Bartlett and Comcare (Compensation)

[2018] AATA 480

Bartlett and Comcare (Compensation) [2018] AATA 480 (14 March 2018)

Division:GENERAL DIVISION

File Number(s):      2016/4541

Re:Peter Bartlett

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:14 March 2018

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

COMPENSATION – medical treatment – therapeutic treatments – previously accepted injury – where Applicant has received treatments for long period of time – whether physiotherapy treatment is medical treatment – whether physiotherapy was obtained in relation to the injury –  whether Applicant still suffered from injury – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 6, 7, 16

SECONDARY MATERIALS

Transport Accident Commission, Worksafe Victoria & the State Government of Victoria, Clinical Framework for the Delivery of Health Services

REASONS FOR DECISION

Senior Member A Poljak

14 March 2018

INTRODUCTION

1. The applicant, Mr Bartlett, has an accepted claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for lumbar spine injury, with date of injury deemed to be 28 March 1989 (“the injury”).

2. The applicant has claimed compensation for physiotherapy treatment under section 16 of the Act for the injury. He has been compensated for approximately 181 physiotherapy sessions between 5 October 1994 and 14 March 2016; a period of almost 26 years. The applicant did not seek compensation for any physiotherapy treatment in 2011, 2012 or 2014.

3. On 15 April 2016, a delegate of Comcare determined that liability to pay for further physiotherapy treatment for the injury was denied under section 16 of the Act. The delegate noted that the evidence indicated that the applicant had not attended for physiotherapy for two years and that he was receiving treatment for his cervical and thoracic spine despite there being no evidence that the injury would have been affecting those areas.

4. On 29 June 2016, a review officer of Comcare affirmed the delegate’s decision dated 15 April 2016. The review officer considered that ongoing physiotherapy treatment did not meet the requirements of the Clinical Framework for the Delivery of Health Services (“the Clinical Framework”), and was not obtained for the injury alone. This is the decision under review in these proceedings.

   ISSUES FOR DETERMINATION

5. The issues which arise in this application are as follows:

   (a)Whether the applicant presently suffers from the injury in accordance with ss 5A, 5B, 6 and 7 of the Act; and if so,

   (b)Whether the applicant is entitled to compensation for physiotherapy treatment under s 16 of the Act in respect of the injury, which includes consideration of:

   (i)Whether the physiotherapy treatment received by the applicant is “medical treatment” as defined in s 4 of the Act;

   (ii)Whether the physiotherapy treatment was obtained in relation to the injury; and

   (iii)Whether the treatment is “reasonable for the employee to obtain in the circumstances.”

   RELEVANT LEGISLATIVE PROVISIONS

6. Comcare’s liability for medical treatment is considered under subsection 16(1) of the Act, which provides:

   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.

7. Section 4 of the Act, in part, defines “medical treatment” as:

   ...

   (b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or

   ...

   (d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or

   ...

   (i) any other form of treatment that is prescribed for the purposes of this definition.

8. “Therapeutic treatment”, “includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury”: subsection 4(1).

9. In making these assessments, it is often of great assistance to the Tribunal to make reference to the Clinical Framework. The Clinical Framework lists the guiding principles as:

   Measure and demonstrate the effectiveness of treatment

   Adopt a biopsychosocial approach

   Empower the injured person to manage their injury

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

   Base treatments on the best available research evidence.

10. Particularly relevant in matters such as this is point 3, “Empower the injured person to manage their injury”. The Clinical Framework later elaborates on this point:

    “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”.

    RELEVANT MEDICAL EVIDENCE

11. On 29 May 1989, the applicant attended on Dr Colin Brown, orthopaedic surgeon. In a report dated 8 June 1989, Dr Brown opined that at the time of the subject incident at work, the applicant sustained a “musculo-ligamentous injury to his lower lumbar spine and/or aggravation of degenerative changes in the lumbar spine”.

