FEDERAL COURT OF AUSTRALIA
Howes v Comcare [2015] FCA 1078
IN THE FEDERAL COURT OF AUSTRALIA | |
Applicant | |
AND: | Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
2. The decision dated 28 January 2015 of the Administrative Appeals Tribunal be set aside.
3. The application for review dated 2 May 2013 be remitted for reconsideration according to law.
4. The respondent pay the applicant’s costs of the appeal as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY | |
GENERAL DIVISION | ACD 15 of 2015 |
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL |
BETWEEN: | ROSEANNE HOWES Applicant |
AND: | COMCARE Respondent |
JUDGE: | GRIFFITHS J |
DATE: | 7 october 2015 |
PLACE: | CANBERRA via videolink to sydney |
REASONS FOR JUDGMENT
1 This appeal is brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), which is confined to a decision on a question of law. The Administrative Appeals Tribunal (AAT) affirmed the respondent’s decision which refused the applicant’s claim for reimbursement of the cost of a breast reduction under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
Summary of background facts
2 In August 2003, the applicant commenced work with the Australian Taxation Office (ATO). Her employment required her to use a computer constantly. In April 2005 she experienced intermittent pain in her neck and by July 2005 she was experiencing constant pain in her neck and pain in her right shoulder. After she submitted a workers’ compensation claim in September 2005, Comcare determined that liability was accepted for “intervertebral disc disorder – cervical region”, “sprain of shoulder and upper arm (right)”, “subacromial bursitis (right)” and “erosion of teeth” (caused by the applicant grinding her teeth at night in response to her pain) (the compensable injuries).
3 The applicant claimed that the weight of her breasts increased the pain in her neck and shoulder and that she had also put on weight because of the medication she was taking for her pain. In November 2006, she consulted a plastic surgeon, Dr Ferguson about the possibility of breast reduction for the relief of the pain. In March 2007, she consulted an orthopaedic surgeon, Dr Coyle, who suggested that breast reduction might help the pain.
4 Throughout 2006-2007 the applicant undertook various treatments including for weight loss. She also consulted another orthopaedic surgeon (Dr Damiani) in August 2007. She underwent a shoulder operation with Dr Damiani on 25 March 2008, but this operation did not help her pain. From late 2005 until at least November 2008, the applicant was treated by a rehabilitation specialist, Dr May, who prescribed oral pain medication, massage, hydrotherapy, physiotherapy, a home exercise program and guided injections around the C6 nerve root.
5 Dr May ultimately referred the applicant to a neurosurgeon, Dr Pell, in respect of her neck pain. In December 2008 Dr Pell diagnosed that Ms Howes had a C5-C6 disc prolapse. He advised that she undergo neck surgery. The applicant was reluctant to do so; consequently he recommended further nerve root injections.
6 In July 2009, the applicant’s general practitioner (Dr Donaghy) referred her to Dr Milovic, a plastic surgeon, for consideration of a breast reduction for pain relief. The applicant claimed that she was advised by Dr Milovic that a breast reduction might assist in the reduction of her pain. In August 2009, the applicant was referred again to Dr Damiani. She was also referred for a second opinion to a plastic surgeon, Dr Taylor, who in August 2009 advised her that a breast reduction might assist in pain reduction.
7 On 23 October 2009, at the ATO’s request, the applicant attended a consultant, Dr Macauley (a consultant rheumatologist). The applicant claimed that she asked Dr Macauley whether a breast reduction would be beneficial and that she was told that a breast reduction might assist in pain reduction and that she should “consider a breast reduction as a matter of urgency”.
8 On 2 November 2009, the applicant underwent breast reduction and abdominoplasty surgery, which was carried out by Dr Milovic.
9 In 2012, the applicant claimed reimbursement under s 16 of the SRC Act of the cost of the breast reduction ($19,956.80, comprising fees charged by or relating to the surgeon, the anaesthetist, pathology and the hospital), which was refused by Comcare on 22 August 2012. On 25 January 2013, a reconsideration was requested. The reconsideration was concluded on 22 April 2013. It resulted in an adverse decision. The applicant sought a review by the AAT of that reviewable decision.
10 The hearing in the AAT commenced on 10 November 2014 and the AAT member reserved her decision at the end of that day. The hearing resumed the following day at the request of the AAT member so that the applicant could be questioned by the member in relation to material which Comcare had tendered, but which the member said she had had no prior opportunity to review until after she had reserved her decision. At the resumed hearing, the member questioned the applicant at length.
11 On 12 November 2014, the applicant’s solicitors wrote to the AAT, making an allegation of bias and asked that the matter be remitted to a differently constituted tribunal for rehearing. That application was unsuccessful. The recusal application was formally dismissed by the member on 14 November 2014. No transcript is available in respect of the brief hearing on that day and no explanation has been provided as to why no transcript was taken. I was told that the member afforded the parties no opportunity to make submissions in respect of the recusal application before it was rejected by her and the proceeding was immediately adjourned. The parties were, however, given an opportunity to file supplementary written submissions relating to the member’s questioning of the applicant at the resumed hearing. Both parties availed themselves of that opportunity.
12 On 28 January 2015, the AAT handed down its reasons for decision for affirming the reviewable decision.
Summary of AAT’s reasons for decision
13 The AAT identified the following central issues for determination in its review:
(a) whether the applicant’s breast reduction surgery was undertaken at the direction of legally qualified medical practitioners in relation to her compensable injuries; and if so
(b) whether the treatment was reasonable in the circumstances.
14 The AAT outlined the applicant’s medical history, the medical advice she was given and the procedures which she underwent.
15 The AAT explained at [22] how, after it had reserved its decision, it had an opportunity to review 400 pages of material obtained on summons by the respondent from the Garema Place Medical Clinic (where the applicant’s general practitioner, Dr Donaghy, practised). The AAT recorded that it noted that much of the summons material appeared to contradict the applicant’s evidence. It stated that, as a matter of procedural fairness, it reconvened the hearing to give the applicant an opportunity to respond. The AAT explained how, during the course of the resumed hearing and after some of the material had been put to the applicant, the applicant stated that “she had personal obligations that required her immediate departure” (at [23]). It added that the applicant declined the AAT’s request to reconvene at a time that suited her. It further recorded that, the applicant having left the hearing room, her counsel accused the AAT member of bias. The member recorded in her reasons for decision that, during the course of the exchange with counsel, the applicant re-entered the hearing room “and it became obvious she had been listening from outside in the corridor” (at [23]). It then said that, uninvited, the applicant proceeded to volunteer further evidence, some of which the respondent objected to. (It might be interpolated at this point that the applicant challenges the accuracy of this description of the events which occurred on 11 November 2014. The transcript of that resumed hearing does not support the AAT’s account that the applicant left the hearing and then re-entered and volunteered further evidence).
16 The AAT summarised the relevant provisions of the SRC Act, including s 16(1) and the definition of “medical treatment” in s 4. Paragraphs (a) and (b) of that definition should be noted as they are at the forefront of the appeal:
medical treatment means:
(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
…
17 It should be observed at this point that the SRC Act does not contain a definition of “surgical treatment”. It does, however, contain the following definition in s 4 of “therapeutic treatment” (although it is also notable that the AAT made no explicit reference to this definition):
therapeutic treatment includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
18 The concept of “therapeutic treatment” also appears in paragraph (d) of the definition of “medical treatment”:
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
…
19 In its reasons for decision, the AAT focused only on the definition of “medical treatment” in paragraph (b), a matter which gives rise to one of the main grounds of appeal. In particular, the applicant complains that, notwithstanding that it was made clear to the AAT that she relied on paragraph (a) of the definition of “medical treatment”, the AAT failed to address that case. Instead, it focused exclusively on the way in which Comcare put its case, which relied exclusively on the definition in paragraph (b) (i.e. therapeutic treatment obtained at the direction of a legally qualified medical practitioner).
20 The AAT discussed caselaw relating to what constitutes “therapeutic treatment”, including Hill J’s decision in Thiele v Commonwealth [1990] FCA 123; (1990) 22 FCR 342 (Thiele) and Finn J’s decision in Comcare v Watson [1997] FCA 149; (1997) 73 FCR 273.
