COMPENSATION - medical expenses - vitamin and mineral supplements - reasonable expenses - nature of objective test - level of proof required

Safety, Rehabilitation and Compensation Act 1988 ss.4,16

Re Jorgensen and Commonwealth of Australia (1990) 23 ALD 321

The Nutrient Bible, Henry Osiecki, Bio Concepts Publishing (3rd edition)

The Physician's Handbook of Clinical Nutrition, Henry Osiecki, Bio Concepts Publishing (5th edition)

Encyclopedia of Natural Medicine, Michael Murray MD and Joseph Pizzorno MD, Little, Brown and Company (2nd edition)

7 September 1999 Senior Member J.A. Kiosoglous MBE Dr J. Linn (Member)

1. This is an application by Mr David Kentish (the applicant) for review of a decision by an authorised review officer (ARO) of the respondent dated 26 May 1998 (T14) which affirmed a decision of a delegate of the respondent dated 10 February 1998 (T5) that "ARX" and "Formula Four" are nutritional substances which are not reasonable medical treatment and therefore not compensable.

2. The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T15), together with 21 exhibits, 8 lodged by the applicant (Exhibits A1-A8) and 13 by the respondent (Exhibits R1-R13). In addition, the Tribunal heard evidence from the applicant. The respondent called Dr B. Byok, Occupational Physician, as a witness. The applicant represented himself and the respondent was represented by Mr K. Tredrea, of counsel.

3. The parties being in agreement as to the applicant's accepted degenerative back condition, that the applicant suffers pain and that the definition in s.4 of the Safety Rehabilitation and Compensation Act 1988 (the Act) is satisfied, the sole issue before the Tribunal is whether or not the prescribed substances "ARX" and "Formula Four" satisfy the requirements of sub-s.16(1) of the Act.

"16. (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment."

5. The applicant is aged 68 years and was employed by the respondent between 1949 and 1992. The applicant was involved in a motorcycle accident in 1952 in which he sustained an injury to his back. This injury was aggravated in 1956 by lifting heavy batteries at work. The parties being in agreement, the Tribunal finds that the description of the back injury contained in Dr P. Fry's report dated 12 June 1998 (Exhibit R10) is an accurate description of his back condition, namely,

"... The condition from which he suffers is degenerative disc disease at multiple levels in his back with secondary joint degenerative changes affecting the spinal levels.

I do not think the work related effects have ever entirely gone, any more than the naturally caused aspects of the situation have gone either. Both are permanent. There will be no change."

6. The applicant has had continuous chiropractic treatment since about 1979. In 1991 he commenced such treatment with Dr A.R. Human, Chiropractor, who, in addition to physical manipulation, prescribed compound vitamin and mineral supplements, "ARX" and Bioglan "Formula Four". The respondent paid for these supplements until a determination to cease doing so was made on 10 February 1998 (T5). This determination was affirmed upon review by an ARO dated 26 May 1998 (T14/22), who stated (inter alia):

"... both ARX and Formula Four are nutritional supplements which may benefit an individual's overall health but which are not reasonable for the treatment of the claimant's compensable condition. Compensation is not payable for the cost of correcting deficiencies in diet.

7. The applicant referred to the report of Dr A.R. Human dated 14 April 1998(T11) in support of his case. In this report Dr Human, who has been treating the applicant since 1991, stated (inter alia):

"ARX is a formula that contains specific nutrients including calcium, magnesium, vitamin C, manganese, and bioflavanoids which are necessary for the regeneration of cartilage, bone structure and connective tissue. It also has anti-inflammatory properties.

Formula Four is a Bioglan product which contains specific nutrients to support the immune function and general debility and the somatic effect of emotional stress.

These formulae were recommended in conjunction with dietary advice, Chiropractic spinal, pelvic and soft tissue therapy for the treatment of a chronic lower cervical and shoulder problem and lumbo-sacral regions."

8. Dr M.E. Taylor, a General Practitioner with a particular interest in nutritional medicine, prepared two reports. In the first of these dated 16 September 1998 (Exhibit A3) she stated (inter alia):

"I have been treating musculoskeletal problems for many years and I find that supplements of vitamin C, manganese and zinc, as in these supplements, are an essential part of musculoskeletal medicine as they dramatically improve the healing process. This occurs even in people who are eating a normal diet as the amounts of nutrients that are needed to enhance healing are above what is found in an average Australian diet. Baghurst and Dreosti found in CSIRO sponsored research that 86% of Australians do not get an adequate amount of zinc in their diet. If 86% of people don't get the RDI (recommended daily intake) level of zinc that is necessary for healing then the RDI is not available in an average diet and supplements are necessary for healing. ... I think it is reasonable and cost effective for his nutritional supplements to be paid as part of his compensation."

