Anand and Comcare (Compensation)

[2016] AATA 766

Anand and Comcare (Compensation) [2016] AATA 766 (30 September 2016)

Division	GENERAL DIVISION
File Number(s)	2015/5130
Re	Charanjit Anand
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	30 September 2016
Place	Sydney

The decision under review, being the decision of Comcare made on 21 September 2015 is set aside and in substitution the Tribunal finds that weekly massage treatment qualifies under s 16 of the Act as medical treatment obtained in relation to Dr Anand’s injury, and it is reasonable treatment obtained in relation to that injury.

......................[sgd]..................................................

Senior Member A Poljak

CATCHWORDS

WORKERS COMPENSATION - claim for massage treatment - whether treatment is medical treatment for the purposes of the Act - whether treatment reasonable for the employee to obtain in the circumstances - decision set aside and substituted

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 ss 4, 16(1)

CASES

Alamos v Comcare [2014] AATA 629

Comcare v Holt [2007] FCA 405
Comcare Australia v Rope (2004) 135 FCR 443
Re Popovic and Comcare  [2000] AATA 264

SECONDARY MATERIALS

Clinical Framework for the Delivery of Health Services- Joint presentation of the Victorian Transport Accident Commission, Worksafe Victoria and the State Government of Victoria

REASONS FOR DECISION

Senior Member A Poljak

30 September 2016

1. Dr Anand seeks review of Comcare's decision under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), dated 21 September 2015, refusing payments for massage treatment for an accepted injury of triangular fibrocartilage tear to his right wrist (“the injury”).

   BACKGROUND

2. Dr Anand sustained an injury to his right wrist on 14 December 2006. The injury occurred while he was driving home from work. He lodged a claim for compensation dated 21 December 2006.

3. On 12 January 2007, Comcare made a determination accepting liability for Dr Anand’s injury pursuant to s 14 of the Act.

4. On 22 January 2007, Comcare approved one session of massage treatment.

5. Dr Edmunds, in his report dated 31 January 2007, diagnosed Dr Anand to have suffered from a triangular fibrocartilage tear to his right wrist.

6. For the period of 19 February 2007 until 31 January 2012, Comcare approved one session of massage treatment per week. For the period 31 January 2012 until 14 January 2013, Comcare approved massage treatment as was reasonably required. For the period 14 January 2013 until 27 July 2015, Comcare yet again approved weekly massage treatments.

7. In a determination dated 27 July 2015, a delegate for Comcare determined that Dr Anand had no present entitlement to compensation in respect of medical treatment under section 16 of the Act. In that determination the delegate was not satisfied that massage was reasonable treatment in the circumstances. Upon request by Dr Anand the decision of the delegate was reviewed and affirmed in a determination dated 21 September 2015. This is the reviewable decision in these proceedings.

   ISSUES FOR DETERMINATION

8. Two issues arise in this application:

   (a)Is the treatment received by Dr Anand “medical treatment” as defined by section 4 of the Act?

   (b)If so, was (or is) the treatment “reasonable for the employee to obtain in the circumstances”?

   Is massage treatment “medical treatment” as defined by the Act?

9. Subsection 16 (1) of the Act provides:

   (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.

10. Clearly the definition in s 4 of medical treatment contemplates treatment by an osteopath, masseur or chiropractor as qualifying under s 16(1), if other conditions in the Act are met, including that the treatment is given by, or under the direction of, an appropriately qualified person. The effect of the provisions above is that the treatment must be (in the present context) (a)‘therapeutic’, i.e. for the purposes of alleviating the applicant's injury, and (b)obtained at the direction of a legally qualified medical practitioner or be provided by, or under the supervision of, a masseur or osteopath registered under state or territory law.

11. Counsel for Comcare conceded at hearing that the massage treatment obtained by Dr Anand was medical treatment as defined by the Act.

    Is the treatment “reasonable for the employee to obtain in the circumstances”?

12. It is not in contention that the massage treatment was obtained in relation to the injury. The central issue to be determined in these proceedings is whether or not weekly massage treatment is reasonable in the circumstances.

13. There is no dispute that Dr Anand’s injury will not heal and that there is no strong indication for surgery since the cartilage material does not heal and surgery is directed towards debridement of unstable portions of the cartilage rather than direct repair. This is confirmed by Associate Professor Graham Gumley, hand surgeon/orthopaedic surgeon, in his report dated 15 August 2014. He further opines that massage treatment:

    …will not produce any anatomical alteration of his Triangular Fibrocartilage and will not lead to healing of the cartilage defect.

    They do historically appear to improve his symptoms significantly and it is this reduction of symptoms that may assist him in avoiding the need for surgical intervention.

