Agius and Comcare (Compensation) - [2018] AATA 4075

Agius and Comcare (Compensation) [2018] AATA 4075 (30 October 2018)
Division:GENERAL DIVISION
File Number(s): 2016/6944
Re:Teresa Agius
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr A. Maryniak QC, Member
Date:30 October 2018
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]........................................................................
Mr A. Maryniak QC, Member
Catchwords
COMPENSATION – medical treatment – ongoing acupuncture and massage treatment –– whether treatment is in relation to the accepted injury – reasonableness of ongoing treatment – decision affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988
Cases
ReChowdary and Comcare [1998] AATA 448
Comcare Australia v Rope [2004] FCA 540
Re Pethes and Comcare [2018] AATA 483
Secondary Materials
Clinical Framework for the Delivery of Health Services (2003)
REASONS FOR DECISION
Mr A. Maryniak QC, Member
30 October 2018

The Applicant, Ms Teresa Pauline Agius, is 51 years old. Her application relates to an injury sustained on 21 March 1994 (“the Injury”) whilst employed as a nurse in the Coronary Care Unit at the Repatriation General Hospital at Heidelberg in Victoria, which was then controlled by the Commonwealth Department of Veterans Affairs.
Ms Agius completed a claim form on 14 April 1994 for compensation for the Injury, being lower back injury (lumbar strain with spinal nerve irritation) sustained on 21 March 1994. On 5 May 1994 Comcare issued a determination accepting liability for the Injury under section 14 of the Safety Rehabilitation and Compensation Act 1988 (“SRC Act”).
The reviewable decision of 29 November 2016 affirmed the primary determination dated 11 October 2016 (some 22½ years after the accepted injury) which determined that as at 11 October 2016 Ms Agius had no present entitlement to compensation for acupuncture and massage treatment under section 16 of the SRC Act.
During the hearing the following witnesses gave evidence and were cross examined:
(a)Ms Agius;
(b)Ms Melina Weekes – Ms Agius’ acupuncturist;
(c)Associate Professor Bruce Richard Tilden Love; and
(d)Mr Harry Papagoras, physiotherapist.
Ms Agius gave evidence that she experiences ‘just a very low-grade pain all the time’ and that she has only been pain free since the Injury during pregnancy for each of her two children. She has been treated by her acupuncturist, Ms Weekes, since 1998. Despite this treatment Ms Agius has experienced ‘three major episodes’ of severe 10 out of 10, 11 out of 10 pain. She asserts that these episodes are a consequence of missing her fortnightly acupuncture sessions at the relevant times.
Ms Agius said that the acupuncture often provides her with some pain relief but where it does not, then massage from Ms Weekes may assist. Ms Agius could not say exactly when that pain relief occurred in respect of each session.
One major pain episode occurred during the period 6-8 December 2016 when she was hospitalised and given strong pain relief medication. She believes this event occurred because she had not seen Ms Weekes for treatment since 11 November 2016 . Contrary to the main thrust of her evidence, she states that following this episode and an urgent appointment for three hours on 10 December 2016 she was left “pain free”.
Ms Agius was cross-examined. The Workcover Initial Medical Certificate dated 23 March 1994 identifies LBP (lower back pain) as the symptom and a diagnosis of lumbar strain with spinal nerve irritation as the Injury.
Whilst an undated written statement of Ms Agius mentions upper back pain, lower back pain, shoulder and neck pain and leg pain the Claim for Rehabilitation and Compensation completed by Ms Agius, dated 14 April 1994, describes back-lumber strain with spinal nerve irritation, mild pain in the base/lower back and generalised back ache and back pain as the Injury. This was the Injury accepted by the Respondent. There was no reference to neck injury or pain.
Dr Billet, an orthopaedic surgeon engaged by the Respondent, reported on 9 November 1994 that upon examination Ms Agius’ neck was entirely normal. This was accepted by Ms Agius during cross-examination.[1]
[1] Dr Brazenor also reported on 8 June 1994 that Ms Agius had “a ruptured L5/S1 disc, prolapse pressing on the right nerve root. [He] told her that the full healing period for the injury is two years …” . Ms Agius’ treating GP, Dr Wallis’ computer generated clinical notes appear to make no mention of any back pain for about 10 years from 29 August 2000.
Evidence of Ms Weekes, treating acupuncturist
Ms Weekes gave evidence of treatments mostly every 14 (sometimes 21) days from September 1998 until the Respondent ceased paying for such treatments in October 2016, and then beyond that date at Ms Agius’ own expense. She gave evidence of the positive research regarding the general effectiveness of acupuncture on releasing muscle tension and in respect of pain and inflammation. Ms Weekes also stated that massage, exercise, walking, lumbar support and other self- management types of activities have been recommended and taken up by Ms Agius and that Ms Agius makes a real effort to get on with her life by her adoption of these recommendations.
Ms Weekes, in cross-examination, gave evidence of her qualifications in massage, Chinese medicine and acupuncture and the 12 meridians which are lines of energy relating to the organs in Chinese medicine. Ms Weekes also stated that the Injury may or may not be the cause of Ms Agius’ need for massage/acupuncture treatment to her upper back and neck.
Evidence of Associate Professor Bruce Love, orthopaedic surgeon
