Agius and Comcare (Compensation)

Case [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

  1. 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.

  2. 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”).

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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…

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AGLC
Agius and Comcare (Compensation) [2018] AATA 4075
Case
[2018] AATA 4075
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Agius against a decision by Comcare regarding the reasonableness of ongoing acupuncture and massage treatment for her accepted injury. The dispute centred on whether this treatment continued to be necessary and beneficial in the long term. The decision was made by Mr A. Maryniak QC, Member.

The primary legal issue before the Tribunal was to determine whether the ongoing acupuncture and massage treatment provided to Ms Agius was reasonable in relation to her accepted injury. This required an assessment of the evidence regarding the efficacy and benefits of such treatment, particularly in light of its duration and the nature of Ms Agius' condition.

The Tribunal considered expert evidence from Associate Professor Love and Mr Harry Papagoras, a physiotherapist. Associate Professor Love opined that while the treatments provided temporary symptomatic relief, they were not curative and did not result in long-term benefits, suggesting a dependency had developed. Mr Papagoras, applying the principles of the Clinical Framework for the Delivery of Health Services, concluded that the passive nature of the treatment, providing only short-term subjective pain relief, was inconsistent with the framework's emphasis on demonstrable functional improvement, self-management, SMART goals, and evidence-based practice. He noted a lack of functional improvement despite over 20 years of treatment. On balance, the Tribunal found the evidence did not support the ongoing treatment being anything more than temporary relief and therefore not "reasonable".

The Tribunal affirmed the reviewable decision dated 9 November 2016.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 LEGISLATIONEntitlement

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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