16(1) would have enabled the IRO to address those issues, and, it would follow, will now enable this Tribunal to address those issues. In the situation here, and given that the applicant did not seek to have the IRO determine an issue that had not been addressed by the primary decision-make, the key to answering this issue lies in looking at what issues of fact and law the applicant, as claimant, requested the IRO to address when she sought reconsideration. It is only those issues that may be addressed by the IRO, and subsequently, by this Tribunal.

42. I should add two points by way of explanation of this approach. The first is that a request for reconsideration would be ineffectual, in terms of conferring jurisdiction on the IRO, to the extent that the request sought review of issues of fact and law that were not addressed by the primary decision-maker. The second is that, were the IRO to decline or fail to address an issue that was properly raised for reconsideration by the request, the Tribunal would have jurisdiction to deal with issue on the basis that the IRO's refusal or failure constituted a "decision" for the purposes of the Administrative Appeals Tribunal Act 1975 (see section 3(3)(a)), and thus of the SRC Act (see the word "decision" in section 60); see Comcare v Burton [1998] 1144 FCA, per Finn J.

43. Turning to this review concerning Ms Pembshaw, the reasons for the request for reconsideration (T 51), provided under section 62(3), were written by the applicant. They do not indicate that she sought review of only the second aspect of the primary determination. It would, however, defy common sense to read this request as a request that the IRO review the first aspect of the primary decision, and the IRO did not read it this way. Many reconsideration requests are written by applicants, and it is by no means an easy matter in some cases to discern just what it is that the applicant seeks to have reconsidered under section 62. These requests should be read in a manner that fulfils the obligation stated in section 72(a) of the Act; that is, guided by equity, good conscience and the substantial merits of the case, without regard to technicalities.

44. Thus, in effect, the applicant sought reconsideration of the second aspect of the primary decision. (This is not so in respect of the weight loss tape, which was claimed as a cost of medical treatment, but that claim has dropped out of the picture.) This Tribunal may then review only the second aspect of the primary decision.

45. This approach is, I think, consistent with the approach of the Court in Lees, although I accept that the matter is not free of doubt. In the matter reported as Lees v Comcare, the Full Court also heard, as an appeal from this Tribunal, a matter intituled Comcare v Mathews and Handley and O'Donohue. In this latter matter, a primary decision-maker had, under section 14 of the SRC Act, rejected a claim by O'Donohue on the basis that he had not suffered an injury within the meaning of the Act. The IRO was satisfied that this was the correct decision to be made. O'Donohue sought to have the Tribunal determine not only whether he had suffered an injury, but also whether he was entitled to benefits under section 24 of the Act.

46. The Court held that the Tribunal did not have jurisdiction to deal with issues under section 24. It said:

54. The only application which s 64 of the Act entitled Mr O'Donohue to make to the AAT was an application for review of the reviewable decision made by the Independent Review Officer. The terms of that decision are revealed by the notice in writing served on Mr O'Donohue. No suggestion has been made that the notice in writing misrepresents the actual determination made by the Independent Review Officer.

55. For the AAT to reach a decision as to Mr O'Donohue's entitlement, if any, to receive compensation under s 24 of the Act in respect of a permanent impairment it would have to become involved in a process extending beyond review of the reviewable decision made under s 62 of the Act. It would require the AAT to consider issues not determined at either the first or the second tier of the decision-making process established by the Act.

56. In view of the structured decision-making process established by the Act, and the plain language of s 64 of the Act, the powers of the AAT under s 64 do not, in our view, on an application to review a decision under s 14 of the Act, extend to allowing it to reach a decision as to Mr O'Donohue's entitlement, if any, to receive compensation under s 24 of the Act.

47. In terms of resolving the point of difficulty noted above, the emphasis given by the Court in para 56 of its judgment to resolving these questions of jurisdiction in the light of the "structured decision-making process" under the Act supports the approach I take here. It is also supported by what the Court said in para 54 of its judgment. Here, the terms of the IRO decision under review deal only with the second aspect of the primary decision. But some doubt as to what the Full Court intended as the yardstick for admeasuring the jurisdiction of the Tribunal in these matters is raised by the comment in the final sentence of para 55 of the Court's judgement. That comment might be read so as to suggest that the Tribunal had jurisdiction over any issue determined at the primary decision-making stage, including an issue resolved in favour of the applicant.

48. I do not read this sentence in this way. I see it as a comment on the factual situation in the appeal in O'Donohue, and as a way of giving emphasis to the common sense of the position arrived at by the Court in that matter. To read it more broadly would be inconsistent with the analysis of the Court of the structured decision-making process it identified in the SRC Act.

49. Justice Finn's judgment in Comcare v Burton [1998] 1144 FCA does not deal with the particular point of difficulty that has arisen here. While again I cannot be sure as to how his Honour would deal with this point, there are statements in the judgment that suggest that the review jurisdiction of the Tribunal is confined to the questions that were addressed by the reconsideration decision-maker. His Honour said, for example, that "[i]n exercising its review function the Tribunal was called upon to "address the same question" as was before the reconsideration decision-maker and not an entirely distinct one ...".