21 In determining whether the breast reduction surgery was “therapeutic treatment” which the applicant obtained at the direction of legally qualified medical practitioners, the AAT identified the following three relevant questions (it emphasised the words in italics):
(a) Did the applicant undertake breast reduction surgery at the direction of a legally qualified medical practitioner?
(b) If so, did the doctor who directed her, intend the surgery to be therapeutic in the context of Ms Howes’ compensable injuries?
(c) For what purpose was breast reduction surgery undertaken?
22 On the first of those questions, the AAT found that neither Dr Donaghy nor Dr Coyle directed the applicant to have breast reduction surgery. It found that Dr Donaghy sent the applicant to plastic surgeons Dr Milovic and Dr Taylor, however, Dr Donaghy did not direct the applicant to have breast reduction surgery. As to Dr Coyle, the AAT found that even if Dr Coyle considered breast reduction surgery would be beneficial, he was not one of the applicant’s treating doctors and was not in a role which allowed him to provide direction regarding any therapy in respect of the applicant’s accepted or compensable injuries.
23 The AAT also found that Dr Macauley did not issue any such direction because the summons material indicated that the applicant had already decided to proceed with breast reduction surgery and booked in for that procedure prior to consulting Dr Macauley. It found that Dr Macauley supported her decision to undergo such surgery, but he did not direct her to undertake the procedure.
24 The AAT accepted and found, however, that Dr Milovic and Dr Taylor both directed the applicant to undergo breast reduction surgery.
25 The second relevant question which had been identified by the AAT focused on whether either Dr Milovic or Dr Taylor intended breast reduction surgery to be therapeutic treatment for the applicant’s compensable injuries. The AAT found that neither doctor considered breast reduction surgery was specifically treating the applicant’s compensable injuries or symptoms that resulted from these injuries. It found that the evidence suggested that neither of those doctors even knew what the pathological nature of the applicant’s compensable injuries were at the time they directed her to undergo the procedure. It found that the surgery recommended by both these doctors was as a way of relieving pain in the neck and shoulders due to the excessive weight of the applicant’s breasts. The AAT acknowledged at [45] that it could be argued that Drs Milovic and Taylor directed the applicant to undergo breast reduction surgery to treat excess weight, “which was an issue that needed addressing as a prerequisite to the treatment of the compensable conditions”, but that this took the matter no further because it found that the primary reason for the applicant underdoing the breast reduction was “more likely to be cosmetic” (at [46]). The AAT said at [46] that the applicant’s claim would fail also because such a procedure was not reasonable treatment for excessive weight, even if the weight loss was required urgently.
26 In determining the third relevant question, the AAT concluded that it was reasonably satisfied that the applicant underwent breast surgery primarily for cosmetic reasons and that was the purpose for which the treatment was undertaken (even if the applicant also thought that the surgery might assist with her neck pain by reducing some of the weight in her breasts). The AAT found that the applicant would have undergone the surgery at the relevant time regardless of whether it might help relieve her pain.
27 The AAT found the applicant to be “an unreliable historian” and that her account of how she came to have the surgery was inconsistent with the contemporaneous material (at [48]). It found that the applicant was contemplating plastic surgery on her breasts prior to the onset of her compensable injuries (at [49]). The AAT observed that the applicant had admitted this in cross-examination. It pointed to the fact that in November 2006 (i.e. approximately four months prior to consulting Dr Coyle), the applicant consulted Dr Ferguson for the purpose of obtaining advice on cosmetic surgery, including breast reduction surgery. The AAT noted that she omitted to mention this consultation with Dr Ferguson in either her written submissions or her evidence in chief (at [50]).
28 The AAT found that, before or during her consultation with Dr Coyle, the applicant realised that some people have reduced neck pain following breast reduction surgery and that this presented her with an opportunity to undergo the surgery and to hope that Comcare would accept financial responsibility for it (at [51]).
29 The AAT gave reasons for rejecting some of the applicant’s evidence regarding the timing of her decision to proceed with the surgery which, it found, undermined her reasons for undergoing the procedure. In particular, it found that the applicant tried “retrospectively” to write Dr Macauley into the history of why she underwent the surgery. This, it found, was for the purpose of having Comcare reimburse her for the costs of that surgery (at [52]).
30 The AAT set out at some length its reasons for rejecting other parts of the applicant’s evidence, including her claims regarding the advice she received from Dr Pell and Dr Coyle.
31 The AAT found that the applicant’s focus on cosmetic gain more than on pain relief was reflected in the fact that she underwent other cosmetic surgery (i.e. abdominoplasty), at the same time as her breast reduction surgery (at [56]).
32 The AAT turned its attention next to the question whether it was “reasonable” under the circumstances for the applicant to undergo breast reduction surgery as part of an urgent weight loss treatment. It is evident that the AAT addressed this issue because of the requirement in s 16(1) of the SRC Act that, for Comcare to be liable to pay the cost of medical treatment obtained in relation an injury, the treatment must have been “reasonable for the employee to obtain in the circumstances”.
33 The AAT concluded at [68] that the applicant had failed to discharge her onus of establishing that the breast reduction surgery was reasonable in the circumstances of her case. It reached that conclusion by reference to the following two matters:
(a) whether weight reduction treatment was reasonable therapy for the applicant’s compensable injuries; and
(b) if it was, whether breast reduction surgery was a reasonable form of therapy to treat excessive weight.
34 On the first of those matters, the AAT considered the evidence of the applicant, Dr Macauley, Dr Milovic and Dr Maxwell. It noted that there was a disagreement between Dr Milovic and Dr Maxwell as to whether breast reduction surgery could affect the applicant’s neck and shoulder pain. Dr Macauley advised her to give urgent consideration to having breast reduction. The AAT observed at [77] that it was “likely that the urgent consideration Dr Macauley mentioned had more to do with the arranging for Comcare to accept financial responsibility for the surgery”, which was already scheduled to occur nine days after Dr Macauley gave that advice.
35 Ultimately, however, the AAT made no finding as to whether weight reduction was a reasonable treatment necessary as part of a treatment plan for the applicant’s compensable injuries because it stated that the applicant’s claim would fail in any event because of its finding that breast reduction surgery was not the most cost effective means of treating the applicant’s excessive weight. Accordingly, that treatment was not “reasonable” for the purposes of s 16(1) of the SRC Act.
36 In considering whether the breast reduction surgery was the most cost effective means of treating the applicant’s excessive weight (see [79]-[89]), the AAT summarised Dr Milovic’s relevant evidence, as well as that of the applicant and Dr Macauley. At [84] of its reasons for decision, the AAT made the following findings:
Dr Macauley's advice was that Ms Howes required urgent weight loss. He did not confine his advice to the weight on her breasts alone. This means that even if Ms Howes lost weight on her breasts as a result of breast surgery, she still required urgent weight reduction for the remainder of her body. It was not, in my opinion reasonable, for the purposes of s 16 of the Act, for Ms Howes to pursue breast reduction surgery as a form of reducing the weight of her breasts, until she had attempted one or more general weight loss programs. Even then, the surgery would not necessarily be reasonable.
37 The AAT proceeded to consider whether the breast reduction surgery was part of a plan for permanent improvement in the applicant’s health (see [85]-[89]). The AAT explained that this issue was relevant, citing an earlier decision of the AAT in Re Chowdhary and Comcare [1998] AATA 448 (Chowdhary).
38 The AAT noted at [87] that Dr Damiani had recommended that the applicant have physiotherapy and hydrotherapy around the time that she underwent breast reduction surgery. The AAT referred to Dr Damiani having commented that the applicant had not undertaken hydrotherapy as recommended by him because she had had plastic surgery done by Dr Milovic. Accordingly, the AAT concluded at [88] of its reasons for decision that, rather than being part of the treatment plan, the applicant’s decision to have breast reduction surgery when she did interfered with the treatment plan that had been suggested by Dr Damiani.
39 The AAT also found that the applicant had not followed through with advice she had received from a physiotherapist, Mr Kennard, who had prescribed a home exercise program aimed at progressively strengthening her core and postural muscles. The AAT commented that it was not for the applicant to “pick and choose the therapies of their choice, and then seek to claim reimbursement for that choice” (at [89]).
