Sinclair and Comcare [2002] AATA 23 (17 January 2002)

Last Updated: 17 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 23

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/582

GENERAL ADMINISTRATIVE DIVISION )

Re CHRISTINE SINCLAIR

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms J Cowdroy

Date 17 January 2002

Place Brisbane

Decision The Tribunal sets aside the decision under review and in substitution decides that the applicant be paid compensation in the form of $50 for each physiotherapy treatment.

(Signed)

J Cowdroy

Member

CATCHWORDS

COMPENSATION - payment of medical treatment expenses - reasonable medical expenses - personal circumstances

Safety Rehabilitation and Compensation Act 1988

Stevens and Comcare (AAT 10498, 26 October 1995)

Corfield and Australian Postal Corporation [2000] AATA 533

Re Byrne and Department of Defence (1997) 25 AAR 510

REASONS FOR DECISION

17 January 2002 Ms J Cowdroy, Member

BACKGROUND TO THE APPEAL:

1. This is an appeal against a decision of Comcare dated 2 March 2001, as affirmed by an Independent Review Officer on 9 May 2001. The decision under review relates to the amount Comcare reimbursed the applicant for physiotherapy treatment in respect of a back injury that was incurred on 29 June 2000.

2. By determination dated 2 March 2001, the respondent acknowledged liability to pay compensation in respect of the applicant's back injury, described as aggravation of disc degeneration at L4-L5/L5-S1. The respondent also accepted liability for reasonable medical expenses, pursuant to Section 16 of the Safety Rehabilitation and Compensation Act 1988 (the Act) up to and including 26 April 2001. (T9-20).

3. The applicant sought payment of medical treatment expenses, namely physiotherapy treatment, that has been rendered since 29 June 2000. The respondent has provided the applicant with the sum of $36.80 in respect of each standard physiotherapy treatment. The applicant contends that such an amount is "not appropriate to that medical treatment", given that she is charged $50 for each standard consultation.

4. A hearing was conducted on 19 November 2001. The applicant appeared in person, accompanied by Mr P Hensome. Ms E Ford of counsel appeared for the respondent.

APPLICANT'S SUBMISSIONS:

5. The applicant commenced physiotherapy treatment with the Chapel Hill Physiotherapy Centre. When the physiotherapist who provided treatment left that practice, the applicant elected to obtain treatment from the City Centre Physiotherapy Clinic. The cost of treatment at city practices is higher than the fees charged by suburban practices. The cost of each consultation at City Centre Physiotherapy Clinic is $50, in respect of which Comcare has reimbursed the applicant the sum of $36.80.

6. The applicant contended that the respondent had failed to address her particular circumstances in determining the appropriate level of compensation. Specifically, she submitted that Comcare had failed to recognise the importance of her being able to obtain treatment at the city practice due to her confidence in the practitioner who provides the treatment. It was contended that the respondent had disregarded the fact that the city practices charge more than the suburban practices.

7. Further, the applicant submitted that regard should be had to her personal circumstances in that she worked part time, had two school age children and that the family operated within a tight financial budget. The applicant emphasised that although the amount in dispute is small, if she undertook weekly physiotherapy as recommended by her medical practitioner, it would place a financial strain on the family's finances.

8. The applicant provided a list setting out the cost of physiotherapy treatment provided by city and suburban practices, which forms exhibit 2. The average cost of a standard physiotherapy treatment was $45. The applicant pointed out that by attending a city practice, she was reducing the amount of time she was absent from work, as the city practice is within a short distance of her place of employment.

RESPONDENT'S SUBMISSIONS:

9. The respondent submitted that the Act does not provide for payment of costs on a full indemnity basis. In that context, it was appropriate to determine what is reasonable by deciding what is a suitable amount to pay for medical treatment. Adopting this attitude, the employee's personal circumstances were irrelevant. It was contended that the fact that the applicant paid $50 for each treatment was to be regarded as forming part of her "personal circumstances".