Associate Professor Bruce Love gave evidence on behalf of the Respondent. He examined Ms Agius on 10 July 2017 and prepared two reports dated 10 July 2017 and 18 August 2017.
Associate Professor Love’s evidence contradicted that of Ms Weekes insofar as he stated that where a patient has a lower back injury and then develops injuries to the thoracic and/or cervical spine, the later injuries are coincidental and not a consequence, that is “it is not uncommon for persons to have symptoms in both regions, but one doesn’t cause the other”. Associate Professor Love’s view of Ms Agius’ cervical abnormalities, as revealed in the CT scan taken on 29 September 2015, was that they were coincidental, degenerative changes consistent with Ms Agius being in her forties (and therefore age related). Associate Professor Love stated that Ms Agius has had a pain syndrome for over 20 years which is unlikely to change in the foreseeable future.
In Associate Professor Love’s opinion both massage and acupuncture treatment only result in a temporary benefit whilst either natural recovery occurs or the condition itself recurs in terms of symptoms, and neither result in long-term benefits and are not curative. Associate Professor Love believes that Ms Agius has developed a dependency upon acupuncture and massage providing her with physical comfort, albeit only temporarily, a symptomatic short-lived benefit. In cross-examination, Associate Professor Love reiterated that the acupuncture/massage treatment was “reasonable” on the basis that it is giving symptomatic benefit.
Evidence of Mr Harry Papagoras, physiotherapist
Mr Harry Papagoras, Physiotherapist, prepared a report dated 10 November 2017 and gave evidence on behalf of the Respondent. In his view, the treatment provided by Ms Weekes was passive in nature and it provided some short-term pain relief of seven to 12 days, essentially measured subjectively.
Mr Papagoras referred to the Clinical Framework for the Delivery of Health Services (“Clinical Framework”) developed in 2003 at Worksafe Victoria, Transport Accident Commission and by the State Government of Victoria. It comprises five guiding principles, the first of which is that there should be a demonstrable and measured functional improvement from the treatment. His review of the relevant material revealed no such improvement to Ms Agius’ condition despite over 20 years of treatment. He further stated that, pain in itself doesn’t equate to ability to function or not function. Principle 2 involves a biopsychosocial approach making sure that the treatment provided or recommended doesn’t create or foster adverse physical and psychological and social problems. Principle 3 relates to empowerment to self-manage. That is, the goal of the treatment is to be independent of treatment.
Principle 4 is that the treatment should have goals that are “SMART”: specific, measurable, achievable, realistic and time-dependent. Principle 5 relates to using forms of treatment that has evidence-based practice underpinning it.
Mr Papagoras explained that against the clinical framework of the five principles one asks, “Is this person getting better? Am I creating dependency? What are my goals of the treatment and can the person self-manage with this?” Mr Papagoras made reference to the Nice Guidelines from the UK Institute for Health and Care Excellence.
After reviewing a substantial body of material including Ms Weekes’ clinical notes, Mr Papagoras was of the opinion that at Ms Agius’ stage of recovery and in light of the nature of the Injury, the provision of regular, ongoing passive treatment such as acupuncture and massage, that provides short-term temporary benefit, is not consistent with elements of the Clinical Framework. Such treatment does not appear to be effective in improving function or resulting in sustained improvement, it is not in accordance with a biopsychosocial approach, does not empower Ms Agius to take on a greater role in self-management, does not appear to have SMART goals and is not evidenced based for the management of chronic conditions with persistent pain. He summarises his conclusion with respect to each of the five principles in his report. His opinion is essentially the same for the massage treatment as it is for acupuncture.
RELEVANT LEGISLATION
Entitlement
Section 16(1) of the Safety Rehabilitation and Compensation Act 1988 (‘SRC Act’) is the provision conferring an entitlement to compensation for medical treatment and provides as follows:
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.
Medical Treatment
Relevantly, "medical treatment" is defined in section 4(1) of the SRC Act:
“medical treatment means
a)        ...
b)        therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
c)        …
d)        therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or .............."
Therapeutic Treatment
The expression "therapeutic treatment" is also defined in section 4(1) of the SRC Act:
"therapeutic treatment includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury”
KEY QUESTIONS FOR DETERMINATION
Medical Treatment
Is the claimed treatment consisting of ongoing acupuncture and massage treatment provided by Ms Weekes on an approximately fortnightly basis during the period on and from 11 October 2016 ("claimed treatment") “medical treatment" within the meaning of the SRC Act?
The Injury Connection
Is the claimed treatment "obtained in relation to the injury" being the Injury under section 14 of the SRC Act, namely "lumbar strain and spinal nerve irritation" sustained on 21 March 1994?
Reasonableness
If yes, then is the claimed treatment medical treatment "that it was reasonable for the employee to obtain in the circumstances”?