40 The AAT’s ultimate conclusion is reflected in [90] of its reasons for decision:
Breast reduction surgery was not part of the applicant's treatment plan, and not a reasonable cost effective means of weight reduction or reduction in the weight of her breasts. The evidence points to Ms Howes requesting Comcare pay for surgery that she was otherwise (sic) would have undergone, on the grounds that there was a possibility the surgery may also benefit her compensable injuries. The primary purpose of her surgery was cosmetic, and not for the purpose of treating her compensable injuries. Breast reduction surgery was not reasonable, for the purposes of s 16 of the Act. Her claim must therefore fail.
41 In summary, the AAT:
did not accept that either Dr Milovic or Dr Taylor considered that they were treating the applicant’s compensable injuries by performing the breast reduction surgery;
found that there were other motivations for the applicant to undergo that surgery;
considered it was significant that the applicant did not undergo any of the treatment recommendations made by other medical practitioners;
determined that the delay in the applicant making a claim for compensation suggested that the motivation for the surgery was cosmetic and not related to her injuries;
found that the applicant had not engaged in other methods to reduce her general body weight, as recommended by Dr Macauley, but addressed the weight of her breasts only; and
determined that the absence of any breast reduction as part of a treatment plan was indicative of it not being treatment in relation to her injuries (citing Chowdhary).
The appeal
42 The notice of appeal identified the following ten questions of law:
1. Whether the Tribunal failed to understand that the applicant put her case on paragraph (a) of the definition of ‘medical treatment’ in section 4 of the Safety Rehabilitation and Compensation Act 1988 (SRCA) and not paragraph (b) of that definition, and hence whether the Tribunal failed to address the claim as made;
2. Whether the Tribunal failed to understand that the applicant put her case on the basis that the breast reduction was reasonable medical treatment for the purposes of section 16(1) of the SRCA for the relief of pain to the accepted injuries to her shoulder and neck, and had nothing to do with general weight reduction, and hence whether the Tribunal failed to address the claim as made;
3. Whether, as a consequence of 1 and 2 above, the Tribunal failed to have regard to relevant considerations and had regard to irrelevant considerations in coming to its decision. The relevant considerations centred on the terms of paragraph (a) of the definition of ‘medical treatment’ in section 4 of the SRCA and the value of the breast reduction for pain relief to the accepted compensable neck and shoulder injuries. The irrelevant consideration arose from a focus on the terms of paragraph (b) of the definition of ‘medical treatment’ and a consideration of the value of the breast reduction for general weight control;
4. Whether the Tribunal misconstrued section 16(1) in requiring that the therapeutic motivation be the sole cause for having the breast reduction treatment;
5. Whether the Tribunal misconstrued section 16(1) in requiring that the surgery could only be reasonable treatment if the referral to the plastic surgeon for the breast reduction came from an orthopaedic surgeon;
6. Whether the Tribunal misconstrued the phrase ‘in respect of’ in section 16(1) in requiring that the surgeon must report in terms of the aetiology of the accepted condition rather than in terms of the symptoms of the accepted condition, before the surgery can be ‘in respect of’ the accepted condition;
7. Whether the Tribunal misconstrued section 16(1) by requiring that the surgical treatment must form part of some wider treatment plan and cannot be reasonable medical treatment by itself;
8. Whether the Tribunal’s conduct gave rise to either apprehended or actual bias against the Applicant….
9. Whether the Tribunal denied the applicant procedural fairness in the manner in which it conducted the resumed hearing on 11 November 2014 and in determining issues of construction… that were never raised in the hearing.
10. Whether viewed as whole, and having regard to each of the above questions of law, the Tribunal’s decision is unreasonable at law.
43 The so-called grounds of appeal which were set out in the original notice of appeal extended over 76 paragraphs. They took the form of detailed submissions and could scarcely be described as “grounds of appeal”. The failure precisely to identify the grounds of appeal constituted a major deficiency in the notice of appeal (see further below). Although Comcare filed no objection to competency, after the Court raised the difficulties presented by the discursive nature of the grounds of appeal, Mr Robinson SC (who appeared together with Mr Anforth for the applicant) sought and was granted leave to file an amended notice of appeal which precisely identified the grounds of appeal. Leave was also granted for the “submissions” in the existing notice of appeal to be transferred to a separate document.
44 That amended notice of appeal identified the following grounds of appeal (errors in original):
Grounds relied on
Question of law 1:
The Applicant’s case was at all times put in the basis that paragraph (a) of the definition of ‘medical treatment’ applied and it was never put on the basis that paragraph (b) had any relevant operation. The Tribunal fell into error or law in that it gave no consideration to paragraph (a) and only considered paragraph (b) of the definition.
Question of law 2:
The Applicant’s case was at all times put on the basis that the breast reduction surgery was undertaken in order to relieve the pain on her neck and shoulder arising from her accepted compensable injury. It was never put or suggested by the Applicant that her breast reduction surgery was part of a general weight reduction strategy. The Tribunal wrongly addressed the claim on the basis that the surgery was for general weight reduction and concluded that the surgery was not a cost effectiveness means of weight reduction [90].
Question of law 3:
The grounds for this question of law follow from the above.
Question of law 4:
The Tribunal wrongly took the position that the presence of a collateral cosmetic gain from the Applicant’s surgery was sufficient to take the treatment outside the scope of section 16(1) of the Act in that the surgery ceased to be ‘in respect of the cost of medical treatment obtained in relation to the injury’.
Nothing in section 16 or the Act generally connotes any such sole purpose test. It is an erroneous and unnecessary gloss imposed by the Tribunal on section 16.
The Tribunal failed to consider the motivations of the treating medical practitioner. Whether treatment by a medical practitioner was provided ‘in relation to the injury’ involves consideration of the motivations of the medical practitioner which is not determined by the presence or otherwise of any thoughts of collateral cosmetic gain to the Applicant.
Question of law 5:
The Tribunal wrongly took the position that the surgery could only be reasonable within the meaning of section 16(1) if the referral to the plastic surgeon came from an orthopaedic surgeon.
There is nothing in section 16 or in the Act generally that supports this further gloss imposed by the Tribunal on section 16.
Question of law 6:
The Tribunal wrongly took the position that treatment for the purposes of section 16(1) could not be for relief of pain per se arising from the compensable injury, but must address the aetiology of the condition.
The Tribunal took the view that treatment does not expressly address the aetiology of the injury cannot be treatment ‘in respect of…’ or ‘in relation to…’ the injury.
There is nothing in section 16 or in the Act generally that supports this further gloss imposed by the Tribunal on section 16.
Question of law 7:
The Tribunal wrongly took the position that the breast surgery in fact occurred in isolation from other therapies and as such was not part of an ‘integrated plan that involves the co-ordination of all providers”. The Tribunal failed to consider the various historical therapies the Applicant had previous undertaken without much success in pain relief.
There requirement that any treatment caught by section 16 must be part of an integrated plan is not supported by anything in section 16 or the Act generally and is a further gloss imposed by the Tribunal on section 16.
The Tribunal wrongly took the position that the integrated plan must be ‘a plan for the permanent improvement in the health of an employee’ and thus excludes treatment for pain relief that does not result in a permanent improvement of the underlying compensable condition. This is a further gloss imposed by the Tribunal on section 16 for which there is no basis in the section or the Act generally.