9. In a second report dated August 1999 (Exhibit A6), Dr Taylor stated (inter alia):

"Hair analysis on 13.4.99 revealed deficiencies of calcium, magnesium, zinc, manganese, cobalt, ybdenum and strontium. I therefore prescribed:

Organic mineral formula 2 capsules 3 times a day (or PicMins 1/day)

The pattern suggests low gastric acid causing malabsorption of many minerals so I suggest also ...

10. Mr Tredrea provided the Tribunal with medical reports by several doctors. Of these, the reports of Dr V. Nichols, General Practitioner, provided background as to the applicant's back condition, but are not directly relevant to the issue before this Tribunal.

11. Dr P.L. Fry, Orthopaedic Surgeon, prepared two reports. The first report dated 12 June 1998 (Exhibit R10) provides a description of the applicant's back problem. In the second report dated 30 November 1998 (Exhibit R11), he stated (inter alia):

As you will understand, I am an Orthopaedic Surgeon, and an expert consideration of these substances, their function and usage is not at all within my primary sphere of expertise. Even so, I do not think they are curative substances specific for the back condition that he has, they appear to be merely "health improvers". My view of the situation is therefore that the correct decision was in fact reached by GIO regarding funding. For an expert substance opinion I would suggest, if so desired, that a Consultant Physician, expert in this sphere, be asked."

12. Dr B. Byok, Occupational Physician, prepared a report dated 10 December 1998 (Exhibit R9) in which she stated (inter alia):

As far as I am aware standard medical treatment does not include the use of over the counter mineral and vitamin supplements. ...

I am not aware of any peer reviewed scientific papers which have looked at the efficacy of either of these compounds through a double blind randomised clinical trial with large enough patient samples to be statistically significant.

... It is not generally recommended that mineral and vitamin supplementation over and above a healthy diet as proposed by the Australian Nutrition Foundation's diet pyramid is needed by most Australians."

13. In oral evidence in support of her report, Dr Byok stated that the standard treatment of a degenerative lower back condition would be to reduce the pain through anti-inflammatory drugs and oral analgesics, use physiotherapy and chiropractic treatment, and develop coping strategies. She stated that she was not aware of the use of ARX and Formula Four in the treatment of lower back problems.

14. She stated that she could not find evidence of clinical trials, and that the description of ARX provided by the applicant (Exhibit A4) was not a scientific paper.

15. She stated that she did not have any objection to the applicant taking the supplements if they made him feel better, and noted that they did not cause him any harm. She agreed, following a question from the Tribunal, that the non-steroidal medications were not appropriate for the applicant due to the possible side effects and interaction with his other medications.

16. The Tribunal takes note of all the submissions put by the applicant, and commends him for the diligence and thorough manner in which he presented his case to the Tribunal. It does not attempt to set out his submissions in full, but summarises his evidence and submissions as follows.

17. The applicant gave evidence that ARX and Formula Four are treatments for the inflammation and pain resulting from aggravation of his compensable condition, and not for the degenerative back problem itself.

18. He stated that when he is not taking the supplements, the pain becomes constant, and he becomes immobile, requiring much more frequent trips to the chiropractor. He told the Tribunal that when he takes the supplements, he has a much better quality of life, and that within 2-3 days the depth of pain has eased, and has gone within 7 days.

19. He told the Tribunal that he does not want to take non-steroidal anti-inflammatories, as these can worsen the degradation of cartilage, and react badly with his other medication. He stated that the supplements were as effective as the non-steroidals, and that there was therefore no reason to change.

20. He stated in his evidence that taking the supplements improved his pain and hence his function and sense of well being, as a result of which he was able to reduce the frequency of attendance at the chiropractor. He referred the Tribunal to a graph that he had prepared (Exhibit A8) to demonstrate that the length of time between chiropractic visits increased significantly when he took the supplements.