MEDICAL TREATMENT
The Respondent concedes that massage and acupuncture treatment which provides short term relief or reduction in pain can constitute "therapeutic treatment' within the meaning of that expression as defined in section 4(1) of the SRC Act.
The Respondent also concedes that the claimed treatment consisting of massage and acupuncture treatment provided by Ms Weekes is "medical treatment' within the meaning of that expression as defined in section 4(1) of the SRC Act.
INJURY CONNECTION
The Respondent accepts that Ms Agius has an accepted "injury" under section 14 of the SRC Act, namely "lumbar strain and spinal nerve irritation" sustained on 21 March 1994.
Although there has been inadequate investigations to identify a pathological source or cause for Ms Agius’ initial and current lower back pain, the Respondent and the Tribunal accepts that it is the opinion of Associate Professor Love that Ms Agius continues to suffer from the effects of the Injury that is affecting her lower back.
No claim supported by a medical certificate has ever been made in respect of an "injury" affecting the cervical spine, let alone accepted by the Respondent.
It is clear from the evidence and the Tribunal finds that the acupuncture and massage treatment provided by Ms Weekes is administered not only to the lower back but also to the cervical spine.
The Tribunal finds that the acupuncture and massage treatment provided by Ms Weekes is obtained in relation to the Injury only insofar as it is directed to treatment of the lower back. The Tribunal does not consider that any treatment to the cervical spine is treatment obtained in relation to the Injury.
REASONABLENESS
Relevant Factors
Factors of relevance in determining reasonableness of passive treatment in the circumstances include the following principal factors:
(a)The extent and duration of past treatment
(b)The current benefits of the claimed treatment
(c)The cost of the claimed treatment
(d)Whether the claimed treatment complies with the Clinical Framework.
Extent of Past Treatment
Ms Agius has been receiving ongoing and continuous acupuncture and massage treatment on an approximately fortnightly basis for over 20 years. Whilst passive treatment therapies are often regarded as "reasonable" treatment options in the early phase of an acute injury, if the provision of ongoing passive treatment therapies continue to only result in temporary relief of pain, then there comes a point in time where it will no longer be reasonable in the circumstances unless it is part of a plan for permanent improvement in the condition of the injured employee.
In Re Chowdary and Comcare [1998] AATA 448 Senior Member Burton said in respect of a claim for continuing physiotherapy treatment at [53]:
“While provision of temporary relief from pain...will in many circumstances qualify as medical treatment which it is reasonable for an employee to obtain, there will in some cases come a point where it is no longer reasonable unless it is part of a plan for permanent improvement in the health of the employee.”
The Respondent contends and the Tribunal accepts that the extent and duration of past acupuncture and massage treatment is a factor supporting the proposition that the provision of continuing acupuncture and massage treatment is not reasonable in the circumstances of this matter.
Current Benefits of Treatment
Ms Agius submits that ongoing acupuncture and massage treatment alleviates her symptoms of lower back pain. It is clear from the evidence of Ms Weekes, Associate Professor Love and Mr Papagoras, however, that the effects of any such alleviation of symptoms is temporary with no evidence that the continuation of ongoing acupuncture and massage treatment is curative or will result in any long term or permanent functional improvement. The Tribunal accepts this evidence and finds accordingly.
Consistent with that finding and in light of the 20 years or so of treatment with no incremental improvement to the Injury, although Ms Agius claims that if she is prevented from continuing with ongoing acupuncture and massage treatment then her condition will deteriorate, the Tribunal finds that such a claim is not made out on the evidence.
Ms Agius referred to a series of hospital attendances during December 2016 for acute symptoms of pain which extended from the back to the front of the abdomen coinciding with a short lapse in acupuncture and massage treatment, as with similar incidents in March 2017 and June 2017.
A substantial amount of time during the hearing was concerned with whether or not a direct consequence of Ms Agius missing her fortnightly acupuncture appointment with Ms Weekes was one, each of all of about three short-term instances of Ms Agius experiencing more severe pain episodes affecting her back, shoulders, neck and/or arms, since 1998. On balance, the Tribunal finds that the evidence before it does not support such a conclusion. For example, Ms Agius relied upon a document titled, “When Back Pain may be a Medical Emergency”.
However as highlighted by the Respondent and noted by the Tribunal that same document stated:
“Low back pain from a spine condition generally is localised in the back or extremities affected by nerves aligned with spine segments. Rarely does low back pain migrate to the abdomen. However, abdominal disorders can often extend to the low back and be experienced as acute back pain in the lower back.”
There is some tension between the submission by Ms Agius that the three pain incidents were a direct consequence of her missing her acupuncture/massage appointment with