Question of law 8:
The actual or apprehended bias of the Tribunal was demonstrated by the sum total of its actions including:
(a) The aggressive manner in which the Tribunal cross examined the Applicant [11/11 18:20ff][11/11 21:40- 24:40];
(b) The Tribunal’s decision to usurp the role of counsel for the Respondent in carrying out two lengthy period s of cross examination of the Applicant, first during the hearing and secondly during the resumed hearing;
(c) The Tribunal’s critical comments of counsel for the Respondent to the effect that she was not doing her job properly in not having pursued some of the lines of cross examination were adopted by the Tribunal [11/11 30:5]:
(d) The decision to resume the hearing after having reserved her decision for the express and declared purpose of taking issue with much of the Applicant’s evidence;
(e) The factual erroneous assertion that much of the summons materials perused by the Tribunal after reserving her decision, was inconsistent with the Applicant’s evidence [11/11 20:25-21:5];
(f) The factual erroneous statement that there were many other orthopaedic surgeons who had not supported the breast reduction surgery [11/11 29:20];
(g) The factually erroneous propositions put to the Applicant for adoption during the resumed hearing cross examination which the Tribunal had the retract [11/11 20:35ff];
(h) The sarcastic statement to the Applicant that lots of people complain about Comcare but they still lodge claims [25:45];
(i) The adoption of meritless and opportunistic construction of section 16 set out above, for the purpose of rejecting the claim;
(j) The adoption by the Tribunal of the plainly erroneous notion that the Applicant put its case on paragraph 4(b) of the definition, for the purpose of rejecting the claim;
(k) The misrepresentation by the Tribunal of the events surrounding the end of the resumed hearing;
(l) The attribution of dishonesty and long term conspiracy plans by the Applicant to defraud Comcare;
(m) The Tribunal’s Freudian slip at Tran 29:45 when the Member admitted that she had already determined the matter before the completion of the evidence and submissions;
(n) The attribution to the Applicant of a denial of any interest in the cosmetic benefit of the process, which is so factually erroneous that it could only have been intended to construct another straw man argument [4:35][5:10][37:15][49:10][49:35];
These same actions caused the Applicant to hold a reasonable apprehend bias in the form of predetermined view of the case and a hostile attitude towards her.
Question of law 9:
The denial of procedural fairness occurred at several points in the hearing below:
(a) The Tribunal’s refusal to allow the Applicant or her representatives to be heard on her application that the Member recluse herself;
(b) The failure of the Tribunal to record the oral decision in which the Member refused to recluse herself;
(c) The failure to first put to the parties for further submissions or evidence the various glosses that the Tribunal read onto section 16(1);
(d) The manner in which the Tribunal usurped the role of counsel for the Respondent and the protracted cross examination of the Applicant by the Tribunal;
(e) The failure to provide a reasonable opportunity for the Applicant to complete her evidence in responding to remaining concerns raised by the Tribunal;
(f) The personally stressful circumstances in which the Applicant was recalled at short notice to resume her evidence after the parties had closed their cases.
Question of law 10:
The unreasonableness of the decision arises from the total effect of the above grounds and includes the defective statutory interpretation and wrong fact finding processes and bias inherent in the finding on credit against the Applicant.
Applicant’s submissions summarised
45 The applicant divided her ten questions of law into four main categories:
(a) whether the AAT failed to understand the case as put by the applicant and hence failed to address those arguments seriously advanced by the applicant (questions of law 2, 3 and 10) and as a consequence whether the AAT applied the wrong statutory provisions in its determination of the case (question of law 1);
(b) whether the AAT wrongly construed and applied various provisions of the SRC Act (questions of law 4, 5, 6 and 7);
(c) whether the AAT denied the applicant procedural fairness (question of law 9); and
(d) whether the AAT approached the matter with a bias, actual or apprehended (question of law 8).
Question of law 1
46 Question of law 1 was said by the applicant to be based on the simple proposition that the AAT wrongly applied paragraph (b) of the definition of ‘medical treatment’ when the applicant’s case was put on the basis that paragraph (a) of that definition applied. The applicant made the following submissions concerning paragraphs (a) and (b).
47 The applicant submitted that the difference between the two paragraphs is that:
paragraph (a) applies where the “medical treatment” was carried out by a qualified doctor; and
paragraph (b) applies where the “therapeutic treatment” as opposed to “medical treatment” is carried out “at the direction of” a medical practitioner.
48 The applicant also drew attention to the definition of “therapeutic treatment” in s 4 of the SRC Act (see above) and that it included diagnostic tests and analysis.
49 The applicant submitted that the definition of “medical treatment” in s 4 uses the term “medical treatment” in relation to treatment by medical practitioners (paragraph (a)). It uses the term “therapeutic treatment” in two different circumstances. First, treatment by physiotherapists, chiropractors, osteopaths and masseurs (paragraph (d)). Secondly, other therapeutic treatment, which includes diagnostic tests and analysis obtained at the direction of a medical practitioner (paragraph (b)).
50 There is a clear differentiation between treatment by medical practitioners (paragraph (a) of the definition of “medical treatment”) and treatment and tests by non-medical practitioners, which is described as “therapeutic treatment”.
51 Paragraph (b) of the definition of “medical treatment” acts to limit Comcare’s liability or exposure to those diagnostic tests and analysis and other treatment by non-medical practitioners (except physiotherapists, chiropractors, osteopaths and masseurs) that were obtained “at the direction” of a medical practitioner.
52 The concept of treatment of any kind being “at the direction of” a medical practitioner occurs only in the context of therapeutic treatment in paragraph (b).
53 It was common ground that the applicant had her medical treatment by and under the supervision of a medical practitioner (the plastic surgeon, Dr Milovic). The treatment is therefore “medical treatment” within the meaning of paragraph (a). It is not therapeutic treatment within the meaning of paragraph (b) and as such no “direction” is required.
54 The AAT wrongly represented that the case fell to be determined under only paragraph (b) of the definition of “medical treatment” in s 4 and then acted upon a wrong premise in coming to a finding that there had been no “direction” as such for the applicant to undertake the surgery.
55 The applicant submitted that the AAT’s finding that the treatment was unreasonable was tainted by its exclusive focus on the notion of “therapeutic treatment” under paragraph (b). The applicant submitted that this “major and obvious error” is a sufficient basis to set aside the AAT’s decision.
Questions of law 2, 3 and 10
56 The applicant submitted that she underwent her operation because her large breasts had increased the pain on the accepted injury to her shoulder and neck. She submitted that it had nothing to do with general weight reduction. The applicant contended that the AAT “wrongly and persistently” attributed her motivation to be general weight reduction and then found, not surprisingly, that it was not reasonable treatment for this purpose within the meaning of s 16(1) of the SRC Act. She submitted that the AAT misunderstood the nature of her case, which was based not on general weight reduction but on a claim to recover the costs of surgery in relation to her compensable injuries.
Questions of law 4, 5, 6 and 7
57 The applicant’s primary motivation for the operation was to relieve the pain concerning the injuries in her neck and shoulders. She did not deny that a breast reduction would also provide collateral cosmetic gains, but this was not her primary motivation. The AAT wrongly and inconsistently held that the primary motivation was cosmetic.
58 The applicant submitted that, in order to discount the evidence of the medical practitioners to the contrary, the AAT went to the extreme of positing a long term “conscious conspiracy” by her to trick the various specialists concerning her true motivations. This formed part of the applicant’s bias claims.
59 The applicant further submitted that the AAT misconstrued s 16(1) in proceeding on the basis that:
(a) her motivation for the treatment was determinative of whether the medical treatment was reasonable treatment for her injuries, whereas the important view is that of the treating medical practitioner;
(b) the presence of any collateral cosmetic gain was fatal to the reasonableness of the treatment for pain relief of the applicant’s injuries;
(c) no treatment could be reasonable if the motivation for the treatment was first raised by the patient and not the doctor;
(d) the applicant had to pursue “every” therapeutic option before the breast reduction could be reasonable treatment;
(e) the surgery could only have been reasonable medical treatment if the referral to the plastic surgeon had been by an orthopaedic surgeon;
(f) treatment could not be reasonable treatment unless the treating doctor reported explicitly that the treatment was for the compensable injury in terms of the aetiology of the injury; and
(g) treatment could not be reasonable medical treatment unless it formed part of some wider treatment plan that was also reasonable.
Questions of law 8 and 9
60 In oral address, Mr Robinson SC submitted that it was not necessary for the Court to determine the allegations of actual and apprehended bias if the applicant succeeded on one or more of her other grounds of appeal, particular those in relation to question of law 1. Mr Robinson also confirmed that the applicant did not seek an order that, if the applicant was successful in her appeal, the matter should be remitted for reconsideration by a differently constituted tribunal. Mr Robinson accepted that it was a matter for the President of the AAT to determine that issue in the light of the Court’s reasons and in the event that the appeal was successful.