12. In a radiological report dated 19 July 1989, it is noted that a non-contrast examination was performed for the assessment of the applicant’s low back pain. The dominant CT finding was that of “relative central spine canal stenosis at the L4-5 level”. It is noted that the clinical significance of this finding can only be determined by careful correlation with the physical signs and symptoms.

13. The applicant again attended on Dr Brown on 26 July 1989, at which time the report of the CT scan of the applicant’s lumbar spine was available. It was recommended that the applicant continue with his present physiotherapy treatment.

14. In a report dated 24 October 1989, Dr Brown noted that the applicant was further reviewed on 16 October 1989, and at that time there was “obviously no further improvement in his previously reported symptoms and physical findings”.

15. On 29 January 1990, the applicant was again reviewed by Dr Brown. He noted that the applicant had almost completed a back care education program and had a recent aggravation of his lower back pain when bending forward over a sink. Dr Brown recommended that the applicant proceed with further physiotherapy treatment.

16. In a report dated 6 March 1990, Dr Brown noted that the applicant was further reviewed on 26 February 1990. He records that “to date [the applicant] states that he has not noticed any significant change in his earlier reported symptoms and on physical examination his findings also remained largely unchanged”.

17. The applicant was again examined by Dr Brown on 8 May 1991. In the report dated 14 May 1991, Dr Brown notes that he discussed with the applicant his “requirement to continue permanently with his ongoing home exercise and care programme for his back”.

18. After further review of the applicant on 20 March 1992, Dr Brown notes in a report dated 26 March 1992, the following:

    “I consider that [the applicant] should have a short burst of physiotherapy at any time that he has acute episodes of low back pain which, even if he does implement the principles of back care rigorously, are still likely to occur spontaneously every so often.”

19. Mr Ashton Lucas, manipulative/sports physiotherapist, notes in a letter to Dr Tey dated 21 February 2008, that the applicant has been attending his clinic for many years for chronic thoracic/lumbar pain. Mr Lucas notes that the applicant has “about 12 visits with me a year (four sessions every three months) for stiffness and pain in his spine”. He says that he treats the applicant with “mobilisations to facet and central joints, soft tissue massage, specific manipulation, review of exercises, stretches and heat”. Mr Lucas notes that the applicant responds to this treatment quite well.

20. In a letter to Comcare dated 4 March 2010, Mr Lucas advises that the applicant reports being in constant discomfort but manages quite well with intermittent physiotherapy treatment and a home programme. He reports that the expected treatment is on “an “as needs” basis, usually 3 to 4 treatments every three months, or during periods of exacerbation and usually on his doctor’s advice. In the interim [the applicant] responds well to home treatment of exercise, swimming and Swiss ball and Pilates programme”.

21. Dr Beder, the applicant’s GP, notes in a Medical Review Certificate dated 29 March 2011, that the applicant’s lower back condition is “manageable if careful and regular physio”. He recommended physiotherapy three to four times a year as it “relieves pain and increases ability to walk”. On 20 March 2012, Dr Beder again recommended “physiotherapy as required” as it improved the applicant’s mobility and reduced pain. Numerous medical certificates recommending physiotherapy treatment have been completed by Dr Beder since 2012, the bulk of which have been approved by Comcare.

22. In a letter to Comcare, dated 2 June 2015, Mr Ashton Lucas states:

    “He has a multilevel low back/disc problem and is in constant discomfort. He manages the pain the majority of the time at home with specific back pain exercises, Swiss Ball Therapy, Pilates/Yoga exercise and heat. He sees me on an “As Needs” basis roughly every three months for specific MANIPULATION, massages, stretches, review of exercises or during periods of exacerbation and usually on his doctor’s advice.

    I’m afraid I can’t give you a date of completion of treatment and unless he has a multilevel disc operation and subsequent rehabilitation he will probably need ongoing maintenance therapy until retirement”.

23. In the attached treatment plan Mr Lucas remarks that the applicant “has “self-managed” for the last 2 years and has NOT had any treatment with me. This is a period of exacerbation due to playing with grandchildren and gardening”.