Ms Weekes and her evidence in cross-examination regarding the period 18 June 2016 to

6 August 2016 when she did not see Ms Weekes. Further, the medical evidence before the Tribunal as discussed in these Reasons does not support such a submission nor can the Tribunal find such a proposition made out on the evidence.
Of the seven weeks without treatment, six were spent on a European holiday with multiple flights and transfers between Australia, Malta, Sicily, Italy, Croatia, Venice and Paris and then back to Australia. Ms Agius says she had a ten minute acupuncture session in Malta which wasn't very good and saw an acupuncturist in Croatia and had a massage as well. When asked if she had any documentary proof of these attendances she said “No, and paid cash in Croatia money”. Also of significance is that Ms Weekes’ clinical notes of 6 August 2016, subsequent to the European trip simply say Ms Agius was tired from the six week trip and made no further mention of any significant exacerbation of pain and despite no treatment from Ms Weekes for seven weeks, Ms Agius gave evidence that she could not remember if she had pain then.
Of far greater significance is the fact that the evidence of Ms Weekes was considered by Associate Professor Love and Mr Papagoras and their own evidence is contrary to any established link between the three incidents and a lack of acupuncture and massage.
Associate Professor Love was of the opinion “that acupuncture [whether or not including massage], if it is giving an individual symptomatic benefit, the benefit is short-lived” and when asked after 20 years of treatment is such acupuncture causing an improvement he said “no”. He said both massage and acupuncture only provided temporary benefit. He also stated that “where individuals with lumbar spine injuries go on to develop injuries in the thoracic and cervical spine – that such are coincidental, not causative”.
It is clear from the evidence that Ms Agius has improved functionally from 1994. However, Ms Papagoras was of the opinion that there was no causal relationship between her fortnightly acupuncture/massage treatments and such improvement. Mr Papagoras also stated that the problem with having long-term passive treatment was the potential for dependency, which he stated was a maladaptive coping strategy and a mental “crutch”.

