Smith and Military Rehabilitation and Compensation Commission [2011] AATA 18 (18 January 2011)

Last Updated: 20 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 18

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/2769

GENERAL ADMINISTRATION DIVISION		)
	Re		WAYNE SMITH

Applicant

And

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal

Deputy President R D Nicholson

Date 18 January 2011

Place Perth

Decision

The Tribunal affirms the reviewable decision dated 27 May 2009.

....(sgd) R D Nicholson.......
Deputy President

CATCHWORDS
Applicant suffering from bodily overheating – whether that condition causally linked to his accepted injury of PTSD condition

LEGISLATION
Safety, Rehabilitation & Compensation Act 1988 – s 4 – s 16 – s39

CASES

Payne and Comcare [1997] AATA 48
Townely and Comcare -Defence [2004] AATA 252

Fitzgibbon and Comcare [1997] AATA 297

REASONS FOR DECISION

18 January 2011

Deputy President R D Nicholson

1. The applicant has an accepted claim for compensation pursuant to the Safety Rehabilitation & Compensation Act 1988 (the SRC Act) for post-traumatic stress disorder (“PTSD”), the date of injury being 11 November 2005.
2. By letter received on 8 July 2008 the applicant requested reimbursement, totally or partially, of a spa unit purchased on 21 December 2007 for $6,000. The applicant advised that initially the spa was purchased for entertainment purposes for the entire family. However, as the spa was temperature adjustable, he found it a very effective and efficient method of cooling his body after working for periods of time. The applicant submitted that as overheating was one of the most difficult ‘side effects’ he had to overcome, he found working for short periods of time, then cooling in the spa, allowed him to work somewhat longer.
3. A determination was made dated 8 July 2008 disallowing the applicant’s claim for reimbursement in respect of the spa as prior approval was neither sought or given to the applicant prior to purchase.
4. A reviewable decision was made dated 27 May 2009 affirming the determination.
5. The applicant has now applied to the Tribunal to review the respondent’s decision of 27 May 2009.

THE LEGISLATIVE REQUIREMENTS

6. The applicant’s application in respect of the purchase of the spa is governed by the provisions of the SRC Act.
7. Pursuant to that Act it must be shown that the applicant suffered an “injury” within the meaning of s4 of the Act. The respondent accepts that on 11 November 2005, the applicant suffered an “injury” within the meaning of that section, namely, PTSD. Pursuant to s14 of the SRC Act, compensation is payable in accordance with that Act in respect of an injury for the purposes of the Act.
8. The applicant must also show that his request for reimbursement in respect of the spa falls within either s16 which deals with medical expenses or s39 which deals with alterations to residences, vehicles, articles, aids and appliances.
9. Section 16(1) relevantly provides:

“(1) 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 the medical treatment.”

10. Section 39 provides:

(1) Where:
(a) an employee suffers an injury resulting in an impairment; and
(b) the employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program; the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee, of:
(c) ...
(d) ...; or
(e) any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances; being alterations, modifications or aids or appliances reasonably required by the employee, having regard to the nature of the employee’s impairment and, where appropriate, the requirements of the rehabilitation program.
(2) The matters to which the relevant authority shall have regard in determining the amount of compensation payable in a particular case under subsection (1) include such of the following matters as are relevant in that case:
(a) the likely period during which the alteration, modification, aid or appliance will be required;
(b) ....;
(c) ...;;
(d) ...;;
(e) whether arrangements can be made for hiring the relevant aid or appliance;
(f) ...
(3) ...:
(4) ...