61 The applicant submitted that the following matters supported her claims of actual and appended bias:
the aggressive manner in which the AAT cross-examined her;
the AAT’s decision to “usurp” the role of Comcare’s counsel in carrying out two lengthy periods of cross-examination of the applicant, first during the hearing and secondly during the resumed hearing;
the AAT’s critical comments of Comcare’s counsel to the effect that she was not doing her job properly in not having pursued some of the lines of cross-examination adopted by the AAT;
the AAT’s decision to resume the hearing after the decision was reserved for the express and declared purpose of taking issue with the applicant’s evidence;
the factually erroneous assertion that much of the summons materials reviewed by the AAT after the decision was reserved was “inconsistent with” the applicant’s evidence;
the factually erroneous statement that there were many orthopaedic surgeons who had not supported the breast reduction surgery;
the factually erroneous propositions put to the applicant for adoption during the cross-examination at the resumed hearing, which the AAT had to retract;
the sarcastic statement to the applicant that lots of people complain about Comcare but they still lodge claims;
the adoption of a “meritless and opportunistic construction” of s 16 of the SRC Act for the purpose of rejecting the applicant’s claim;
the AAT’s adoption of the “plainly erroneous notion” that the applicant put her case in reliance on paragraph (b) of the definition of “medical treatment” in s 4 of the SRC Act for the purpose of rejecting the claim;
the AAT’s misrepresentation of the events surrounding the end of the resumed hearing; and
the AAT’s findings of dishonesty and long term conspiracy plans by the applicant to defraud Comcare.
62 In support of her claims of actual and apprehended bias, the applicant also relied on:
what was described as the AAT’s “Freudian slip” when the AAT member admitted that she had determined the matter before the completion of the evidence and submissions;
the AAT’s attribution to the applicant of a denial of any interest in the cosmetic benefit of the process, “which is so factually erroneous that it could only have been intended to construct another straw man argument”;
the AAT’s criticisms of Comcare’s experienced counsel for being insufficiently rigorous in exposing the alleged weaknesses in the applicant’s case, which resulted in the AAT member personally conducting two lengthy cross-examinations of the applicant; and
the AAT demonstrating “unacceptable levels of aggression towards the applicant”, which included making findings on credit that had no rational underpinning.
63 In oral address, Mr Robinson SC relied upon the following additional matters in support of the claims of actual and apprehended bias:
(a) the AAT member’s statement in the course of questioning the applicant that the member had “been asked to consider what is reasonable treatment, and the case law says it’s not a question of you picking which one is better than the other”;
(b) the “aggressive tone” of the member in questioning the applicant about the extent of her pain;
(c) the member’s insensitivity to the applicant’s personal circumstances in having unexpectedly to look after two small children because of a death in the family;
(d) the member’s exchange with the applicant’s counsel regarding the applicant’s motivation and the absence of a report from an orthopaedic surgeon supporting the surgery; and
(e) the member’s further exchange with counsel as to whether or not the member had a “neutral perspective”.
64 The applicant submitted that her denial of procedural fairness ground had two components:
(a) the member’s refusal to allow the applicant’s counsel to be heard on the issue of why she should recuse herself; and
(b) the AAT included new allegations and arguments of law in the decision that had not been raised in the hearing and to which the applicant had no opportunity to respond.
Comcare’s submissions summarised
65 Comcare submitted that the relevant issues were:
(a) whether the applicant’s complaints regarding the AAT’s approach and consideration of the matter disclose questions of law arising out of the AAT’s decision; and
(b) if so, would the conclusions and decision have been the same such that the ultimate outcome was unaffected.
66 Broadly, Comcare’s submissions on the various questions of law were as follows.
Questions of law 1-3 and 10
67 The applicant has construed the AAT’s reasons as a failure on its part to understand her case. This is referred to in the context of the AAT confining its consideration of the definition of medical treatment to paragraph (b) of the definition in s 4 and whether the applicant underwent the breast reduction as reasonable treatment for the accepted injuries or for some other reason (i.e. general weight reduction).
68 The parties approached the question of which definition of medical treatment applied differently. The AAT expressly dealt only with paragraph (b) of the definition. Comcare submitted that the issue was whether the substance of what was considered by the AAT against paragraph (b) would have had any bearing on the AAT’s decision if it had also expressly considered paragraph (a). Comcare contended that the ultimate conclusion would have been unaffected, with the consequence that any error is immaterial.
69 Comcare further contended that the AAT understood that the applicant’s case was put under paragraph (a), but the AAT was not obliged to mention and expressly deal with paragraph (a).
70 Comcare acknowledged the need for the AAT to address a party’s submission which is of substance or would have affected the outcome, but not necessarily to identify it in the same or similar terms and then expressly address and resolve any such submission.
71 Comcare submitted that, in substance, the AAT had regard to the medical evidence that supposedly disclosed the “advice” to the applicant in support of the surgery and also the applicant’s own evidence in this regard. Although considered in the context of paragraph (b), and whether there was a “direction”, the AAT found that the applicant received no such advice in relation to her claimed condition. This was said to be based on the AAT’s findings that:
(a) Dr Donaghy sent the applicant to plastic surgeons by way of a referral;
(b) Dr Coyle was not one of the applicant’s treating doctors and he was not able to give her advice regarding treatment (even if he considered breast reduction would be beneficial);
(c) Dr Macauley could not have “advised” the applicant and did nothing more than support the applicant’s decision to undergo breast reduction because she had already decided to have and arranged for the surgery before she saw Dr Macauley; and
(d) neither Dr Milovic nor Dr Taylor considered breast reduction surgery was specifically treating the applicant’s compensable injuries.
72 Having regard to the AAT’s consideration and assessment of the evidence that was relied upon in support of the applicant’s contention, Comcare submitted that the AAT did, in substance, address and resolve the applicant’s case.
73 Ultimately, the AAT found that the breast reduction was not in relation to the compensable injuries. There were several bases for that finding, not all of which were confined to the medical evidence. Consideration was given to whether the treatment (however characterised) was “in relation to” the injuries. That, Comcare submitted, was the correct issue to be resolved, not whether it was based on advice or under direction. Even if the process by which the decision was reached ought to have been better or clearer, Comcare submitted that the outcome would have been the same based on the AAT’s evaluation of the evidence. Accordingly, Comcare submitted that any error on the part of the AAT concerning paragraph (a) is not material having regard to the AAT’s subsequent finding that the treatment was not reasonable and also its finding that the applicant underwent the breast reduction surgery for a purpose other than treating her compensable injuries.
74 Regardless of whether an error lies in the process undertaken by the AAT, Comcare submitted that it must be shown that the decision was affected by the error, not the reasons in support (from which an appeal does not lie).
75 Ms Katavic, who appeared for Comcare, submitted that, if the AAT did err in not addressing the applicant’s case based on paragraph (a), the relevant test was whether that failure “would have affected the outcome”, citing Flick J’s observations in Australian Postal Corporation v Hughes [2009] FCA 1057; (2009) 111 ALD 579 at [61]. As will shortly emerge, I consider that those observations have been taken out of context and that the test is not as high as that put by Comcare.
Questions of law 4-7
76 Comcare was content to rely upon its outline of written submissions in respect of these matters. Ms Katavic confirmed that those submissions would not be expanded upon in oral address. Comcare’s relevant written submissions may be summarised as follows.
77 Comcare submitted that, in its consideration of the applicant’s claim, it was necessary for the AAT to determine whether or not the medical treatment (however defined) was “in relation to” her compensable injuries. Section 16(1) is not subject to any limitations regarding how the AAT must go about that determination. It is entirely a matter for the AAT to consider and evaluate the evidence in order to make such a determination. Nothing in s 16(1) limits the scope of matters that the AAT might have regard to.
78 Comcare submitted that the applicant’s complaint that the AAT erroneously imported some requirements into s 16(1) before it could be satisfied that the medical treatment was “in relation to” the injuries must fail because the AAT was entitled to have regard to:
(a) the applicant’s motivation for having the surgery;
(b) the intentions of Drs Milovic and Taylor in performing the surgery;
(c) the purpose of the surgery; and
(d) the reasonableness of the surgery as treatment of the compensable injuries.