In cross-examination regarding the three incidents alleged to be a result from lack of acupuncture/massage treatments Mr Papagoras gave the following evidence.
“MS AGIUS: Well, the question is, given there has been three incidences where there has been a trial – a so-called trial or a period of time – without acupuncture and it’s led to episodes of increased pain, how do you think stopping it is going to help ? --- It’s difficult to establish that the exacerbations are a direct result and casually related to the link of acupuncture. I find it difficult to come to that conclusion. You have had persistent pain for 24 years with cycles of exacerbation even with acupuncture, and without acupuncture, I am not sure how you would relate an exacerbation of those three episodes specifically because you didn’t have acupuncture when you’ve had - - -
What would cause an exacerbation? --- It’s a whole host of things, If it is your child’s 21st, it could be preparing for the 21st. There’s many factors, I mean I’d have to take a history and say well, what led to this? Why did you have this? The 6/12 episode, I’m not really sure. If you went to Magnetic Island, it could be the travel on a plane, it could be the using of luggage, carrying luggage. There are many mechanisms that may cause an exacerbation that, looking at your history, whether you have acupuncture regularly or you didn’t have it, you have periods of exacerbations and so I am not sure that the lack of acupuncture results to the exacerbation.
So, if the case was the I went to Magnetic Island and I carried a suitcase, I went to Europe and carried a suitcase and I didn’t get any pain, but I had acupuncture that that time. The doesn’t explain --- ? --- That’s not an absolute.
No, that’s not an absolute, you can’t be certain for sure for everything? --- No, if I was examining you and you were a patient of mine, I would be sitting here and saying well, when did you start getting pain? What warning signs did you have, what were you doing, and you may say for no apparent reason. It may be postural. You may say, when I picked up my luggage, when I reached across, when I sat for too long, but you have a history over 20 odd years of exacerbations of pain, settles and increased pain ---
Yes, but (indistinct) normal pattern? --- Yes, correct, but you have also had that pattern with regular acupuncture, so I am not sure how the conclusion of no acupuncture equals exacerbation when you have had exacerbations with acupuncture.
So, you are saying that the pattern really hasn’t changed that much? --- No, that ---
You said on page three ---
SENIOR MEMBER: Just let the witness finish each question.
MS AGIUS: Sorry? --- I think you are referring to there – what you were going to make a point about, the pattern hasn’t changed – my reference in my report is specific to weather, but there is comments about how you had less pain in the summer period in warm weather, and you have much more pain during winter periods in colder weather, so a paragraph in context which – about the patterns of pain, which is on page number three, the last paragraph – mainly relates to the fluctuation of your pain with weather, and that hasn’t changed over time. When I look at Melinda’s notes.
SENIOR MEMBER: Sorry, which paragraph on page three? --- The bottom paragraph, page three.
MS AGIUS: Melinda made a mention each year since 1998, so she made a mention of the weather every year? --- There’s many mentions of weather in her notes, and the pattern has been fairly consistent over many years that when it’s warm you feel better, when it’s colder you don’t feel as well, and that hasn’t changed with the provision of ongoing intervention.
On page four, in the second paragraph, you said that there are multiple entries suggesting slow improvement? --- M’mm.
You said,
There is multiple entries suggesting slow improvement, however it is unclear how it is manifested subjectively, objectively and functionally
? --- M’mm.
So, how would you – you are not an acupuncturist, I understand that – but how would you assess that?
SENIOR MEMBER: He is just reading her notes and seeing what she says.
MS AGIUS: Well, she is mentioning that there is a decrease in pain, there is improved flexion, there is less pain, there is more mobility. Aren’t these words that are used to evaluate pain? --- No, there is no mention – subjectively, there is slow improvement and so looking at the vast majority of Ms Weekes’ notes, it’s unclear what is slowly improving; are you symptoms improving in a sustainable manner, is your mobility or strength improving, is your function and your ability to work, for example, your ability to do things in the community? There is no reference to improvement apart from a vague comment of slowly improving (indistinct) changing. The mention of flexion and more mobility, it is a single item - it is a summary – at the end of her notes, and I am not sure how Melinda would come to that conclusion of increased flexion when there is no measure of flexion, of your range of motion, and I don’t even know if it’s flexion in your cervical spine or your shoulder or your lumbar spine.
So, what you are saying is that Melinda Weekes’ records are incomplete? --- Correct.
Not that there is no evaluation, but that the records aren’t showing you anything? --- It’s very difficult to elicit more information from Ms Weekes’ notes.
Yes. You said on page five of your report under acupuncture, “In my opinion, the acupuncture and massage treatment” – this is in number two,
Provided by Ms Weekes would not be considered as therapeutic treatment at this stage of recovery.
What stage of recovery is that? --- At a period of many years post-original insult. Some 20 years, 10 years onwards, so at a later stage of recovery.
I’m at a late stage of recovery? --- You’re at a persistent pain state. Which is different to when you hurt yourself back in ’94, in which you would have had an acute incident of pain. You have chronic pain now.
Yes, Okay, so in this stage of recovery, is any type of treatment recommended? --- Yes.
What treatment? --- Some of the strategies that you are currently employing, which is exercising the items you detailed in your report. They are positive aspects to your recovery that you are exercising, you are doing a 35-kilometre walkathon, that you were going to the gym. They are positive aspects ---
So, Harry, do any of your patients come to you at a late stage of recovery wanting – I think you provide massage, is that right? --- I don’t provide that much massage, I provide a lot of education and instruction and training. If someone came in with chronic and persistent pain, I would not massage them. It is in within my repertoire to provide massage, but I don’t routinely massage my patients.
No? – No, but it is a tool available to use when indicated.
And when would you use massage? --- If someone had knee reconstructive surgery and it’s ---
No, in the context of back pain? --- I typically wouldn’t.