50. On the basis that the Tribunal had jurisdiction to review only the second aspect of the primary decision, I ruled that it was only Contentions 2, and 4(c), of the respondent's Contentions that dealt with the second aspect. I should add this. The SFC filed by the respondent envisaged that the Tribunal might, in effect, reverse the first aspect of the primary decision. I have concluded that the Tribunal does not have jurisdiction to do so. What the respondent might have done, in order to achieve the same result, was to make an own motion reconsideration of the primary decision under section 62(1)(a). In this way, the applicant would have had more timely notice of the respondent's intentions in this respect. If the applicant had then sought review of this decision, there would have been no doubt that the Tribunal had jurisdiction to review the matter.

51. Before passing to the merits of this matter, it should be noted that the decision in Lees does not qualify a fundamental aspect of the Tribunal's function often summed up as the Drake principle. In Commonwealth v Ford (1986) 65 ALR 323, a matter that arose under the Compensation (Commonwealth Government Employees) Act 1971, Wilcox J said (at 328:

The tribunal was bound to consider the facts as they were proved in evidence before the tribunal, making the decision which upon that material and at that time was the correct or preferable administrative decision. The tribunal was not confined to either to the material which was before the Commissioner, as primary decision-maker, or the events which had occurred up to that time; see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589; Nevisitic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 at 640-1. If, upon consideration of the evidence before the tribunal, it appeared that Ms Ford was entitled to benefits over a longer period - including a period after the date of the Commissioner's determination - that that covered by the determination under review, it was the duty of the tribunal to so find and to award compensation accordingly.

52. I turn now to the merits of this matter in the light of my ruling the Tribunal had jurisdiction to review only the second aspect of the primary decision, as reflected in Contentions 2, and 4(c) as stated by the respondent; see para 22 above.

53. It is accepted that the applicant has injuries compensable under the Safety Rehabilitation and Compensation Act 1988 ("the Act", or "the SRC Act"); see at T 2, page 006. For the purposes of this review, it must also be accepted that the various treatments (see para 8 above) in respect of which the applicant has been reimbursed are, in terms of in terms of section 16(1), "medical treatment[s] obtained in relation to the injur[ies of the applicant] (being treatment that it was reasonable for the employee to obtain in relation to [her injuries]".

54. Turning to section 16(6) of the Act, there is also no question that in terms of section 16(6)(a), this is a case where "compensation in respect of the cost of medical treatment is payable". Thus, the issue is whether I should be satisfied that that, in terms of section 16(6)(b), the applicant reasonably incurred expenditure in "(i) making a necessary journey [to the CMHCC] for the purposes of obtaining that medical treatment", and "(ii) remaining, for the purpose of obtaining that medical treatment, at [CMHCC]".

55. I start with the fact that on 21 September, the applicant's GP, Dr Goonerage, referred her for treatment to Dr Ryan at the CMHCC (T 44). Dr Goonerage noted that the applicant suffered from chronic pain, and believed that she needed "alternative methods of pain management and a review of her coping strategies". He said: "I recommend that she attends your course in the hope that she will be less dependent on narcotics and doctors for pain management".

56. In a letter to the IRO (T 54), Dr Goonerage gave more particular reasons for his referral, and after a reference in general terms to the nature of the program at CMHCC, he said that "[t]o the best of my knowledge such in house treatment is unavailable in Canberra".

57. It is clear that the point of this referral was to introduce the applicant to a number of treatments that Dr Goonerage hoped would lessen the applicant's reliance on drugs. It is apparent that he considered that an 'in house" administration of these treatments was required.

58. But the IRO, like the primary decision-maker, ignored this aspect of the referral. The IRO simply took each of the various kinds of treatment and asserted - without any indication of evidence in support - that each of them was "readily available" in Canberra (T 56). Then it was said: "The choice to obtain this treatment in Queensland rather than locally in Canberra was your own, therefore you remain responsible for the cost of travel and accommodation". None of this reasoning was related to any provision of the Act, but it may be presumed that the IRO had in mind the provisions of section 16(6).

59. The appropriate way to deal with the issues involved is to come to terms with the fact that Dr Goonerage recommended an 'in house' administration of the treatments administered to the applicant at CMHCC. The respondent has not at any stage offered a challenge to the suitability of this recommendation. There is, in reports of Dr Chandran (see Exhibits A2 and A3), some evidence in support of Dr Goonerage. (In any event, I am not sure that it matters whether or not the recommendation was suitable or not. The fact is that this is what Dr Goonerage recommended, and the applicant acted upon it. This may be the only critical fact so far as concerns the application of section 16(6)).

60. If it be relevant, there is also some evidence to support a finding that there was no such "in house" program available in Canberra. The applicant gave evidence to this effect, and Dr Chandran lends his support to this view (see Exhibit A3).

61. Thus, the applicant was referred by her GP to attend the residential course at CMHCC. She acted in accord with that recommendation. She was not aware of, and had no reason to be aware of, any other location at which she could have obtained the treatments recommended for her. On this basis, and having regard to the factors stated in section 16(8) of the Act, the applicant reasonably incurred expenditure in doing both of what is described in section 16(6)(b). In other words, she reasonably incurred expenditure in making a necessary journey to the CMHCC for the purposes of obtaining that medical treatment, and in remaining, for the purpose of obtaining that medical treatment, at CMHCC.