21. He submitted that the Tribunal should regard him as being one of those people who required supplements above the average daily requirement of minerals and vitamins, as additional nutrients were required when something is wrong with the body. In response to the comment in Dr Byok's report (Exhibit R9) wherein she stated:

"It is not generally recommended that mineral and vitamin supplementation over and above a healthy diet as proposed by the Australian Nutrition Foundation's diet pyramid is needed by most Australians."

he contended that he was not in the same category as "most Australians" since the aggravation of his compensable condition caused an internal imbalance requiring further supplementation. He submitted that when he gets inflammation with pain, it causes him a lot of distress, and when he takes the supplements, his condition is relieved to the point that he can cope more easily.

22. He submitted that the Tribunal needed to take a global perspective on the possible benefits of such therapies. He submitted that it was significant that the supplements were not available over the counter, but were prescribed and supplied by a doctor. He further submitted that the Tribunal should prefer the evidence of Dr Taylor, as she is highly experienced in this area of medicine, and her evidence was that she has had successful results through the prescription of vitamins and minerals of the same constitution as the supplements.

23. He submitted that he had demonstrated that there is a clear link between the use of the supplements and his back condition, in that they seemed to be effective in the management of the pain associated with his back condition. He further submitted that there was no alternative to the supplements, as the non-steroidal treatments, whilst assisting with his pain, could react with medication taken for other reasons.

24. Mr Tredrea made submissions on behalf of the respondent which the Tribunal does not set out in full, but summarises as follows.

25. He submitted that ARX and Formula Four were not curative, had not been subjected to any clinical studies, and were not generally recommended. He referred to Dr Byok's report and evidence in support of this contention

26. Mr Tredrea submitted that the Tribunal should regard Dr Taylor's report (Exhibit A3) as containing only general statements, and that if indeed the applicant had a vitamin deficiency, he would need to establish that there was a material link between such deficiency and his back condition before compensation would be payable in this regard.

27. He submitted that sub-s.16(1) of the Act requires an objective test, and that the subjective beliefs of the applicant were not relevant. He further submitted that the fact that there was no objective medical evidence to support the contention that the supplements are of benefit meant that sub-s.16(1) of the Act could not be satisfied, as the treatment is not "reasonable". He referred the Tribunal to Re Jorgensen and Commonwealth of Australia (1990) 23 ALD 321 and Re King and Comcare (AAT 13350, 5 October 1998) in support of the objective nature of the test required by sub-s.16(1) of the Act.

28. The Tribunal notes the following passages from Re Jorgensen at p324 and p325 (inter alia) wherein Gray J (Presidential Member) stated:

"... I am prepared to accept that the applicant carries the onus of proof.

In my view, the question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical treatment at all, would have been better for a person suffering from the particular injury. The idea of reasonableness involves objectivity."

And from Re King at paragraphs 24 and 33 (inter alia),

"24. In determining whether a particular form of treatment is objectively reasonable, applying the test enunciated by Gray J in Jorgensen, we think allowances should be made in appropriate cases for different schools of thought within the medical profession. If a particular form of treatment is advocated by a significant minority of the medical profession, and is regarded by the majority as controversial, we do not think obtaining that form of treatment would not ordinarily be regarded as unreasonable. If, on the other hand, a patient undertakes treatment on the advice of a doctor whose views are at odds with the rest of the medical profession, one would have to conclude that it was not reasonable to obtain such treatment in the circumstances. Whether a particular form of treatment in particular circumstances enjoys sufficient support within the medical profession to be regarded as reasonable is a question of degree.

"33. ... Similarly medical treatment cannot be regarded as reasonably obtained for purposes of s.16(1) simply because an employee sincerely believes it to be of therapeutic value. If that were the case, individuals with extreme mental disorders would be able to waste substantial sums at Comcare's expense. The purpose of s.16(1) is to provide compensation for appropriate medical treatment, and not an indemnity against losses incurred as a result of mistaken beliefs, wishful thinking, or insane delusions..."

29. The Tribunal then turns its attention to the issue before it, namely, whether the supplements are reasonable medical treatment for the purposes of sub-s.16(1) of the Act.

30. The Tribunal considers that there is no question that the applicant considers the supplements to be of benefit. What is required of the Tribunal however, is an objective assessment of whether or not, in these particular circumstances, the supplements are reasonable.