THE FACTS

11. The applicant enlisted in the Royal Australian Navy on 6 June 1994. He was medically discharged on 18 November 2007. His rank on retirement was Petty Officer Electronic Technician.
12. When the applicant purchased the spa on 21 December 2007 and had it installed in his residence he did so for the entertainment of his family. He alleges and the respondent accepts that he suffers from overheating which causes him distress, discomfort and fatigue. The cause of the overheating is the major issue in this application.
13. At some point after its purchase, the applicant started using the spa to assist in ameliorating the effects of the overheating from which it is not disputed that he suffers.
14. The applicant contends that his overheating is caused by his PTSD condition. He therefore claims reimbursement from the respondent for the purchase of the spa.
15. The applicant has been treated by three specialist medical practitioners in relation to his overheating condition. The first was Dr L Risbey, Psychiatrist. Dr Risbey initially treated the applicant’s overheating as a symptom of the applicant’s PTSD. However, in May 2010, Dr Risbey referred the applicant to Dr A Singh, Physician, for review of his symptoms. It was then discovered that the applicant was suffering from a cyst in his brain. This was surgically removed on 24 March 2010, by Dr Charles Teo. The opinions of both Dr Singh and Dr Teo are that the applicant’s overheating has been caused by the cyst. The respondent does not dispute the evidence of Dr Singh or Dr Teo and did not seek to cross examine them.
16. At the hearing of the Tribunal on 8 July 2010 the applicant said that Dr Risbey had made an oral remark to him to the effect that he still considered his overheating was caused or contributed to by his PTSD. On the basis of this evidence the Tribunal adjourned the proceedings to permit the applicant to provide further support for his case including by way of further evidence from Dr Risbey. In order to assist the applicant, the respondent offered to seek a report from Dr Risbey and has sought such report. No report has been provided by Dr Risbey, despite many reminders. Dr Risbey has been aware of the date of the Tribunal’s reconvened hearing but has failed to furnish a report. Dr Risbey communicated to the respondent and hence to the applicant that he expected that he would a report, hence no summons was issued in respect of his further evidence.

THE APPLICANT’S CASE

17. In bringing his present application in respect of the expenses of the spa the applicant relies upon two issues. The first is the alleged oral remark made by Dr Risbey.
18. The second are numerous documents to which he has drawn attention in attachments 1 to 17 filed in response to a direction made at the last hearing of the Tribunal.

WHETHER APPLICANT’S MEDICAL EVIDENCE ESTABLISHES CAUSAL RELATIONSHIP OF OVERHEATING TO PTSD CONDITION DUE TO A SIDE EFFECT OF SIGNIFICANT WEIGHT

19. As has been stated, it was Dr Risbey who in a letter dated 28 May 2009 considered that there may be an additional pathology involved in the applicant’s condition which needed to be investigated. It was he who recommended further investigation by the physician, Dr Singh.
20. Dr Singh thoroughly investigated the applicant’s various symptoms, including ordering an MRI of his brain. As a consequence of those investigations it became clear that the applicant’s overheating problem was caused by a cyst of the septum pellucidum which was having mass effect on the hypothalamus and which required immediate surgical removal.
    