You wouldn’t use massage with any back pain? --- No.”
There is no evidence before the Tribunal which supports a finding that acupuncture and massage will ever provide anything more than temporary relief long-term to Ms Agius’ and this is consistent with her direct evidence as to her ongoing condition and the history relating to the Injury.
The Tribunal accepts the Respondent’s submission that there is no credible factual or medical evidence to support Ms Agius’ claim that cessation of ongoing acupuncture and massage treatment will result in a long term deterioration of her lower back condition or that it remains a clinically justifiable intervention.
A number of recent decisions of the Tribunal[2] have held that continuing passive treatments are no longer reasonable after a protracted course of past passive treatments if the continuing passive treatment only results in a temporary alleviation of symptoms. The preponderance of evidence before the Tribunal is consistent with this view. And the Tribunal so holds.
[2] Re Alamos and Comcare [2014] AATA 629 ("Alamos") [cessation of long term physiotherapy treatment] at [39]; Re Durham and Comcare [2014] AATA 753 ("Durham") [cessation of long term physiotherapy treatment]; Re Bayani and Australian Postal Corporation [2015] AATA 342 ("Bayani") [cessation of long term physiotherapy treatment]; Re Topping and Comcare [2015] AATA 525 ("Topping") [cessation of long term massage and osteopathy treatment] at [51]; Re Evans and Comcare [2016] AATA 827 ("Evans") [cessation of long term physiotherapy treatment]; Re Drummey and Comcare [2016] AATA 738 ("Drummey") [cessation of long term massage treatment]; Re O' Day and Comcare [2017] AATA 1328 ("O'Day") [cessation of long term osteopathy treatment] and RePethes and Comcare [2018] AATA 483 ("Pethes") [cessation of long term massage treatment]. Cf. Re Rope and Comcare (“Rope”) [2018] AATA 42.
It is was submitted by the Respondent and the Tribunal finds that Ms Agius does not require a gradual weaning off over time of her acupuncture and massage treatment as she has already been provided with adequate instruction in exercise and strategies to enable her to self-manage her condition over the years as is clear from Ms Weekes evidence and the evidence of Mr Papagoras.
Cost of Treatment
The Respondent submits and the Tribunal finds that Section 16 of the SRC Act imports a notion of a cost/benefit analysis in evaluating whether a particular treatment is reasonable in the circumstances. This requirement involves weighing the cost of obtaining the treatment against the benefit conferred by the treatment (see Comcare Australia v Rope [2004) FCA 540 at [17]). Treatment is more likely to be considered "reasonable" where the claimed treatment is of limited duration and its cost is therefore low. However, treatment is less likely to be considered "reasonable" where the claimed treatment is ongoing and indeterminate and the potential cost is therefore high (see Pethes at [49] [50]), as is claimed in this case.
Ms Agius is seeking ongoing acupuncture and massage on an indefinite basis which was only qualified by the occurrence of some future and as yet unknown medical discovery of a "cure" for back pain.
The Tribunal accepts the Respondent’s submission that a future "cure" for back pain is highly speculative and is tantamount to an assertion by Ms Agius that she requires ongoing massage and acupuncture treatment on a fortnightly basis for the remainder of her life expectancy.
The Tribunal agrees that the provision of ongoing massage and acupuncture treatment on a fortnightly basis for the remainder of Ms Agius’ life expectancy would result in a highly substantial cost.
The Respondent submits and the Tribunal finds that the potential cost of the provision of fortnightly acupuncture and massage treatment for an indefinite period which is likely to be the remainder of Ms Agius’ life expectancy is a factor supporting the proposition that the provision of continuing acupuncture and massage treatment is not reasonable in the circumstances of this case.
The Clinical Framework
As mentioned earlier, the Clinical Framework outlines a set of guiding principles for the delivery of health services that is supported by all national Workers Compensation schemes, including Comcare, and a number of allied health professional peak bodies, of which massage and acupuncture is within the scope of service for these peak bodies.
In considering whether medical treatment is "reasonable for the employee to obtain in the circumstances", the Tribunal holds that the Clinical Framework is a relevant consideration and provides guidance to the Tribunal.
The five guiding principles are:
·Measurement and demonstration of the effectiveness of treatment
·Adoption of a biopsychosocial approach
·Empowering the injured person to manage their injury
·Implementing goals focused on optimising function, participation and return to work
·Base treatment on best available research evidence
Mr Papagoras provided his opinion on the application of the Clinical Framework in respect of the provision of passive treatment provided to Ms Agius by Ms Weekes and the Tribunal accepts his evidence, which was thoroughly tested by Ms Agius during cross- examination.
First Principle
Mr Papagoras in his report in his report made the following observations regarding the requirements of the first principle in the Clinical Framework:
·A key message is that treatment should result in a measurable benefit to the injured person, particularly as it relates to function rather than pain or impairments, such as reduced mobility or strength
·The use of standardised outcome measures is recommended in this principle as a method to measure functional benefit, particularly one that is reliable, valid and sensitive to change.
In respect of Ms Agius, Mr Papagoras made the following observations:
It is noted that Ms Agius pain response can fluctuate depending on the weather, noting increased pain with cold weather and reduced pain in warmer weather. Despite the ongoing treatment, this pain pattern does not appear to have changed over time.
Ms Weekes records primarily indicate pain responses with little reference to functional impact as a result of her intervention. There are no objective measures noted in any of the entries, nor are there any Standardised Functional Outcome Measure scores noted· to indicate Ms Agius functional status and the impact of intervention on function. The record of 25/02/12 notes improvement since starting treatment as "able to stand, sit and lie down for longer period, daily walk distance slowly increasing", however this is ill defined with no indication of the magnitude of this reported improvement.