31. Mr Tredrea submitted, on behalf of the respondent, that there was no evidence to support the proposition that the supplements did, as a matter of fact, increase the gap between chiropractic visits. The Tribunal notes however, that the applicant was firm under cross-examination that there had not been any other significant stressors in his life over the past six or seven years which could account for the variations in length between visits. The Tribunal also notes the applicant's careful research with regard to his health in general, and considers that it must regard the graph he produced (Exhibit A8) as being a reasonably accurate portrait of his chiropractic attendance and medication history.

32. The Tribunal considers the applicant to be a truthful witness who had invested a great deal of time in the preparation of his case, and finds that the evidence presented as to his medical history in the form of the graph is a genuine reflection of how his compensable condition affected his life. The Tribunal accepts the applicant's evidence that there were no other significant stressors in his life during the past six or seven years which affected his rate of attendance at the chiropractor to any significant degree, and the Tribunal so finds.

33. The Tribunal also considers that it is a reasonable inference to draw from Dr Taylor's report dated 16 September 1998 (Exhibit A3) that she is of the opinion that there is a direct link between the applicant's need for increased chiropractic treatment and the cessation of his supplement intake and so finds. Dr Byok was also in agreement that the supplements did not harm the applicant and that there is nothing wrong with him taking them if they make him feel better.

34. Mr Tredrea made much of the fact that there is little objective medical evidence available which supports the proposition that the supplements are of benefit. The Tribunal considers Dr Byok's research in this regard to be reliable to support the proposition that the wider medical community does not consider such treatments to be normal treatment, and that there is no objective medical evidence to establish a link between the treatment of the applicant's compensable condition and the supplements. Significantly, Dr Byok also stated that there was no evidence to disprove this link. This then becomes a question for the Tribunal of whether or not there is sufficient evidence to support this contention, and notes that the onus remains on the applicant (Re Jorgensen).

35. In Re King, the Tribunal set out the appropriate test to be applied, and in the Tribunal's opinion, the emphasis that must be given to that case, is that the question of reasonableness is one of a "particular form of treatment in particular circumstances". The circumstances in this present case seem to be significantly different to those considered in Re King. In that case, the Tribunal was concerned with allergies and vitamin therapies, and had highly questionable evidence from the treating doctor. There was also a preponderance of medical opinions in that case to the contrary. The Tribunal's reasoning in Re King must be seen in the light of the fact that there was overwhelming evidence to disprove the connection the applicant attempted in that case.

36. In this case however, Dr Taylor was not required for cross-examination, and there has been nothing put before the Tribunal that would discredit her opinion as to the link between the treatment of the pain aspect of the compensable condition and the supplements. It is apparent that it is a reasonable inference that the chiropractor, Dr Human, would also support such a position. Dr Byok also stated that there is no evidence to disprove the link. Dr Byok simply asserted that there was no evidence either way.

37. The Tribunal considers that the intention of the assessment to be made in relation to "reasonableness", as outlined in Re King, was not to limit such considerations entirely as to whether there is substantive medical evidence in the form of clinical trials and published papers, but to consider the constitution of "appropriate medical treatment" (Re King at paragraph 33). Compensation is clearly not available where there is simply a mistaken belief, wishful thinking or insane delusion, but will be available if, in the absence of definitive medical evidence such as that available in Re King, the weight of the evidence can satisfy an objective assessment that the treatment is of direct benefit to the treatment of the compensable condition.

38. The Tribunal considers that the medical evidence put before it cannot be considered to be definitive in either proving or disproving absolutely the connection between the applicant's compensable condition and the taking of the supplements and the Tribunal so finds. The Tribunal is not required to have "absolute" proof to satisfy sub-s.16(1) of the Act however, as that sub-section makes reference to "reasonable" treatment.

39. In such a circumstance, where there is no definitive objective medical proof either way, the Tribunal is left to make an assessment of what it does have before it in terms of evidence. What it does have, is the evidence of the applicant, as supported by Dr Taylor and Dr Human, that the pain associated with the compensable condition is relieved by the supplements.