21. In a report of Dr Singh dated 15 January 2010 he considered that the best explanation to account for the applicant’s disparate symptoms, including that of overheating, was a slowly expanding non-malignant hypothalamic tumour. In a further report dated 1 February 2010 Dr Singh stated that the applicant had a hypothalamic mass being a cyst of the septum pellucidum which was having mass effect on the hypothalamus. He thought that this would explain the applicant’s symptoms including his temperature dysregulation. In a further report dated 8 March 2010 Dr Singh reported that after detailed investigation he had no doubt that the applicant’s symptoms could be accounted for by a single pathology, hypopituitarism secondary to an expanding hypothalamic mass. He said that the tumour was having a mass effect and needed surgical compression. Clinical signs and symptoms included hyperthermia showed the applicant’s inability to regulate body temperature. On 15 August 2010 Dr Singh reported that the applicant’s overheating was a result of his hypothalamic tumour. He also agreed that Dr Risbey’s opinion written on 28 May 2009, in particular that PTSD does affect the hypothalamic pituitary adrenal axis, would not alone account for all his symptoms.
22. Dr Teo reported on 11 May 2010 that he concurred with Dr Singh’s letter dated 8 March 2010 regarding the applicant’s symptoms.
23. As has also been previously stated every effort was made to obtain a further report from Dr Risbey. Despite numerous reminders, detailed in a report from the respondent to the Tribunal, Dr Risbey has failed to provide a further report. Hence, his opinion following the diagnosis and the surgical removal of the applicant’s brain cyst has not been obtained.
24. The present issue which the Tribunal must decide is whether the applicant’s overheating condition is an “injury ... arising out of, or in the course of the employee’s employment “ within the meaning of s4 of the SRC Act (being the relevant provision in the applicant’s circumstances).
25. The evidence before the Tribunal from Dr Singh and Dr Teo is that the applicant’s overheating condition has been caused by the cyst in his brain. The only material available from a medical specialist before the Tribunal in contradiction of that position is the opinion of Dr Risbey said to be expressed in July 2008 and his alleged oral statement at a consultation prior to the hearing in July 2010. These two pieces of material cannot be relied upon by the Tribunal. The previous opinion of Dr Risbey in July 2008 was expressed prior to the definitive diagnosis provided by Dr Singh and the removal of the cyst by Dr Teo. Dr Risbey has not commented on those opinions, despite the opportunity to do so. In short, his opinion of July 2008 is patently out of date.
26. The alleged remark made by Dr Risbey to the applicant prior to the July 2010 hearing is also unreliable and could not safely form the basis of a decision in favour of the applicant. It is objectionable on the ground that it is hearsay and cannot be tested by cross examination. It was made without the benefit of Dr Risbey seeing the more recent opinion of Dr Singh provided in his letter dated 15 August 2010.
27. The applicant has lodged a separate claim for compensation for a cyst for which liability has been declined under the Military Rehabilitation and Compensation Act 2004. The issue as to whether there is liability for the cyst is not before this Tribunal.
28. In my opinion, it follows that the first leg of the applicant’s case does not assist in making out his present claim.

IS THE APPLICANT’S RELIANCE ON VARIOUS DOCUMENTS OF ASSISTANCE IN ESTABLISHING THE CAUSAL LINK BETWEEN OVERHEATING AND THE PTSD CONDITION?

29. The material contained in the applicant’s response to the Tribunal’s Direction Point 2 is described by him in the following terms:

“1) Diagnostic Screening Manual (DSM IV) PTSD section (MRCC reference manual, respondent can get a copy of the relevant section from MRCG’s internal doctor)

2. Website information www.Helpguide.org/post_traumatic_stress_disorder
3. Website information www.ptsdsupport.net/whatis_ptsd.html
4. Website information www.ptsdsupport.net/biology&PTSD.html
5. Website information www.vvaa.org.au/ptsd.html
6. Website information www.ptsd.about.com/symptoms.html....
7. Website information www.pickingupthepeaces.org.au/ptsd_symptom
8. PTSD Trauma Programme 1 Hollywood Clinic Volume 1 – Handout Symptoms and of Traumatic Stress
9. Medical Definition/Information relating to HPA axis source Wikipedia
10. Medical Definition/Information relating to HPA axis source About.com
11. Medical Definition/Information relating to Hypothalamus source Medline Plus
12. Medical Definition/Information relating to Hypothalamus source Wikipedia
13. Medical Definition/Information relating to Autonomic Nervous system source Wikipedia
14. Medical Definition/Information relating to Epinephrine source Wikipedia
15. Medical Definition/Information relating to Glucocorticoid source Wikipedia
16. Medical Definition/Information relating to Sympathetic Nervous System source Wikipedia
17. Medical Definition/Information relating to Homeostasis source Wikipedia”
    
30. As is apparent from the above descriptions, the materials are obtained from numerous sources, being sources giving rise to the need for expert evidence. The expertise of the various authors of each document has not been stated generally and none have been produced for cross examination. It is the case that s 33(1)(2) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. This provision means that the Tribunal must fix on such manner of proof as it thinks appropriate: that is, the manner of proof takes its colour from the nature of the issue requiring proof. Causality is always a difficult issue requiring a careful approach to evidence. In my opinion the documents relied upon by the applicant fail entirely to support a conclusion to establish a causal link between the applicant’s PTSD condition and his overheating.