There are multiple entries suggesting slow improvement, however it is unclear how this is manifested subjectively, objectively or functionally. Later entries however note symptoms have remain unchanged, as noted on 08/11/14 with "condition relatively remains unchanged still has the same pain in lower back, legs and shoulders which is always better for about 12 days after treatment then pain slowly starts again". Further to this, Ms Weekes, makes a comment on page 28 of her records, after the entry dated 15/04/17, that "Note 1: Always find with most treatments that Teresa has immediate improved flexion, less pain and more mobility which usually lasts from 9-12 days before pain starts to develop again". This suggests an overall treatment effect of short term improvement with no sustained benefit. It is of note that flexion range of motion and mobility is noted here, however there is no evidence in the clinical notes that range of motion has been measured pre or post treatment or over time.
In summary, the services provided by Ms Weekes has been a significant amount of regular, ongoing passive treatment that has been provided over a prolonged period with little, if any, evidence by Ms Weekes of any sustained functional improvement as a result of the intervention.
Mr Papagoras concluded:
There is no evidence on review indicating that standardised outcome measures have been implemented.
The main indicator of improvement, albeit short term, provided by Ms Weekes has primarily been a pain response.
As such the provision of acupuncture and massage at this stage would not fit in with this principle.
The Tribunal, in light of all the evidence before it, finds that in the circumstances the provision of ongoing acupuncture and massage treatment does not fulfil the requirements of the first principle in the Clinical Framework.
Second principle
Mr Papagoras observed:
· The key message is that physical, psychological and social factors are considered and that the identification and management of these factors are' addressed.
· It is noted that there this principle adopts the ''flags model" for identifying risk factors for long term activity limitation, participation restrictions or persistent pain.
Mr Papagoras stated in his report regarding the application of the second principle to Ms Agius:
Encouragement for increased activity, exercises and self-management have been noted, as have psychological factors, however these do not seem to be adequately addressed and supported. Indeed, the continuation of regular, ongoing, passive treatment does little to address the notion that exercise and self-management should be encouraged nor does it adequately address psychological factors
He concluded:
·     Ms Agius is considered to have a number of these risk factors:
oRed Flag - failure of treatment to result in further sustained improvement at this stage
oYellow Flags - Unhelpful beliefs about the injury, poor coping strategies, passive role in recovery
oBlack Flags - Legal processes and compensation thresholds, such as the dispute process related to the provision of acupuncture and massage
·     The provision of ongoing, regular acupuncture and massage does not adequately address these risk factors, and can indeed create and foster these risk factors
·     Although it was been identified that seeing a counsellor or psychologist may be of benefit, this does not appear to have eventuated
·     As such the provision of acupuncture and massage at this stage would not fit in with this principle.
The Tribunal finds that the acupuncture and massage treatment does not fulfil the requirements of the second principle.
Third principle
Mr Papagoras in his report said of the requirements of the third principle in the Clinical Framework:
· A key message is that "The main ways to empower an injured person are education, setting expectations, developing self-management strategies and promoting independence from treatment."
· The principle makes comment about the independence from treatment, stating; "The key measure of treatment effectiveness is the ability of the injured person to manage their condition as independently as possible and participate in activities at home, in the community and at work. Independence does not mean being symptom free, but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependency on treatment, which reinforces illness behaviour and can lead to persistent pain or long term disability. By following a biopsychosocial approach and the principle of empowerment, health professionals, families and other key parties (such as employers), can support injured people to become independent in their health and injury management.”
With respect to Ms Agius, Mr Papagoras then made the following observations in his report:
Self-management strategies such as encouragement to use heat packs, exercising, walking and diet have been explored at various points. Additionally, a number of records give insight that Ms Weekes has an appreciation of exercise as an intervention and the benefits for Ms Agius both physically and emotionally. The relevant notes are as follows:
·     It is noted on 30/04/11 that Ms Agius was starting gym, possibly with a personal trainer
·     It is noted on 14/05/11 that "hopefully the gym will help to strengthen and give Teresa more mobility and will also help Teresa's emotional well being". Later entries in 2011 note that Ms Agius attended the gym and was feeling more confident
·     It is noted on 11/02/12 that Ms Agius "has stopped gym due to home I work commitments but will continue walking"
·     It is noted on 10/03/12 that Ms Weekes discussed with Ms Agius that "the gym work combined with treatments, walking and a good diet seemed to help the best"
·     It is noted on 29/06/13 notes that Ms Weekes "suggested gym again as this was very beneficial physically and emotionally"
·     It is noted on 24/08/13 that "walking and stretching as often as possible is finding it is helping pain levels"
·     It is noted on 19/07/14 that Ms Weekes "expressed concern to Teresa about trying to increase gentle exercise and walking as she is still young and need to slowly increase her mobility where possible"
·     It is noted on 16/08/14 that "Teresa seems to be at her optimum when attending the gym, physically and emotionally
Despite this reported benefit of exercise, the provision of regular, ongoing passive treatment undermines the notion that a more active and self-managed approach is a reasonable management strategy that should be further encouraged and supported.
Ms Weekes makes comments related to Ms Agius mental health, such as being "emotionally stressed" (21/08/10), ''feeling very down due to pain" (09/03/13) and "emotionally down" (06/04/13). She notes on 02/06/12 that she discussed with Ms Agius about seeing a counsellor for pain management and on 04/05/13 she discussed with Ms Agius that "seeing a psychologist might be of benefit with the emotional stress due to the pain11   to which Ms Agius indicated that "she would think about it". It is of note that the psychological aspect of pain has been considered yet mental health intervention does not appear to have been coordinated or provided to assist Ms Agius.