14. Associate Professor Gumley went on to state in his report that he would not advise further massage or physiotherapy treatment if the intention was to heal Dr Anand’s injury. However, he stated that massage treatment improved Dr Anand’s symptoms significantly and said that if Dr Anand found that the treatment assisted him with his ability to maintain his work status, there was no clinical or surgical reason to suspend such treatment. In other words, the massage treatment was not likely to lead to any material deterioration in Dr Anand’s condition. I am therefore satisfied that massage treatment is not contraindicated and is safe and effective treatment.

15. Dr Anand gave evidence that following each session of massage treatment he obtains relief from the pain he suffers for around 3-4 days. He says that it is a significant improvement. I accept Dr Anand’s evidence.  He impressed me at hearing as an intelligent, candid and truthful person with insight into his injury and limitations.

16. Dr Anand’s reporting of the benefits of massage treatment is corroborated by Associate Professor Graham Gumley, who states in his report dated 15 August 2014, that massage treatments “historically appear to improve his [Dr Anand’s] symptoms significantly and it is this reduction of symptoms that may assist him in avoiding the need for surgical intervention.”

17. The therapeutic advantages of massage treatment are also supported by Dr Edmunds. On 24 November 2015,  Dr Edmunds reported, inter alia:

    He has been managing well with a weekly massage session and home exercises and care…He is not keen on surgery and I would be keen to avoid surgery. I would therefore support massage treatment since this seems to have been keeping his symptoms at bay since I last saw him two and a half years ago. Recent acupuncture has also been helpful and would also be worthwhile approving. Failing this we may need to do a fresh round of investigations including an MRI scan and proceed with more invasive treatment such as a cortisone injection or wrist arthroscopy.

18. By email dated 23 January 2015, Mr Han Biao Liu, Dr Anand’s treating massage therapist, provided responses to questions posed by Comcare. Mr Liu stated that massage treatment improved Dr Anand’s “mobility/functionality of the wrist and pain relief” and that the treatment modality relieves the tightness of the muscles, ligaments and soft tissue around the right wrist. He stated that the effects lasted from anywhere from few days to a week. In relation to a question about how long treatment will be required for Mr Liu stated, “Dr Anand’s condition is permanent and this is maintenance treatment for symptom relief recommended by his GP Dr Mastaneh Daghighi”.

19. Based on the medical evidence and the evidence of Dr Anand, I am satisfied that massage treatment significantly improves Dr Anand’s symptoms and functionality.

20. The requirement of subsection 16(1) is that for compensation to be payable in respect of the cost of medical treatment obtained in relation to an injury, the treatment must be “reasonable for the employee to obtain in the circumstances …” In considering this requirement, it is also necessary for me to consider all of the circumstances, and not only the beneficial effects experienced by Dr Anand.

21. In Alamos v Comcare [2014] AATA 629 at [24], the Tribunal provided the following non-exhaustive list of factors which may be relevant considerations in the circumstances:

    ·The benefit of the treatment to the injured worker;

    ·The long-term effect of the treatment;

    ·Whether the treatment is likely to cure the injury or significantly reduce its effects;

    ·Whether the treatment maintains the status quo;

    ·The cost of ongoing treatment.

22. Counsel for Comcare referred me to the Clinical Framework for the Delivery of Health Services a joint presentation of the Victorian Transport Accident Commission, Worksafe Victoria and the State Government of Victoria.  Although it is supported by Comcare and other Federal and State organisations, it is not official Commonwealth government policy.  Nevertheless it is appropriate for consideration.

23. In the Foreword to the Clinical Framework it is stated:

    The Clinical Framework outlines a set of guiding principles for the delivery of health services. These principles are intended to support healthcare professionals in their treatment of an injury through:

    oMeasurement and demonstration of the effectiveness of treatment

    oAdoption of a biopsychosocial approach

    oEmpowering the injured person to manage their injury

    oImplementing goals focused on optimising function, participation and return to work

    oBase treatment on best available research evidence.

24. One of the stated principles in the Clinical Framework is to “empower the injured person to manage their injury”.  It says in part:

    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.

25. This is consistent with previous decisions of this Tribunal. In Re Popovic and Comcare  [2000] AATA 264 the Tribunal said at [28]:

    In relation to the applicant’s claim for physiotherapy treatment expenses, in our view there is no role for passive physiotherapy in the applicant’s current treatment regime. The physiotherapy he was having could not improve him in the long term, has limited, if any, short-term benefit, and may in fact be contra-indicated. Any therapeutic benefit he received was small and short-lived. We accept that pain relief, even short-term relief or reduction in pain, can be therapeutic. However in this case any benefit is outweighed by the counter-productive effect with leading the applicant to a dependent state, inhibiting his ability to learn to cope, and embark on pain management programs to assist him with that object. [Authorities omitted].

