February 18, 2020

Insurance | ACT

When is too much medical treatment enough?

On 22 January 2020, the Administrative Appeals Tribunal (the AAT) in Re Rope and Comcare [2020] AATA 59 (Rope) found that a high level of dependency on a particular type of treatment, without any apparent transition to self-reliance, is not reasonable to obtain in the circumstances.

Background:

Mrs Rope was involved in a relatively minor car accident in 1987 and suffered a neck injury. Over time, this resulted in the onset of numerous secondary conditions which were accepted as compensable by the insurer and included a depressive disorder.

By the time of the hearing, Mrs Rope had received over 600 sessions of psychological treatment in the last 27 years for her compensable depressive disorder. At the hearing, Comcare argued that it was no longer reasonable for her to receive compensation for psychological counselling because the treatment was simply not working, and hadn’t been for several years. On top of this, her counselling sessions had become primarily concerned with sustaining Mrs Rope’s grievances, not overcoming them.

AAT:

The AAT agreed with Comcare, noting that the psychological treatment itself appeared to be a vehicle for exacerbating the stress Mrs Rope experienced through her interactions with Comcare. The Tribunal also referred to the lack of coherence in some of the approaches taken by Mrs Rope’s medical/psychological team. Highlighting, in particular, the fact that several of her treating specialists, including her current psychologist, considered that her mental condition would improve if she ceased her interactions with Comcare, and they told her GP so. Unfortunately, her GP simply did not accept this and continued to support Mrs Rope’s dependency on her fortnightly counselling sessions.

What does it mean?

There are a number of considerations when determining whether someone should remain entitled to a particular type of medical treatment in long-tail schemes. In Mrs Rope’s case, the Tribunal was persuaded by:

  • the independent medical expert relied upon by Comcare, compared to the evidence of treaters relied upon by Mrs Rope;
  • Mrs Rope had become dependent on the counselling which inhibited her capacity to self-manage;
  • Mrs Rope was no better today than she was 20 years ago.

As Rope shows, it is worth considering whether claimed medical treatment is helping or hindering. Something that is creating a sense of dependence is, on the basis of this decision, likely to result in a finding that it is not reasonable medical treatment in all the circumstances.

If you would like assistance with making that call for one of your employees, get in touch with McInnes Wilson Lawyers.