Case: Comcare v Rope [2004] FCA 540 ; (2004) 135 FCR 443
Outcome: applied
There were three arguments advanced by Comcare on the appeal. They were: (1) The AAT had not applied the principles discussed by Stone J in Comcare v Rope [2004] FCA 540 ; (2004) 135 FCR 443 at 448, at [17], and in particular that it did not consider the prospective benefits of the proposed treatment against its prospective costs, that is that it did not weigh the benefit of the retreat against the cost of obtaining it. It was said that the AAT erred by proceeding on the basis that in the absence of a cheaper alternative, the treatment was reasonable, because it failed to consider whether the cost of the proposed treatment was reasonable in the circumstances. That was said to be a failure to take material facts into account and to examine them in relation to a matter the Tribunal had to determine so as to amount to an error of law. (2) The AAT took into account irrelevant considerations, namely that Comcare had previously funded such medical treatment, and secondly that Comcare had an obligation upon it to demonstrate an alternative medical treatment that has equivalent therapeutic benefit but at a lower cost. (3) The AAT failed to comply with the obligation imposed by s 43(2) of the AAT Act and failed to deal with a submission seriously advanced by Comcare, relevant to the issue before the Tribunal and worthy of consideration, namely that any benefit Mr Holt obtained from the medical treatment was outweighed by the cost of treatment. As to the third argument, Comcare's statement of facts and contentions before the AAT included the proposition that any benefit to Mr Holt from attending the retreat was outweighed by the cost of obtaining the treatment (as the AAT noted about $1650). It was contended that Comcare's contention in that regard was not addressed in the AAT's reasons at all. 21 Counsel for the parties were agreed on the principles to be applied in determining whether the proposed treatment was reasonable for Mr Holt to obtain in the circumstances. In Rope 135 FCR at 448, at [17], Stone J said: 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. 22 In that case, the employee had suffered a compensatable injury and had received psychoneuroimmunology (PNI) treatment from a psychotherapist in Canberra. The psychotherapist had subsequently moved her practice to Townsville and the issue was whether the employee was entitled to recover from Comcare the costs of her travel to Townsville to continue her PNI treatment. There was no equivalent treatment available in Canberra. The AAT determined that it was reasonable for that employee to obtain PNI treatment and be reimbursed for the cost of travelling to Townsville to obtain it. Justice Stone found no error of law on the part of the AAT in making that decision. 23 Coincidentally, in that case, the argument of Comcare significantly resembles its argument in this matter. It was argued that the AAT had failed to engage in a costs/benefit analysis in determining that it was reasonable for that employee to obtain PNI treatment in Townsville. Justice Stone concluded that the findings of the Tribunal were open to it on the evidence and provided no basis for the Court to interfere with those findings. Her Honour said, after accepting that there was predominant medical opinion that the proposed PNI treatment had therapeutic value for that employee because it assisted her in managing the pain of her injury and improved her quality of life, at 448, at [19]: 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 [the employee] 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 [the employee] 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. 24 The first contention is based upon the observations of the AAT set out in [19] above. 25 I agree that it would have been erroneous for the AAT generally to declare that the therapeutic treatment is unreasonable only if Comcare establishes that there is alternative treatment with equivalent therapeutic benefit available at a lower cost. There may be circumstances where treatment is unreasonable because its anticipated therapeutic benefit does not justify the expense involved in the circumstances. Section 16(1) of the SRC Act does not indicate that a proposed treatment is reasonable unless alternative treatment of more or less equivalent therapeutic benefit and at a lesser cost is shown by Comcare to be available. That is consistent with the approach of Stone J in Rope [2004] FCA 540 ; 135 FCR 443. Of course, it will be common for the reasonableness of proposed medical treatment to be assessed in the light of alternative treatment options, but that is not necessarily so. There might be cases where the cost of the proposed treatment, even if no other treatment options were available, would lead to the view that the proposed treatment is unreasonable having regard to its anticipated benefit. Such a circumstance is, of course, likely to be uncommon if only because treating medical practitioners generally act responsibly and with sound medical judgment.