April Ragg and Military Rehabilitation and Compensation Commission
[2014] AATA 758
•20 October 2014
[2014] AATA 758
Division Veterans' Appeals Division File Numbers
2012/5038
2014/0973
Re
April Ragg
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 20 October 2014 Place Brisbane The decisions under review are affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
COMPENSATION – Accepted liability for neck condition and its sequelae – Regular zen shiatsu massage – Treatment provided by massage therapists – Massage therapists not registered practitioners – Massage not recommended as part of treatment plan by psychiatrist or pain specialist – Treatment not reasonable – Decisions under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988(Cth) ss 14; 16
REASONS FOR DECISION
Senior Member Bernard J McCabe
20 October 2014
Mrs April Ragg was injured at work in 1996. A roller door fell and struck her on the neck. The Military Rehabilitation and Compensation Commission (“the Commission”) accepted liability for her neck condition and its sequelae under s 14 of the
Safety, Rehabilitation and Compensation Act 1988(Cth) (“the Act”). The Commission has been paying for the cost of approved treatment for the conditions pursuant to s 16 of the Act. This case arises out of the Commission’s refusal to continue funding regular zen shiatsu massage sessions that Mrs Ragg says are essential to her health.
MRS RAGG’S CONDITION
The Commission accepted liability for conditions described as “chronic
musculoligamentnous [sic] strain of the cervical spine, with subsequent sequel [sic] of chronic fibrositis, major depressive disorder and chronic pain disorder (neck)” (exhibit 1, p 3).The medical evidence provided by Dr Ness, the consultant orthopaedic surgeon called by the Commission, suggests the original soft tissue injury should have resolved within months of the accident. He said he could not see any pathology on physical examination or any abnormality in the imaging studies that would explain why Mrs Ragg continues to experience pain in connection with the injury some 17 years after it occurred.
Mrs Ragg called Dr Flavell to give evidence. Dr Flavell is a rehabilitation specialist.
He explained in his oral evidence that he does not actively treat Mrs Ragg but he monitors the treatment provided by her osteopath, in particular. Dr Flavell said in oral evidence he has been seeing the applicant since 2003. Dr Flavell also discussed
Mrs Ragg’s chronic pain condition.Mrs Ragg has been receiving regular shiatsu massage therapy since around 2007.
She says it is of benefit to her. Dr Ness said in oral evidence that there is no basis for believing shiatsu massage could provide more than fleeting relief from any pain
Mrs Ragg was still experiencing as a consequence of the original injury. Dr Flavell agreed he would not ordinarily recommend massage as a course of treatment, but suggested the fact Mrs Ragg believed she was deriving genuine benefit – and would likely relapse in the absence of that treatment – persuaded him to say the treatment was appropriate. When I suggested the massage may have had a placebo effect, Dr Flavell did not disagree. He pointed out chronic pain was a poorly understood condition.For her part, Mrs Ragg emphasised the massage was not solely directed to the site of the original injury. That was not the point, she explained in oral evidence: the massage provided more general relief. She added that she resented the constant references to her mental health.
SHOULD THE COMMISSION PAY FOR THE TREATMENT?
Mrs Ragg argues the Commission should pay for the massage treatments pursuant to s 16 of the Act. The Commission agreed to pay for up to 24 sessions between October 2011 and October 2012 (exhibit 1, p 17), but has now refused to pay for additional sessions during that period (the reviewable decision to this effect being made on
7 September 2012) or for any further sessions after that time (reviewable decision of
3 January 2014 at p 16ff, exhibit 1). In its decision of 3 January 2014, the Commission said massage therapists are not registered practitioners (exhibit 1, p 17). The Commission shifted its ground at the hearing. It now argues it is not required to pay for the treatment because it is not reasonable for the applicant to obtain that treatment in the circumstances: s 16(1) of the Act.
The Commission points to the absence of a coherent treatment plan for Mrs Ragg, and to the absence of medical evidence that suggests shiatsu massage is a recognised or effective treatment for the condition or conditions from which Mrs Ragg suffers.
As it happens, I think the oral evidence of Mrs Ragg points to the real issue. She says the massage treatment is not focused on the site of the original injury. It follows the massage is not sought as a direct response to the original injury. It is instead a response to the chronic pain condition, or perhaps the depressive condition. But she is not currently seeing a pain management specialist or a psychiatrist who devised a treatment plan that includes massage.
Mrs Ragg says she has seen pain management specialists before. She has attended courses and clinics and derived limited benefit. She says she has been prescribed medication which she dislikes, and the massage provided her with the ability to manage her pain and reduce her reliance on painkillers. She may be right in her assessment of what works for her, but I am satisfied it is not reasonable for her to obtain the treatment (and expect the Commission to pay) in circumstances where the problem has persisted for so long and appropriately qualified medical experts – either a pain management specialist or a psychiatrist – have not recommended massage as part of a treatment plan.
CONCLUSION
The decisions under review are affirmed.
I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ..................................................
Associate
Dated 20 October 2014
Date of hearing 28 August 2014 Advocate for the Applicant Mr C Ragg Counsel for the Respondent Ms E Ford Solicitors for the Respondent Australian Government Solicitor
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