Mr Papagoras concluded:
·     Although exercises and self-management strategies have been provided and encouraged at various times, and appear to have had some benefit, regular, ongoing passive treatment has continued, which undermines the notion that a more active and self-managed approach is a reasonable management strategy at this stage. This has the effect of disempowerment by relying on passive treatment to manage the injury.
·     The therapeutic benefit of self-management as a long term strategy to manage chronic and persistent pain is a reasonable solution.
·     Strategies to facilitate self-management are detailed under this principle on page 11 of the Clinical Framework. It is recommended that some of these strategies be considered and adopted by Ms Agius.
·     As such the provision of acupuncture and massage at this stage would not fit in with this principle.
The Tribunal finds that ongoing acupuncture and massage treatment does not fulfil the requirements of the third principle.
Fourth Principle
Mr Papagoras stated:
· A key message here is that goals should be functional and SMART - Specific, Measurable, Achievable, Relevant and Timed.
Regarding the fourth principle Mr Papagoras concluded:
· There does not appear to be any functional goals in Ms Weekes notes that are considered to be SMART.
· As such the provision of acupuncture and massage at this stage would not fit in with this principle.
The Tribunal finds that ongoing acupuncture and massage treatment does not fulfil the requirements of the fourth principle.
Fifth principle
Mr Papagoras in his report observed:
· A key message here is that "Healthcare professionals need to use the best available research evidence to inform their decision making”.
Mr Papagoras also made the following observations in his report regarding the application of the fifth principle to Ms Agius and the research relating to the provision of acupuncture and massage treatment:
A review of the articles provided in the "Tribunal documents with index" primarily suggest the short term effect of acupuncture and/or massage in chronic low back pain. This treatment effect appears to be consistent with Ms Agius experience with these interventions.
With regards to further evidence of the use of acupuncture and/or massage for the management of back pain, I have also considered the following comprehensive and contemporary guideline, noting some of the key recommendations below:
· "Low back pain and sciatica in over 16s: Assessment and management. Assessment and non-invasive treatments; NICE Guideline NG59, Methods, evidence and recommendations, Final Version”, November 2016, National Institute for Health and Care Excellence
ohttps:/lwww.nice.org.uk/guidance/ng59/evidence/fall-guidline-assessmenr-and noninvasive-treatments-pdf-2726158003
oThe term 'low back pain' is used to include any non-specific low back pain, which is not due to cancer, fracture, infection or an inflammatory disease process.
oProvide people with advice and information, tailored to their needs and capabilities, to help them self-manage their low back pain with or without sciatica, at all steps of the treatment pathway. Include:
§information on the nature of low back pain and sciatica
§encouragement to continue with normal activities
oConsider manual therapy (spinal manipulation, mobilisation or soft tissue techniques such as massage) for managing low back pain with or without sciatica, but only as part of a treatment package including exercise, with or without psychological therapy.
oDo not offer acupuncture for managing low back pain with or without sciatica.
As noted earlier, there is no evidence that I am aware of that suggests that acupuncture and/or massage should continue regularly and indefinitely as a long term treatment strategy for chronic and persistent back pain.
It should be noted that the Clinical Framework is a battery of five principles and that each principle should not be used in isolation. If there is evidence that acupuncture and/or massage provides short term relief for chronic pain, or indeed if there is no published evidence for a specific treatment modality, then the other principles need to be taken into consideration, such as evidence of demonstrable functional improvement over time, using a biopsychosocial approach, empowerment to self-manage and SMART goals that are being set and achieved.
In relation to the fifth principle, Mr Papagoras concluded:
·     Although there is evidence suggesting that acupuncture can assist in short term pain relief in chronic pain, which appears to be the case for Ms Agius, there is also conflicting evidence and guidelines suggesting that acupuncture should not be used for managing low back pain with or without sciatica.
·     Additionally, evidence and guidelines suggest that manual therapy, such as massage should only be used as part of a treatment package that includes exercises, with or without psychological therapy.
·     There is no evidence that I am aware of that suggests that acupuncture and/or massage should continue regularly and indefinitely as a long term treatment strategy for chronic and persistent back pain.
·     As such the provision of regular, ongoing acupuncture and massage at this stage would not fit in with this principle.
Again, the Tribunal finds and concludes on the evidence that ongoing acupuncture and massage treatment does not fulfil the requirements of the fifth principle.
For completeness, the Tribunal notes Mr Papagoras went on to express the following overall opinion in his report:
Ms Agius, in her report dated 21I10/16, details the improvement that she has made from when she initially injured herself, noting her gradual progress ''from being almost wheelchair bound, unable to walk unable to function and unable to attend work". Ms Agius has reportedly improved from her initial injury, however the consideration at hand relates to the current, or more recent, treatment need and treatment effect, specifically that treatment is no longer resulting in demonstrable, sustained functional improvement. As Ms Agius points out, at this stage, it is indeed unrealistic to expect complete pain relief and a return to full function. However it is realistic to consider that ongoing self-management should serve as a reasonable; long term management strategy. In reviewing Ms Agius responses to the Clinical Framework principles, I am not satisfied that the responses adequately address the principles. The Clinical Framework principles will be explored in greater detail in the responses below.
In my opinion, when considering the stage of recovery and the nature of the injury, the provision of regular, ongoing passive treatment, such as acupuncture and massage, that provides short term benefit is not consistent with elements of the Clinical Framework as treatment does not appear to be effective in improving function or resulting in sustained improvement, it is not in accordance with a biopsychosocial approach, does not empower Ms Agius to take on a greater role in self-management, does not appear to have SMART goals and is not evidence based for the management of chronic conditions with persistent pain.
……
In my opinion, the acupuncture and massage treatment provided by Ms Weekes would not be considered as therapeutic treatment at this stage of recovery as the treatment effect is one of short term benefit that is not resulting in sustained improvement of Ms Agius' Accepted Condition.
……
In my opinion, it is not reasonable for Ms Agius to obtain acupuncture and massage for her Accepted Condition at this stage of recovery. It appears that Ms Agius has been provided with instruction and encouragement to take on a greater role in self-management over many years and indeed there is some indication that this has been beneficial to her both physically and emotionally.
I am of the opinion that acupuncture and massage should cease and that Ms Agius selfmanage her condition as a reasonable long term solution considering the instruction and encouragement she has been provided by Ms Weekes over the years.
Ideally, there should be support for self-management by the injured worker's treating health care practitioners for this transition to be successful.
……
The activities that l consider would positively impact Ms Agius injury are exercises. Ms Weekes indicates in her records that there is a positive impact both physically and emotionally when Ms Agius exercises.
The activity that I consider would negatively impact Ms Agius injury is regular, ongoing attendance for passive treatment that offers short term benefit as this is not consistent with the Clinical Framework principles at this stage of recovery.
With respect and to her credit Ms Agius prepared and presented her case thoroughly. However, on balance, the evidence as discussed above supports the finding that providing any ongoing acupuncture and massage treatment is no longer “reasonable”. The Tribunal finds that there is a lack of evidence before it which supports a finding that the acupuncture and massage Ms Agius has been receiving provides anything more than temporary relief. As stated above, this conclusion is consistent with Ms Agius’ direct evidence as to her ongoing condition and the history relating to the Injury.
DECISION
The Tribunal affirms the reviewable decision dated 9 November 2016.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member

[sgd].....................................................................
Associate
Dated: 30 October 2018

Date of hearing:

Date of last written submissions:

26-28 February 2018

13 March 2018

Applicant:

Counsel for the Respondent:

In person

Mr Roy Seit

Solicitors for the Respondent: Ms Su Yi Koo