79 Against its consideration of those factors, the AAT concluded that the breast reduction was not “in relation to” the compensable injuries.
80 Comcare submitted that the AAT was not prohibited from having regard to any of the factual matters raised by the applicant’s outline of argument in reaching a conclusion about whether Comcare should pay the cost of the surgery. In reaching its conclusion the AAT:
(a) did not accept that Drs Milovic and Taylor considered they were treating the applicant’s compensable injuries by performing the surgery;
(b) found there were other motivations for undergoing the surgery;
(c) considered it was significant that the applicant did not undergo any of the treatment recommendations made by other medical practitioners;
(d) determined that the delay in making the claim for compensation suggested the motivation for the surgery was cosmetic and not related to her compensable injuries;
(e) found that the applicant had not engaged in other methods to reduce her general body weight (as considered necessary by Dr Macauley), but addressed the weight of her breasts only; and
(f) followed Chowdhary in determining that the absence of any breast reduction as part of a treatment plan was indicative of it not being treatment in relation to her injuries.
81 Comcare submitted that, to suggest that the AAT’s findings reveal an error in its understanding of s 16(1), disenfranchises the AAT from its role of fact-finder in circumstances where the provision itself does not limit the scope of matters that may be considered in determining whether or not compensation is payable for treatment.
Questions of law 8 and 9
82 Comcare’s response to the allegations of apprehended bias and denial of procedural fairness focused on the following three matters:
(a) the AAT’s conduct regarding its review of the summons material from the Garema Place Medical Clinic;
(b) the recall of the parties to consider concerns held by the AAT following that review; and
(c) the AAT’s adjudication on the issue of bias.
83 Comcare submitted that the AAT’s conduct and treatment of the summons material was consistent with the objectives set out in s 2A of the AAT Act and the procedural powers conferred by s 33 of the AAT Act (particularly s 33(1)(c)) that “the AAT is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”). Ms Katavic acknowledged in oral address that the AAT’s entitlement to ask questions of a witness was subject to procedural fairness requirements, including as to bias. Ms Katavic also emphasised that the applicant’s counsel did not intervene and make any formal objection to the AAT member’s lengthy questioning of the applicant at the resumed hearing. She also drew attention to the fact that no formal objection was taken in the applicant’s supplementary submissions to the fact that the AAT did not permit any re-examination of the applicant at the conclusion of the AAT’s lengthy questioning.
84 Comcare also submitted that:
(a) the summons material from the Garema Place Medical Clinic was an exhibit before the AAT and therefore was material which the AAT was obliged to have regard to;
(b) it was appropriate for the AAT to recall the parties to ventilate its concerns regarding the summons material;
(c) by reason of its recall of the parties and the questioning of the applicant in particular, the AAT considered the applicant was being afforded procedural fairness;
(d) by questioning the applicant, the AAT gave the applicant an opportunity to hear the AAT’s concerns regarding the summons material and to respond to those concerns;
(e) the applicant did not avail herself of that opportunity to its fullest extent;
(f) the applicant’s failure to fully utilize the opportunity afforded to her by the AAT did not amount to a denial of procedural fairness;
(g) the AAT was entitled to take into account the applicant’s evidence and make findings as to credit and reliability;
(h) the parties were afforded the opportunity to provide supplementary written submissions based on the additional evidence given on 11 November 2014 and both subsequently did so; and
(i) given the role of the AAT, the AAT was entitled to inquire into matters it considered relevant to its determination of the matter irrespective of the focus or direction taken by the parties’ representatives.
85 Having regard to the matters set out above, Comcare contended that none of the applicant’s complaints demonstrate any apprehended bias such that “a fair-minded lay observer might reasonably apprehend that the AAT did not bring an impartial mind to the resolution of the application based on the events of the resumed hearing”.
86 Comcare’s outline of written submissions did not address the applicant’s allegation of actual bias. However, in oral address, Ms Katavic emphasised that any such finding is “a grave and exceptional matter” and must be “firmly established”, citing NADR v Minister for Immigration and Multicultural Affairs [2002] FCA 361 at [16] per Emmett J.
Consideration
87 It is appropriate to commence with some further observations regarding the original notice of appeal. As noted above, it contained no less than 76 paragraphs which purported to identify the grounds of appeal. This drafting approach bears some resemblance to that which was criticised by Jagot J in Munswamy v Australia Postal Corporation [2015] FCA 678 at [7].
88 As the Full Court recently stated in Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 322 ALR 254 (Haritos) at [91] it is “of great importance that the question or questions of law should be stated with precision” in a s 44 AAT Act appeal. The same may be said as to the requirement that the grounds of appeal be stated with precision. That is so for at least two reasons. The first is that, while questions of law are not to be distilled from the grounds of appeal (see Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 at [21] per French CJ, Gummow and Bell JJ), grounds of appeal may nevertheless form part of the material to which reference may be made in a case of doubt as to whether a notice of appeal truly raises a question of law (see Haritos at [94]).
89 Secondly, the need for the grounds of appeal to be stated with precision reflects the fundamental functions of a notice of appeal. In R v JS [2007] NSWCCA 272; (2007) 230 FLR 276 at [57]-[69], the Court of Criminal Appeal of New South Wales, per Spigelman CJ (with whom Mason P, McClelland CJ at CL, Hidden and Howie JJ agreed), identified the following three functions of a notice of appeal where an appeal is limited to questions or errors of law:
(a) it invests the appellate court with jurisdiction;
(b) it identifies and, subject to permitted amendment, confines the issues which the appellate court must determine; and
(c) it provides notice to the respondent of the case he, she or it must meet.
90 The Full Court expressly approved this analysis in Haritos at [109]. The analysis highlights the need not only for questions of law to be stated with precision, but also grounds of appeal.
91 It is convenient to determine the appeal by reference to the four categories of questions of law raised by the applicant.
Question of law 1
92 There are two primary aspects of this question. The first is whether the AAT addressed the way the applicant put her case and, in particular, her reliance on paragraph (a) of the definition of “medical treatment”. If that matter is determined in the applicant’s favour, the second matter is whether the AAT’s error is material.
93 In my respectful view, there is little or no doubt that, inexplicably, the AAT failed to address the case as put by the applicant. Comcare did not dispute, either below or in the appeal, that the applicant’s case relied upon paragraph (a). Comcare put its own case in exclusive reliance on paragraph (b). As the AAT’s reasons for decision reveal, the AAT considered and determined only Comcare’s case. Notably, the AAT made no express reference at all to paragraph (a) in its reasons for decision despite the fact that this provision was at the heart of the applicant’s case.
94 Nor was the applicant’s case as put implicitly addressed by the AAT. I reject Comcare’s submission that [3] of the AAT’s reasons for decision demonstrates that it “clearly understood” that the applicant’s case was put under paragraph (a). No inference can be drawn from the wording of [3] as to which particular paragraph of the definition of “medical treatment” the member had in mind when she purported to summarise the applicant’s case.
95 The critical and perhaps more contestable issue, however, is whether the AAT’s patent error was material. For the following reasons, I consider that it was.
96 The AAT’s error was not simply a failure to address and determine a substantive submission advanced on behalf of the applicant. The error was more fundamental. It involved a total failure to address and determine the applicant’s case as put.
97 Although the parties differed in their primary reliance on paragraphs (a) and (b) respectively of the definition of “medical treatment” in s 4, it is evident from each of their statements of issues, facts and contentions as filed in the AAT that there was broad agreement between them as to the nature of other issues which fell to be determined.
98 The applicant’s statement of issues, facts and contentions identified the following issues as relevant:
1. Whether the applicant is entitled to compensation for costs associated with breast reduction surgery by Dr Milovic, Plastic Surgeon on 2 November 2009. This requires consideration of:-
(a) whether the surgery was ‘in relation to’ the Applicant’s injury; and
(b) whether the surgery was treatment reasonable for the Applicant to obtain in the circumstances.
99 In its statement of issues, facts and contentions, Comcare identified the relevant issues in precisely the same terms.
