What constitutes medical treatment
Whether a particular procedure is “medical treatment” is determined by application of the definition in s 4(1) and, in most cases, is a straight forward question of fact. The cases and examples discussed below may be of assistance in borderline cases.
"legally qualified medical practitioner" - paragraphs (a) & (b),
"legally qualified dentist" - paragraphs (c)
This phrase is not defined in the SRC Act but is discussed in the Comcare Operations Manual, volume 9, part 2, Medical Payments:
“A [legally qualified medical practitioner] is someone with the legal qualifications to practice medicine. An indication of a doctor's qualifications can be obtained by looking at the letters appearing after his or her name (such as MBBS, Bachelor of Medicine and Bachelor of Surgery (usual general practitioner (GP) qualifications). ...
Not all persons who have the title 'Doctor' are legally qualified to practice medicine. For example, a Doctor of Philosophy Degree (PhD) does not legally qualify a person to practice medicine, but does bestow the title 'Doctor'.”
The definition of “medical practitioner” in the Social Security Act 1991 also provides appropriate guidance as to its construction:
“medical practitioner” means a person registered and licensed as a medical practitioner under a State or Territory law that provides for the registration or licensing of medical practitioners;
Where the member is serving overseas, a “legally qualified medical practitioner or dentist” would also include a person licensed under the laws of that country, provided the licensing standards in that country are reasonably equivalent to those applying in Australia.
Similar considerations apply to a “legally qualified dentist” - paragraph (c).
For details of the qualifications of medical practitioners and dentists, see the separate discussion of “Medical Qualifications”.
"therapeutic treatment obtained at the direction of" - paragraph (d)
“At the direction of” means “advised, prescribed or ordered ... these terms having relatively well understood and not greatly dissimilar connotations in the context of doctor-patient communications as to the undertaking of treatment for an injury”. Direction must be more than mere “guidance” but does not require “monitoring, control or management by a doctor”: Comcare v Watson (1997).
"examination, test or analysis" - paragraph (e)
A distinction should be made between an examination conducted as part of general medical treatment, and that associated with Defence arranging for an independent medical examination for the purposes of determining initial or continuing liability or a client's degree of permanent impairment. The latter examination is covered by s57 of the Act and is not “medical treatment.
Similarly, a medical examination arranged by a client's legal representatives for medico-legal purposes is not “medical treatment” and would not generally be reimbursed by Defence: Comcare v O'Brien (1997). If the client is successful in an application to the AAT, medico-legal costs may be reimbursed by order of the Tribunal under s67 of the SRC Act.
Note however that, where a client or client's representative obtains a medical report (even if it is obtained for medico-legal or other purposes) which MCRS itself uses in processing a claim, MCRS will pay or reimburse the cost of that report.
"medical, surgical or other similar aid or appliance" - paragraph (f)
This would include, for example, orthopaedic shoes, hearing aids, crutches and wheelchairs.
Spectacles are an “aid or appliance” under this paragraph and also are “curative apparatus” under paragraph (h): Moore and Telstra Corporation Limited (1998).
"nursing care, ... whether in a hospital or otherwise" - paragraph (h)
A distinction should be drawn between nursing care and “attendant care” which provided for a client under s 29(3) for an extended period of time.
Note that the definition of “attendant care” in s 4(1) specifically excludes “nursing care” and that “nursing care” may be provided either in a hospital or in another environment such as the client's residence. For this reason, the boundary between the two forms of assistance is not necessarily easy to draw and is set by policy rather than by determination on a case by case basis.
As a matter of policy, a client requiring nursing services should be considered to be in “nursing care” for the first three months after their injury, whether they are in a hospital, nursing home or at home. However, after that period, where a client is being cared for in their own home, consideration should be given to the approval of attendant care services rather than continuing full reimbursement of nursing care services. Each case must, however, be considered on its own facts, and particular notice must be taken of any proven medical requirements for continuing, intensive nursing care.
Packaged dietary foods, recommended by a medical practitioner for weight loss and the relief of pain, are “medicines” in terms of paragraph (h): Pembshaw and Department of Defence (1996).
"curative apparatus" - paragraph (h)
The use of a TENS machine for pain management is medical treatment: Fe Capitle and Australian Postal Corporation (1995)
A vehicle which was modified to allow the applicant to drive her electric wheelchair on and off it, was held to be curative apparatus: Monk and Comcare (1996). NOTE that all claims involving provision of a vehicle must be referred to MCRS National Office for approval. Such approvals will only be considered if there is an unusually compelling, written justification of the reasonableness of the requirement.
"any other form of treatment that is prescribed" – paragraph (i)
This paragraph was inserted by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (No 144/2001) commencing on 1 October 2002. It was intended “to allow the definition to include therapeutic treatment by a range of health professionals, without the need for referral by a medical practitioner”. (Explanatory Memorandum, 49)
Regulation 17 has prescribed “Forms of medical treatment” as follows:
17(1)For paragraph (i) of the definition of medical treatment in subsection 4(1) of the Act, therapeutic treatment by, or under the supervision of, any of the following persons is prescribed:
(a)an occupational therapist;
(b)an optometrist;
(c)a podiatrist;
(d)a psychologist;
(e)a speech therapist.
(2)For subregulation (1), the person must be:
(a)registered under the law of a State or Territory providing for the registration of persons of that kind; or
(b)if there is no such law, a member of a relevant professional association.