No liability to pay for “Ted” (aka psychiatric assistance dog)
Date: September 19, 2019
Brideson by guardian Lynette Brideson and Australian Capital Territory [2019] AATA 2314 (31 July 2019).
Key Points:
- Mr Brideson sought compensation for the training and upkeep of a psychiatric assistance dog.
- The Tribunal found that the dog did not fit the definitions of medical treatment or an aid or appliance and, therefore, compensation was not payable.
Background:
Michael Brideson was employed by the ACT Fire Brigade. In 2011, he attended a large factory fire and suffered PTSD as a result. Liability to pay compensation was accepted and Mr Brideson received workers’ compensation for incapacity to work and medical treatment. At a later stage, liability was extended to include a secondary injury of bruxism.
On 30 July 2016, Mr Brideson claimed compensation to cover the costs of his dog, Ted, including insurance premiums, animal registration, dog training, food, grooming, veterinary costs, desexing and vaccination, on the basis that Ted was his psychiatric assistance dog.
On 2 August 2016, Comcare rejected liability to pay compensation (pursuant to section 16(1) of the SRC Act) on the basis that that costs associated with the dog did not meet the definition of medical treatment under section 4 of the SRC Act.
Mr Brideson’s wife sought review of the decision on his behalf on the basis that the costs were compensable as medical treatment or as an aid or appliance, pursuant to sections 16 and 39 of the SRC Act. Comcare affirmed the determination on review and noted that an aid or appliance is something artificial in nature, and a live animal did not meet that definition.
The Decision:
Section 4 of the SRC Act provides that medical treatment is treatment provided by a legally qualified medical practitioner or a physiotherapist, chiropractor or similar, including medical testing or an examination, supply or repair of an artificial limb, nursing care or any other form of medical treatment.
Pursuant to section 16 of the SRC Act, medical treatment will be compensable where it is reasonably required in respect of the compensable condition.
Pursuant to section 39 of the SRC Act, a claimant is entitled to compensation for an aid or appliance, being an alteration to their home, a modification to their vehicle, any aids or appliances for the use of the claimant or the repairs to those aids or appliances.
Conclusion:
Ted underwent special training to be a psychiatric assistance dog. The evidence of Mr Brideson and his wife was that Ted calmed Mr Brideson, which allowed Mr Brideson to go out to places he previously couldn’t, due to his condition. Mr Brideson’s Psychiatrist, Dr Son Nguyen completed an application for a psychiatric assistance dog, in which he stated that the dog may help to reduce Mr Brideson’s PTSD related hyperarousal.
Dr Brian White, Psychiatrist, gave evidence on behalf of Mr Brideson that psychiatric assistance dogs helped to facilitate cognitive behavioural therapy and enabled people to participate in a wider range of social outings. On behalf of Comcare, Dr John Saboisky, Psychiatrist, gave evidence that a psychiatric assistance dog, while helpful to assist with therapy, was not in itself medical treatment. Further, he noted that having the psychiatric assistance dog had not led to any sustained reduction in Mr Brideson’s depression. Both Dr White and Dr Saboisky noted there was a lack of scientific evidence around the effectiveness of psychiatric assistance dogs.
The Tribunal concluded that the psychiatric assistance dog did not meet the definition of medical treatment in section 16 of the SRC Act, because:
- Dr Nguyen had not prescribed the use of a psychiatric assistance dog as medical treatment.
- Ted was initially acquired as a family pet, not as an assistance dog, therefore he was not obtained on medical direction.
- There was little evidence as to the effectiveness of psychiatric assistance dogs in providing therapeutic or medical treatment.
The Tribunal went on to consider whether Ted could be classified as an aid or appliance under section 39 of the SRC Act. The Tribunal found that Ted could not be considered an aid or appliance for the following reasons:
- The purpose of section 39 was for the provision of inanimate objects, therefore animals did not fit the criteria.
- Section 39 allowed for the payment of the initial cost for an aid or appliance, rather than ongoing maintenance costs.
- Further, due to the lack of scientific evidence around the efficacy of psychiatric assistance dogs, the Tribunal did not accept that Ted was reasonably required as an aid or appliance.
As a result, Mr Brideson did not succeed in his claim for the costs associated with Ted.
Lessons Learnt:
In determining liability under the SRC Act for claimed medical treatment, it is necessary to consider:
- Has this treatment been prescribed by a treating physician?
- Is there evidence of the effectiveness of this treatment?
- Is this treatment reasonable to obtain in the circumstances?
Contact:
Rebecca Tloczek Brett Ablong
Solicitor Partner
Direct: +61 (0) 8 9265 6020 Direct: +61 (0) 8 9265 6001
rebecca.tloczek@hbalegal.com brett.ablong@hbalegal.com
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