40. The applicant was able to provide a detailed and well researched medical history (Exhibit A8), and also supplied the Tribunal with various references and text books to support his case, notably, "The Nutrient Bible", Henry Osiecki (BSc(Hons) Grad Dip Nutrition and Dietetics), Bio Concepts Publishing (3rd edition), "The Physician's Handbook of Clinical Nutrition", Henry Osiecki, Bio Concepts Publishing (5th edition) and "Encyclopedia of Natural Medicine", Michael Murray MD and Joseph Pizzorno MD, Little, Brown and Company (2nd edition). Whilst the Tribunal notes that these text books are not standard medical texts, they nevertheless indicate to the Tribunal that the position advanced by the applicant is not one which can be considered to be in the realm of the "wishful thinking" contemplated by Re King and the Tribunal so finds.

41. The applicant's position is supported by an apparently growing number of medical practitioners, and no evidence was lead to suggest that Dr Taylor's position is completely "at odds with the rest of the medical profession" (Re King at paragraph 24). It is clear from the references provided, that Dr Taylor is not "flying solo" in the face of the medical profession, but forms part of the growing number of medical practitioners advocating an approach which includes the prescription of vitamin and mineral supplements for conditions such as the applicant's. Whilst the Tribunal lacks enough evidence to conclude that Dr Taylor's position is advanced by a "significant minority" as contemplated by Re King, it does not consider her to be in an entirely isolated position within the medical profession and so finds. As the Tribunal stated in Re King, it is a matter of degree in each individual case, and the Tribunal must therefore consider this medical evidence in respect of the circumstances of this particular applicant.

42. The Tribunal has found the evidence presented by the applicant as to his medical history to be reliable, and with the support of his doctor's reports, this is demonstrative of a connection between the supplements and relief of the pain associated with his compensable condition and the Tribunal so finds. The Tribunal finds that in these particular circumstances, for whatever reason, the therapy provided by the supplements together with chiropractic treatment improved the applicant's health and well being, in particular by relieving the pain associated with his compensable condition.

43. There is sufficient evidence to satisfy the Tribunal that the benefit which seems to be provided by the supplements is not something which exists only as a subjective belief of the applicant, but to which there is corroborative independent proof, in the form of the doctor's reports and literature provided and the Tribunal so finds.

44. The totality of the evidence suggests that, in this particular case, the supplements benefit the applicant, and the prescription of supplements in cases like the applicant's are supported by a minority of the medical profession. The combination of these factors satisfy the Tribunal that for this particular applicant, the circumstances satisfy an objective assessment of the reasonable standard of proof required for sub-s.16(1) and the Tribunal so finds.

45. The Tribunal notes that such a finding can be considered to be unique to this particular set of circumstances. It is only by virtue of the unique nature of the applicant's medical history, which the Tribunal has found to be genuine, that the Tribunal can make such a finding. It is clear from the history provided on the graph (Exhibit A8), which was uncontested in terms of its accuracy, that the supplements produce a demonstrative reduced need for chiropractic attendance which is governed by his level of pain.

46. The Tribunal also considers the statement made by Gray J in Re Jorgensen that the Tribunal must have regard to whether some other form of treatment would have been better. It is clear that, in this particular case, the alternative non-steroidal anti-inflammatory treatment is not appropriate, due to the potential side effects and interaction with the applicant's other medication. The applicant is well informed in this regard, and is able to make an informed choice as to suitable treatments. Dr Byok was in agreement with the Tribunal that it was apparent that there are no suitable alternatives available to the applicant.

47. In such a scenario, it would appear unreasonable for the Tribunal to deny the applicant access to a treatment, to which there is apparently no viable alternative, about which it can be objectively satisfied is of benefit in the relief of the pain associated with the applicant's compensable condition.

48. In conclusion, the Tribunal again reiterates that its findings in this matter are made within the context of the unique nature of these particular circumstances. It is only by virtue of the combination of the evidence available regarding this particular applicant and his unique situation as regards his medical history that the Tribunal comes to this conclusion. In all cases of this sort, as recognised in Re King, an assessment will be required on the particular circumstances of each case.

49. For the above reasons and pursuant to s.43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that the respondent is liable for the cost of the ARX and Formula Four expenses as from 10 February 1998 onwards.

50. The Tribunal, pursuant to s.67 of the Safety, Rehabilitation and Compensation Act 1988, orders that the respondent pay the applicant's costs, including legal costs (if any) incurred during the preparation of this matter. In the absence of agreement between the parties, costs are to be taxed by a District Registrar or Deputy District Registrar and liberty to apply is reserved to both parties.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Dr J. Linn (Member)

Signed: .....................................................................................