26. At [21], the Tribunal found “on the whole, the other medical reports available to the Tribunal speak with one voice in stating that physiotherapy is of no value in the management of the applicant’s problem”. Popovic is distinguishable because in this matter there is medical evidence that massage treatment is of significant value in the management of Dr Anand’s injury.

27. Comcare contends that Dr Anand has become somewhat complacent in his treatment and had the potential to become reliant on passive treatment, namely, massage treatment.

28. At hearing Dr Anand advised that following the injury in December 2006 he underwent physiotherapy. At that time he was instructed of ongoing daily exercises that he was to complete for the indefinite future. When his physiotherapy treatment came to an end he found massage treatment, in combination with his home based exercises, effective. He said that in August or July 2016, his injury was exacerbated. Following this exacerbation, he once again underwent physiotherapy.

29. Dr Anand conceded that his adherence to his earlier exercise program had been lacking over the years and his current round of physiotherapy had somewhat renewed his enthusiasm for his home based exercises. However he also stated that he has always done basic daily exercises. He found the exercises did not take the pain away but coupled with massage treatment, helped with mobility and strengthening.

30. Having careful regard to the evidence of Dr Anand, I am not satisfied that he has been complacent or dependent on his treatment. Instead, I am satisfied that the massage treatment is effective and provides Dr Anand with the ability to manage his condition as independently as possible and allows him to participate in activities at home and at work. This is not only because the symptom of pain is alleviated but because the massage treatment also assists Dr Anand with the mobility and functionality of his wrist.

31. Comcare has compensated Dr Anand for 271 massages.  I do not have evidence of the actual cost of these sessions but I accept that it would be significant. The benefit to be gained by Dr Anand continuing such treatment needs to be weighed against the cost which would be incurred and any possible benefits of alternative treatment.

32. In Comcare v Holt [2007] FCA 405 Mansfield J concluded that a cost/benefit analysis, of the kind recommended in Comcare Australia v Rope (2004) 135 FCR 443, ought to be undertaken, that is, there may be circumstances where therapeutic treatment will be unreasonable if alternative treatment is available for potentially similar benefit at a lower cost, and he decided that the extent to which such treatment has been undertaken in the past and the degree of its success may also be relevant (at [26]). His Honour added, however, that:

    [26] There may be cases … where treatment … which in the past has had some therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of past experience…

33. In undertaking the cost/benefit analysis referred to in Rope and Holt, I must also consider the likely ongoing cost of the treatment which is the subject of Dr Anand’s application. Noting the medical evidence of Dr Edmunds, Dr Anand is likely to require massage treatment indefinitely. I am satisfied that this would result in a significant cost over time.

34. I am of the view that in light of there being no chance that Dr Anand’s injury will spontaneously repair, significant improvement and management of Dr Anand’s symptoms weighs against the ongoing cost of the weekly massage treatments. The measurable improvement experienced by Dr Anand is plain on the evidence before me.

35. Dr Anand experiences significant improvement in the symptoms he suffers on a daily basis. The weekly massage treatments assist him with managing his pain, undertaking most daily activities and maintaining employment. I am not satisfied that alternative treatment options suggested by Counsel for Comcare, such as an increased and regular use of anti-inflammatory medication, are satisfactory and sustainable solutions.

36. Dr Edmund opines in his report dated 24 November 2015 that failing access to passive treatments, such as massage treatment and acupuncture, he may need to “do a fresh round of investigations including an MRI scan and proceed to more invasive treatments such as cortisone injection or wrist arthroscopy”.

37. It appears to me that to deny Dr Anand access to a treatment to which the alternative may be more invasive treatments, and which it can be objectively satisfied is of benefit in the relief of the pain associated with his compensable condition and is of benefit in the improvement of his functional capacity, would be unreasonable.

    CONCLUSION

38. For the above reasons, the decision under review, being the decision of Comcare made on 21 September 2015 is set aside and in substitution I find that weekly massage treatment qualifies under s 16 of the Act as medical treatment obtained in relation to Dr Anand’s injury, and it is reasonable treatment obtained in relation to that injury.

I certify that the preceding 38 (thirty –eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

..............................[sgd]..........................................

Associate

Dated 30 September 2016

Date(s) of hearing	8 September 2016
Applicant	In person
Counsel for the Respondent	M Snell
Solicitors for the Respondent	Lehmann Snell Lawyers