62. The amount to which the applicant is thus entitled must be calculated in accordance with section 16(7). I understand that the parties are in agreement that the relevant figure is $3388.00. They are at liberty to approach the Tribunal if this is not so.

63. The outcome would not be different if one were to take the standpoint of the IRO. The view that the various particular medical treatments obtained by the applicant were readily available in Canberra is not supportable.

64. Take the treatment described by the primary decision-maker as "cocktail injections (vitamins)". Without knowledge of the ingredients of the cocktail, and the protocol for its administration, how could one find that this treatment was available in Canberra? From Dr Ryan's letter at T 45, it is clear that he would have supplied this information to Dr Goonerage after the applicant had visited CMHCC. It cannot be assumed that he would have done so before her visit.

65. Take the treatment described by the primary decision-maker as "ARX, Inkelphalin". Although the respondent has accepted this as a suitable form of medical treatment, there is no evidence as to just what it is, and thus one could not find that this treatment was available in Canberra.

66. Take "Bowen Treatment". In her closing address, and without prior notice, counsel for the respondent handed up photocopies of advertisements from which it may be inferred that two businesses in Canberra provide some form of Bowen treatment. Counsel added her own evidence that these advertisements appear in the Canberra telephone directory. Even accepting this evidence, there is still no evidence as to just what is "Bowen Treatment". There may well be substantial variations in the way this process is administered. Without knowing what happened at CMHCC, there is no basis to infer that the applicant could have obtained this process in Canberra. (Some of the difficulties in getting to grips with these issues may be gathered from this description of "Bowen Technique" in Jack Raso, The Expanded Dictionary of Metaphysical Healthcare http://www.hcrc.org/diction/b.html: "Bowen Technique (Bowen therapeutic technique, Bowen Therapy): Form of bodywork and vibrational healing (see "vibrational medicine") originated by Australian engineer Tom Bowen (d. 1982) in the early 1950s, developed by Oswald Rentsch (an osteopath) and Elaine Rentsch (who holds a diploma in Bach flower therapy) in Australia, and introduced in the United States in 1990. Its theory posits chi ("universal life energy") and human "energy vortexes." ("Bowen System" and "Bowen Technique" may be synonymous.)

67. The "Pack-Health" comprised naturopathic and iridology consultations; listen electrodermal screening; homeopathic and rayid consultation; and haemaview analysis and naturopath. Some such services, or processes, (accepted by the respondent as medical treatment suitable for the applicant), may be available in Canberra. But without knowing in more detail what happened at CMHCC, there is no basis to infer that the applicant could have obtained this process in Canberra. The same may be said about the treatments listed in the primary decision as "vitamins", "therapeutic massage" and "pethadine".

68. Thus, even according to the standpoint of the IRO, I could not be satisfied that the applicant could have obtained the relevant treatments in Canberra. On the other hand, it is clear that she obtained them at CMHCC.

69. The appropriate decision is to set aside the decision under review and substitute a decision in two parts: (i) that the applicant reasonably incurred expenditure in making a necessary journey to the Clear Mountain Health & Conference Centre for the purposes of obtaining medical treatment, and in remaining, for the purpose of obtaining that medical treatment, at that Centre; and (ii) that the compensation to which the applicant is entitled is to be calculated in accordance with section 16(7).

70. I consider this an appropriate case to order that the Respondent pay the costs of the Applicant under s 67(8) of the Act, and having regard to the terms of the General Practice Direction. In this respect, I adhere to the practice of the Tribunal whereby it may publish a decision which addresses the issues of costs even though that issue not been raised at the hearing. That the Tribunal may do so is clear from what was said by Carr J in Telstra Corporation Ltd v Barrow (1994) 19 AAR 523 at 540:

I would like to stress that nothing which I have written here should be taken as criticism of what I understand to be the normal method whereby the Tribunal publishes its decisions including decisions involving costs orders. The interests of administrative efficiency and natural justice are doubtless both well served by such a procedure in the vast majority of cases. However, occasionally a case will arise where the question of costs may fairly be a matter of contention upon which the parties would wish to be heard and are entitled to be heard. In my opinion, this was such a case. I have not overlooked the fact that counsel can always, at the conclusion of a hearing, ask for an opportunity to be heard on the question of costs. I accept that from a tactical point of view this may not always be a course which counsel would wish to take.

71. Although Carr J observes that there may be circumstances in which the Tribunal will be obliged by natural justice to provide an opportunity to the parties to at least comment on a proposed order as to costs, I do not think that this is such a case.

I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Peter Bayne, Senior Member

Signed: .....................................................................................

Associate

Date/s of Hearing 11 and 12 November 1999

Date of Decision 28 January 2000

Counsel for the Applicant Mr Pilkington

Counsel for the Respondent Ms Court

Solicitor for the Applicant Pamela Coward and Associates

Solicitor for the Respondent Australian Government Solicitor