100 Thus the significant difference between the parties was the premise upon which those issues fell to be determined. For the applicant, that premise was paragraph (a). For Comcare, that premise was paragraph (b). The critical question is whether those different premises could have any impact upon the otherwise agreed remaining issues which the AAT had to determine.
101 For the following reasons, that question should be answered in the applicant’s favour.
102 First, I do not accept Comcare’s submission that the test is whether the AAT’s error would have affected the outcome. The correct test is to ask whether the AAT’s error could have affected the outcome.
103 In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Toohey and Gaudron JJ made the following observations at 384 which, although directed to the need for an error of law to be material for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth), are equally applicable to a s 44 AAT Act appeal:
For an error of law to constitute a ground of review under s. 5(1) of the A.D.(J.R.) Act it is necessary that “the decision [involve] an error of law”: s. 5(1)(f). For an error of law to be involved in a decision something more than the mere occurrence of error is necessary. The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute. Conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred. This approach may be compared with the operation of the rules of natural justice where an allegation is made to which a person has no opportunity to respond. …
(Emphasis added).
104 A similar test was approved by the Full Court in Bridges v Minister for Immigration and Multicultural Affairs [2001] FCA 1647; (2001) 114 FCR 456, in the context of an appeal from a judgment of a judge of this Court who dismissed an appeal on a question of law under s 44(1) of the AAT Act. At [10], Sackville, Kiefel and Hely JJ identified the correct test as follows:
The governing principle is that a decision of an administrative tribunal will be set aside for error of law if it can be shown that the error could have affected the outcome of the case, that is that a different result might have been reached had no error of law been made.
Justices Nicholas and Robertson described the test in similar terms in Gilkinson v Repatriation Commission [2011] FCAFC 133; (2011) 197 FCR 102 (Gilkinson) at [30].
105 Secondly, it is telling that, in considering whether the breast reduction surgery was “in relation to” the compensable injuries and also whether that surgery was treatment that was “reasonable” for the applicant to obtain in the circumstances for the purposes of s 16 of the SRC Act, the AAT proceeded on the basis that the surgery was a “therapeutic treatment” within the meaning of paragraph (b). The AAT’s consideration of those matters was coloured by its belief that the surgery constituted a “therapeutic treatment”. There is some uncertainty as to whether that consideration would have been the same if these matters had been considered by the AAT through the prism of paragraph (a).
106 There are at least two relevant differences between paragraphs (a) and (b):
(a) no issue of “therapeutic treatment” is raised by the wording of paragraph (a); and
(b) as Hill J observed in Thiele at [20], another difference “is that the medical or surgical treatment must be ‘by, or under the supervision’ of the doctor to fall within paragraph (a) whereas the therapeutic treatment referred to in paragraph (b) need only be shown to have been obtained ‘at the direction’ of the doctor”.
107 The AAT’s exclusive focus on paragraph (b) meant that it addressed issues which it considered were presented by that particular definition of “medical treatment”, which then influenced its findings as to whether Comcare was liable for that surgery under s 16 of the SRC Act. For example, at [41] of its reasons for decision, the AAT accepted that Dr Milovic and Dr Taylor had “directed” the applicant to undergo breast reduction surgery. While such a finding was relevant to the way that Comcare put its case, it was irrelevant to the applicant’s case under paragraph (a). There could be no dispute that, for the purposes of that provision, the applicant had undergone surgical treatment in the form of breast reduction surgery by, or under the supervision of, a legally qualified medical practitioner, namely Dr Milovic. Both Dr Milovic and Dr Taylor had advised the applicant to proceed with that treatment on the basis that it was likely to help relieve her pain.
108 The AAT’s exclusive focus on paragraph (b) led it to dwell on matters arising from its assumption that the breast reduction surgery was a “therapeutic treatment” for the applicant’s compensable injuries.
109 For example, the AAT’s finding in [44] of its reasons for decision that neither Dr Milovic nor Dr Taylor considered breast reduction surgery was specifically treating the applicant’s compensable injuries, or symptoms that resulted from those injuries, was driven by the AAT’s assumption that this surgery was a “therapeutic treatment”. The same assumption seems to have informed the AAT’s finding in the same paragraph that the evidence suggested that neither of those doctors “even knew what the pathological nature of Ms Howes’ compensable injuries were at the time they directed her to undergo the procedure”. The AAT found that these doctors had advised breast reduction surgery because it “may help neck and back pain caused by heavy breasts, not caused by C5-C6 disc prolapse or by impingement and subacromial bursitis”. The AAT found that the surgery was recommended by both these doctors “as a way of relieving pain in the neck and shoulders due to excessive weight of her breasts”.
110 It is not easy to reconcile those findings with all the evidence. In particular, there was evidence before the AAT which indicated that both these doctors considered that breast reduction surgery would assist the applicant in dealing with her C5-C6 disc injury. For example, in the case of Dr Milovic, his file relating to the applicant (which was produced on summons and was in evidence before the AAT), included a document entitled “Procedural Consent Form” in which the applicant herself had written that Dr Milovic had explained to her that she had the following condition:
Breasts large & heavey (sic) requiring reduction. C5/C6 disc injury – reduction will assist.
111 Perhaps even more significantly, in his letter dated 22 July 2009, which was written to the applicant’s general practitioner, Dr Milovic wrote:
I believe that Roseanne would benefit from bilateral breast reduction and I believe that she will have a relief of the pain in her shoulders and back after this procedure.
(Emphasis added).
112 And in the case of Dr Taylor, in his report dated 15 September 2009, which was also written to the applicant’s general practitioner, express reference was made to the applicant’s suffering from “neck and upper back pain, shoulder grooving” and that she also felt that her breast size exacerbated her existing right shoulder problem. Dr Taylor acknowledged that the applicant needed to lose weight but he said that breast reduction could be done now “and would help her exercise and lose weight”. He also advised that he expected that the applicant would “find an improvement in her neck and back pain from the reduction weight (sic)”, in the context of her undergoing breast reduction surgery.
113 It is unnecessary in this appeal to reach a concluded view as to whether or not the AAT erred in disregarding this evidence in reaching the findings that it made in respect of paragraph (b). The relevant issue is that it is at least possible that the AAT may have reached different findings, having regard to this evidence, if it had focused its attention on the way that the applicant put her case, namely that she had undergone surgical treatment by Dr Milovic, which was supported by Dr Taylor, and she maintained that this treatment was in relation to her compensable injuries and was reasonable.
114 Thirdly, at [45] of its reasons for decision, the AAT acknowledged that it was arguable that Drs Milovic and Taylor directed the applicant to undergo breast reduction surgery to treat excess weight, “which was an issue that needed addressing as a prerequisite to the treatment of the compensable conditions”. But the AAT then added at [46] that, even if that was so, the applicant’s claim would fail as she found that the primary reason for the applicant undertaking the breast reduction “was more likely to be cosmetic” and also because “such a procedure was not reasonable treatment for excessive weight, even if the weight loss was required urgently”.
115 As noted above, the AAT embarked upon a detailed analysis with a view to determining the purpose for which the breast reduction surgery was undertaken. It concluded that the applicant underwent breast surgery “primarily for cosmetic reasons”. It acknowledged that the applicant may have thought that the surgery might assist her neck pain by reducing some of the weight in her breasts, but it added that “surgery is not therapeutic merely because it may provide some benefit to the applicant’s compensable injuries”. It concluded at [47] that the applicant would have undergone breast reduction surgery in early November 2009 regardless of whether it may or may not have helped relieve her pain.
116 The emphasis of the AAT’s analysis on the issue of purpose was very much on the applicant’s motivation in having the surgery, rather than upon the advice she received that she should undergo that surgery as it was likely to benefit her back and shoulder pain.
117 The AAT’s concentration on the applicant’s motivation for having the surgery (as opposed to the advice given by Dr Milovic and Dr Taylor), is reflected in the weight it attached to the fact that the applicant failed to mention the breast surgery to numerous medical practitioners who treated her in the period from September 2010 to 27 December 2012, i.e. after the operation had taken place. In [66] of its reasons for decision, the AAT described as “unusual” that the applicant had not mentioned the operation when she was providing the history of her treatment of her injuries. It concluded that the likely reason why the surgery and its benefits were not referred to in any of the medical reports during that post-operation period “was because Ms Howes did not regard the surgery as a treatment for her compensable injuries”. This fortified the AAT’s conclusion that the applicant had not undergone the procedure for the primary purpose of treating her compensable injuries.