WHETHER ANY COMPENSATION WOULD BE FOR MEDICAL TREATMENT

31. Issues to be addressed pursuant to s 16 of the SRC Act are whether the spa is medical treatment obtained in relation to the “injury”, specifically PTSD resulting in overheating. Further, whether it was reasonable that the applicant obtained the spa in the circumstance for medical treatment.
32. The term “medical treatment” as defined in s 4 of the Act includes “therapeutic treatment” which is also defined in that section. It has been held at first instance that the spa can be medical treatment for the purposes of s 16 of the SRC Act: Payne and Comcare [1997] AATA 48. The question is whether the use of the spa constituted reasonable medical treatment was considered in Townely and Comcare -Defence [2004] AATA 252. This is a question of fact requiring consideration in each individual case.
33. It is apparent that the applicant cannot succeed in reaching the point of having s16 applied because he has been unable to establish any causal link between his PTSD condition and his condition of overheating.
34. The respondent contends that if the spa is medical treatment for the purposes of the SRC Act, it was treatment that was not reasonable for the applicant to obtain in the circumstances. It is said that this is because the spa was not obtained at the direction of a legally qualified medical practitioner or under the supervision of such a practitioner. Further, that as indicated by the applicant, the spa was initially purchased for entertainment purposes and for use by his family. The medical support was not obtained until some months later and when obtained there was no direct reference to use of a spa.
35. As the applicant cannot establish the causal link necessary for the application of this section, I need not make any decision on these submissions.

WHETHER SPA CAN BE AN AID OR APPLIANCE FOR THE PURPOSES OF S 39 OF THE SRC ACT?

36. Section 39 requires that an employee suffers an injury resulting in impairment. The applicant has not made out his claim that his injury constituted by the PTSD condition has resulted in the impairment being his overheating. On the contrary, the evidence establishes that the overheating was caused by the applicant’s cyst.
37. The respondent agrees that the applicant (on the assumption that the applicant had been able to make out the relevant causal link between his PTSD condition and his impairment of overheating) has undertaken a rehabilitation programme as described in the relevant rehabilitation plans provided to the Tribunal. The relevant rehabilitation progress reports make reference to the applicant’s overheating. They also make reference to the applicant’s problems to undertake his rehabilitation program because of his overheating and other medical issues.
38. The respondent submits, however, this is not sufficient to entitle the applicant to compensation for the purchase of the spa under s 39 of the SRC Act. It is said that this is because there has not been any discussion or notations incorporating the spa within the applicant’s rehabilitation programme. Further there are no references in Work Solutions’ reports as to any discussions between Work Solutions and the applicant as to the claimed benefits of using the spa in relation to the work trial or otherwise.
39. The respondent also submits that it is difficult to understand or to accept how using a spa at home helped with the vocational program or work trial which involved the applicant working outdoors.
40. Further, it is submitted by the respondent that if it is considered that a spa is reasonably required by the applicant consideration must be given to the matter set out in s 39 (2) in determining the amount of the compensation payable. It is said that the fact that appears to be relevant in this case in the likely period in which the spa is required. Another relevant factor to be taken into whether there are other appropriate facilities available which cost less than amount being claimed but would still cool down the applicant (see Fitzgibbon and Comcare [1997] AATA 297).
41. The respondent says that the period during which the applicant was involved in work trials appears to have been from April 2008 to August 2008; therefore the applicant would only be entitled to a proportion of the total cost of the spa. The applicant has claimed that he uses the spa 80% of the time which equates to $4,800 of the spa cost of $6,000. The respondent submits it is more reasonable to allow 50% of the cost of the purchase of the spa if that was an issue.
42. Because the applicant is unable to make out the causal claim that his overheating condition is impairment resulting from his accepted injury of the PTSD condition, it is not necessary for any decision to be reached on these submissions.

CONCLUSION

43. For the reasons stated above, the applicant has not provided evidence that his overheating condition is causally linked to his accepted injury of the PTSD condition.
44. Accordingly, the reviewable decision dated 27 May 2009 is affirmed.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President R D Nicholson

Signed: (sgd) T Freeman.........................

Associate

Date/s of Hearing 8 July 2010 and 13 December 2010

Date of Decision January 2011

Applicant Self represented

Counsel for the Respondent Ms P Giles

Solicitor for the Respondent Sparke Helmore Lawyers