10. It was argued that the amount paid to injured workers in the form of compensation should be able to be calculated by reference to a straightforward, easily determinable process. In order to facilitate this process, in assessing what is appropriate, the respondent's standard practice in respect of medical expenses is to pay the fees recommended by the relevant professional body or WorkCover. The Queensland WorkCover rates as at 1 July 2000 provided for payment of $36.80 for a standard level B consultation and, from 1 July 2001, this was raised to $37.95.

LEGISLATIVE PROVISIONS:

11. Section 16 of the Act is relevant. It states:

"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 an amount as Comcare determines is appropriate to that medical treatment."

DISCUSSION AND FINDINGS:

12. By letter dated 2 March 2001, the applicant was informed by Comcare Australia as follows: "I have accepted liability for reasonable medical expenses, pursuant to Section 16 of the SRC ACT....." (T9-20)

13. The applicant contends that the term "reasonable medical expenses" is to be construed as the actual cost paid for medical services. However, Section 16 of the Act does not link reasonableness with the cost of medical treatment. Rather, it states that the medical treatment that was obtained must be reasonable for the employee to obtain in the circumstances. It is not in dispute that physiotherapy treatment is reasonable treatment for the applicant to obtain in the circumstances.

14. The amount of compensation is determined by reference to what is appropriate to that medical treatment. The respondent contends that the appropriate level of compensation is to be decided solely by reference to a schedule, which is based on the charges set by professional bodies or WorkCover Queensland. However, the evidence before the Tribunal is that all the physiotherapists contacted by the applicant charge in excess of that fee.

15. For completeness, the respondent had referred the Tribunal to Stevens and Comcare (AAT 10498, 26 October 1995), Corfield v Australian Postal Corporation [2000] AATA 533 and Re Byrne v Department of Defence (1997) 25 AAR 510. The first two of those cases relate in part to the payment of travel expenses incurred in attending for medical treatment and are not relevant to the case before the Tribunal. The latter case relates to a determination that the respondent pay compensation equal to the cost of three pairs of shoes. In that case, the respondent had determined that the cost of three pairs of shoes was to be reduced by an amount of $150, which was representative of a contribution of $50 per pair of shoes from the applicant. Member Campbell held that (i) the contribution of $50 per pair of shoes by the applicant arose from the creation of verbal policy by the respondent, and (ii) that the implementation of a verbal policy is unfair and uncertain in a situation where the applicant is unaware of the parameters and definitive issues of such a policy.

16. Member Campbell also determined that the policy of contribution is not consistent with the proper intent and interpretation of Section 16(1) of the Act, noting that the section is silent on any concept of contribution by an employee.

17. When deciding what amount is appropriate to particular medical treatment rendered, it is conceivable that reference must be made to the actual costs incurred. That is not to say that the issue of cost is open-ended. Clearly, if the majority of service providers charged between $45-$55 per session, and the costs incurred by the applicant for treatment from her practitioner of choice was vastly in excess of that amount, then it would be open to Comcare to determine that the amount was so disparate from the usual cost of providing such services, that it is not "appropriate to that medical treatment" and determine that a lesser amount be paid.

18. However, in the matter presently before the Tribunal, the applicant has expended $50 for physiotherapy treatments. Such a cost, whilst slightly higher than suburban practitioners, is not so far in excess of standard charges to classify it as not being an appropriate charge for that medical treatment.

19. The standard practice of Comcare in paying the scheduled fee for services can mean that an employee is compelled to subsidise the cost of medical treatments to a not insubstantial degree, particularly where the necessity for medical treatment is frequent and protracted. In having regard to the costs expended by an employee, it is not the case that Comcare is having regard to an employee's personal circumstances, rather it is having regard to the practical realities. In so finding, the Tribunal rejects the notion that appropriateness is measured solely by reference to the scheduled fee and prefers the notion that compensation should reflect the realities of the situation.

20. Accordingly, the Tribunal sets aside the decision under review and in substitution of the decision set aside, finds that the amount of compensation to be paid to the applicant in respect to medical expenses is to be that incurred by her, namely $50 for each physiotherapy session.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy

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

Associate

Date of Hearing 19 November 2001

Date of Decision 17 January 2001

For the Applicant In person

Counsel for the Respondent Ms E Ford

Solicitor for the Respondent Phillips Fox