118 It is unclear whether these matters would have figured so prominently if the AAT had focused on paragraph (a) and not merely paragraph (b).
119 Fourthly, as is evident from the terms of the AAT’s reasons for decision (see, for example, [69]), in determining whether the breast reduction surgery was “reasonable” the AAT posed the relevant question as “whether weight reduction treatment was reasonable therapy for Ms Howes’ compensable injuries, and if so, weather (sic) breast reduction surgery was a reasonable form of therapy to treat excessive weight”.
120 The AAT’s approach to this issue was directed to its earlier finding that the surgery was a “therapy” to reduce the applicant’s excessive weight. The AAT found at [70] that Ms Howes’ weight gain after December 2008 was as a result of medications which she took to relieve the pain from her compensable injuries. In the event, however, the AAT stated at [78] that it made no finding as to whether reduction was a reasonable treatment for the compensable injuries because, even if it were, the claim would fail because the breast reduction surgery was not the most cost effective means of treating the applicant’s excessive weight. In concluding that the surgery was not “reasonable” for the purposes of s 16, the AAT also took into account its finding that the surgery was not part of the applicant’s treatment plan. In reaching that conclusion, the AAT applied Chowdhary. The member viewed that decision as important because of the emphasis which it placed on “the importance of an appraisal and/or indication that the treatment is part of a plan, for permanent improvement in the health of an employee” (see [85]). It added at [86] that this was particularly important “when costly expenditure is contemplated”.
121 Chowdhary related to a claim to be compensated in respect of physiotherapy treatment in respect of back pain which the claimant said was associated with her employment as a clerical assistant in the National Library. One of the issues in Chowdhary was whether the applicant there had refused or failed, without reasonable excuse, to undertake a rehabilitation program as required by s 37(3) of the SRC Act. The AAT found that the applicant did not have a reasonable excuse for refusing to undertake the rehabilitation plan proposed for her.
122 There were conflicting medical opinions before the AAT as to whether there was a need for the applicant to have physiotherapy as part of her medical treatment. On the question whether it was reasonable for the applicant to obtain physiotherapy treatment, the AAT said in obiter that, if it had jurisdiction to review the relevant decision, it would have found against the applicant on this issue. The applicant commenced physiotherapy after her initial back injury in 1987 and continued to receive it into 1996. The AAT’s reasons are set out in [53] of Chowdhary (which appears to be the paragraph relied upon by the AAT in this case):
… Dr Champion speaks of there being a need for “carefully appraised courses” of physiotherapy, but there is no evidence before us to suggest that there has been such an appraisal. In particular, there is no evidence of any plan to have the physiotherapy treatment accompanied by a course of physical exercise such that the applicant might become re-conditioned and better able to cope with pain and manage a return to work. While provision of temporary relief from pain through physiotherapy will in many circumstances qualify as medical treatment which it is reasonable for an employee to obtain, there will in some cases come a point where it is no longer reasonable unless it is part of a plan for permanent improvement in the health of the employee; (cf Re Payne and Comcare (Decision No 11624, 19 February 1997, at para 21ff).
123 It is evident that the relevant remarks in Chowdhary were directed to paragraph (b) of the definition of “medical treatment” and not paragraph (a). (Although it might be noted that in that case the AAT made express reference to neither of those paragraphs).
124 The AAT’s emphasis upon whether the breast reduction surgery was part of a plan appears to have resulted from its exclusive focus on paragraph (b). The AAT was critical of the fact that the applicant had not sought and obtained Comcare’s approval to the breast reduction surgery before it occurred. It found that this meant that Comcare was not given an opportunity to determine whether or not “the therapy is an appropriate part of the treatment plan for Ms Howes” (see [86]). The AAT then proceeded to find that, by deciding to have the breast reduction surgery when she did, the applicant “interfered with” Dr Damiani’s treatment, who recommended physiotherapy and hydrotherapy around the time the surgery took place.
125 For the purposes of this appeal, it is unnecessary to determine whether the AAT’s analysis of Comcare’s case was erroneous in law. What is important is that that analysis was driven by the AAT’s exclusive focus on paragraph (b) and in total disregard of paragraph (a). In particular, because of its exclusive focus on paragraph (b), the AAT failed to turn its mind to whether, in determining liability under s 16(1) in respect of medical treatment under paragraph (a) of the definition, it is relevant to make findings and take into account such matters as:
(a) the applicant’s motivation in deciding to have the breast reduction surgery; and
(b) whether the surgical treatment had to form part of some wider treatment plan for it to be considered to be “reasonable” for the purposes of s 16.
126 Whatever relevance these matters might have for the purposes of a claim made under paragraph (b) (which it is unnecessary to decide in this appeal), it is difficult to see their relevance to a claim which relies on paragraph (a). That is particularly so in the case here, where both Drs Milovic and Taylor advised the applicant that breast reduction surgery should benefit her pain relief.
127 All these matters demonstrate that the AAT’s failure to turn its mind to the way the applicant put her case could have affected the outcome. Consequently, applying the correct test as to whether or not an error is material, I find that the AAT’s error was material.
Questions of law 2, 3 and 10
128 In view of the applicant’s success in respect of question of law 1, it is strictly unnecessary to determine these other matters. However, because the proceeding will be remitted for reconsideration it may assist if I make the following general observations. First, I do not consider that the AAT erred in law in the manner claimed in question of law 2. In particular, I do not accept that the AAT approached the applicant’s claim on the basis that she contended that the surgery was for general weight reduction. It is evident from the AAT’s description in [25] of its reasons for decision of the applicant’s evidence as set out in her written statement dated 11 October 2013 that the AAT understood that the applicant was claiming that the breast reduction surgery had been undertaken to relieve the pain in her shoulders and neck. In this respect, I do not consider that the AAT failed to understand this aspect of the applicant’s claim (as opposed to her reliance on paragraph (a) of the definition of “medical treatment”). Rather, the AAT proceeded to make findings of fact (which would not be binding on a reconsideration) which resulted in this aspect of her claim being rejected because the AAT found that the applicant’s motivation for undertaking the breast reduction surgery was cosmetic (see [61]-[64] of its reasons for decision).
129 As to question of law 3, I consider that it adds nothing of significance to the matters raised by questions of law 1 and 2. It will be a matter for the AAT, in conducting the reconsideration, to determine what considerations are relevant or irrelevant having regard to the way in which the applicant’s case is put.
130 Question of law 10 adds nothing of substance to question of law 1.
Questions of law 4-7
131 Again, having regard to the applicant’s success in relation to question of law 1, it is strictly unnecessary to resolve these other matters. Nor is it desirable or appropriate to do so. That is because each of the matters raised by these questions of law arises from the AAT’s consideration of the case as put by Comcare. Because the AAT never addressed or determined the case as put by the applicant, it is mere speculation or conjecture as to whether it would have adopted the same approach in respect of these matters if it had properly appreciated and addressed the applicant’s case. The issues raised by questions of law 4-7 are, (in large measure) hypothetical and advisory. Moreover, the facts are not for this Court to find or evaluate for the first time in an “appeal” under s 44 of the AAT Act unless s 44(7) is satisfied (see Gilkinson at [30] per Nicholas and Robertson JJ).
Questions of law 8 and 9
132 As noted above, Mr Robinson SC submitted that it was unnecessary to determine the allegations of actual and apprehended bias in the event that his client was successful in his appeal relating to question of law 1. I agree. It might be observed, however, that the seriousness of those allegations and the adverse credit findings made by the AAT member against the applicant are matters which are likely to weigh in the President’s mind in determining how the AAT should be constituted for the purposes of the reconsideration.
Conclusion
133 For these reasons, the appeal should be allowed. The AAT’s decision should be set aside and the applicant’s application for review remitted for reconsideration according to law. Costs should follow the event. It will be a matter for the President of the AAT to determine whether that reconsideration should be conducted by a differently constituted tribunal.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. |
