Every dog may have its day, but for this Worker, today was not that day

20 August 2019

Therapy, treatment and rehabilitation for injured workers can take many forms, and in the view of one worker with PTSD, his psychiatric assistance dog Ted was all of that and more. However, on their interpretation of the Act, the AAT had a different view, finding that parliament did not intend to offer injured workers compensation for the cost of assistance animals.

In issue

  • Whether a psychiatric assistance dog is considered medical treatment, or an aid or appliance, under the Safety, Rehabilitation and Compensation Act 1988.

The background

Following an attendance at a large factory fire, the Worker (a firefighter) developed PTSD. Comcare accepted his claim under the Safety, Rehabilitation and Compensation Act 1988 (the Act), however refused to fund a claim for the care, upkeep, and training of the Worker’s dog, who was a psychiatric assistance dog. Comcare rejected this claim on the basis that Ted did not meet the definition of medical treatment, he was not obtained in relation to the compensable condition, and if Ted was considered medical treatment, he was not reasonable medical treatment in the circumstances (in accordance with s16 of the Act). Comcare also contended that Ted was not an aid or appliance for the purposes of the Act, as an aid must be something artificial in nature (in accordance with s39 of the Act).

The decision of the AAT

The AAT upheld Comcare’s decision.

Was there a right to claim under s16 of the Act?

To fall within the definition of medical treatment under the Act, Ted needed to be a form of Therapeutic treatment obtained at the direction of a legally qualified medical practitioner (s4(b) of the Act) as that was the only definition relevant to the Worker’s circumstances. Whilst a psychiatrist had certified that Ted would help the Worker’s PTSD and hyperarousal, there was no evidence that Ted was purchased as part of a treatment regime. Ted was not obtained at the psychiatrist’s direction, and instead was obtained as a family pet.

In any event, even if Ted was obtained at the direction of a medical practitioner, the Tribunal was of the view that an assistance dog is unlikely to satisfy the reasonableness requirement of s16, which required the treatment to be, to some extent, successful or effective in producing a result. This seemed unlikely as the evidence on the medical or psychiatric effectiveness of assistance dogs before the Tribunal was inconclusive.

The Tribunal noted that it would be unwise to suggest that a psychiatric assistance dog could never constitute medical treatment, but on the state of the evidence before it in the present proceedings the proposition is very doubtful.

Was there a right to claim under s39?

This required the Worker to establish that Ted was a means or source of help or assistance. Given the common understanding of the term aid or appliance, in addition to the fact that the intention of the section was to refer to inanimate objects, the Tribunal found that the inclusion of an assistance dog in the category aids or appliances is inconsistent. As the evidence was unclear on the extent to which dogs may aid people with psychiatric conditions such as PTSD, the Tribunal did not accept that Parliament could have intended animals to fall within s39.

The Tribunal then considered that even if Ted’s care and upkeep costs were recoverable under s39, to be considered an aid, Ted must be reasonably required by the Worker. In finding that Ted was not reasonably required, the Tribunal relied on the fact that he was not obtained for the purposes of medical treatment, in addition to the fact that there was no evidence that Ted seriously ameliorated the Worker’s symptomology or brought the Worker any distinguishable benefit beyond that which a typical dog owner would enjoy.

Interestingly, the Tribunal noted that it should not be doubted that animals can and do play a relevant role in the treatment, support, and rehabilitation of injured workers using the example of a Seeing Eye dog for a blind employee. The Tribunal also thought it was strange that Parliament had not made a provision in the Act for this kind of treatment, support, and rehabilitation.

Whilst the Tribunal admitted that there is a clear gap in the Act’s scope, the Tribunal maintained the view that Parliament has not intended to offer injured workers compensation for the costs of assistance animals and whilst they should have done so, that is not a licence for the Tribunal to change the intent of the law.

Implications for you

When approving costs associated with claims for compensation, claims handlers must interpret the relevant sections of the Act carefully. Although the benefit of a particular therapy or treatment may seem on the surface justifiable, it does not necessarily mean there is scope for that therapy or treatment to be covered with the ambience of the requisite Act.

This Decision also suggests that the current workers’ compensation legislation may be inept to deal with various advancements in treatment and therapies. The result of which may impact on the rehabilitation and recovery of the worker.

Brideson by guardian Lynette Brideson and Australian Capital Territory (Compensation) [2019] AATA 2314

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