24. On 9 September 2015, Comcare determined under section 16 of the Act that compensation is accepted, up to and including 19 February 2016, for payment of “6x physiotherapy consultations for flare-ups”.

25. In a recent Medical Certificate for Compensation dated 9 February 2016, Dr Beder recommended that the applicant undertake six physiotherapy sessions over 12 months. On 25 February 2016, Comcare requested that the applicant’s treating physiotherapist complete a Treatment Notification Plan for consideration. Mr Ashton Lucas, completed a Physiotherapy Treatment Notification Plan on 14 March 2016, which states that the applicant needed eight sessions of physiotherapy treatment and that the applicant only attended for treatment on an “as needs basis”.

26. In a report dated 6 June 2016, Mr Lucas addressed the question as to why the applicant occasionally had treatment to his thoracic and cervical vertebra. Mr Lucas noted that the applicant had been treated by physiotherapists at his clinic for a number of years “specifically for a LUMBAR SPINE injury (centralised canal stenosis L4-5, and multi-level disc bulging L3-4, L4-5 with decreased spinal canal diameter). See various X-ray and CT scans”.  Mr Lucas states:

    “This is now a chronic injury and as you may realise the symptoms associated with this condition do not happen in isolation. The human spine is part of a kinetic chain, movement or dysfunction in one part of the spine eventually affects levels further up and down the chain….

    Under normal conditions [the applicant’s] range of movement (ROM) is appropriate for his age: (AGS Standards) He normally self manages his condition with the treatment methods previously mentioned. If [the applicant] has to see me, and this is usually on his doctor’s recommendation. I would normally only treat his lumbar spine BUT there are times when his lumbar spine condition is exacerbated and he experiences pain and stiffness (reduced ROM) in all his joints, due to the reasons I’ve explained on the previous page. It would be totally remiss of me and unprofessional to treat only his lumbar spine at these times.”

27. Mr Lucas gave evidence orally at hearing. He confirmed that the applicant’s signs and symptoms all came from the original injury. He confirmed that the original referral was for spinal stenosis and bulging discs (lumbar) and that the applicant was always treated for lower back problems. He reiterated that the lower back is not in isolation and surrounding muscles were affected as result of the injury to the lower spine. However, Mr Lucas stressed that the applicant never went for treatment just for his neck or upper back. He said that if he treated the applicant’s neck or upper back, he never charged Comcare for the treatment given to these areas.

28. The applicant attended on Associate Professor McGill, consultant rheumatologist, on 1 February 2017 for interview and examination. He also had the benefit of reviewing all available evidence. In a report of the same date, A/Prof McGill states that the applicant has clinical evidence of degenerative spinal disease involving the thoracic, cervical and lumbar regions. In regards to the compensable injury which was deemed to have occurred on 28 March 1989, A/Prof McGill states that clinical assessment and imaging at that stage were in keeping with musculo-ligamentous strain. He further states that there was no evidence of disc protrusion or any other injury with the potential to cause ongoing symptoms. In summary, A/Prof McGill states the following:

    “I think his symptoms in 1989 were due to the combination of early constitutional degenerative change and a relatively minor musculoligamentous strain.

    I think his ongoing fluctuating symptoms after three months from the work incident on 28 March 1989 were a reflection of then mild constitutional degenerative change. Over the years the degenerative changes have increased in keeping with his age.

    I think the effects of his constitutional degenerative spinal disease has long since overtaken the effects of the injury in March 1989.

    The pattern of symptoms did not follow the expected pathway of the “injury” which I think was because the symptoms were not entirely (and probably not predominantly) related to injury but were a reflection of evolving constitutional degenerative change.”

29. In a report dated 27 April 2017, Mr Ashton Lucas, states:

    “On latest examination, 18/04/2017. [The applicant] was still complaining of chronic pain and stiffness in the low lumbar region. There was no radiating symptoms or paraesthesia. These were the same signs and symptoms that he presented with when he presented to a clinic in 1991.”

30. At hearing, Mr Lucas confirmed that physiotherapy treatment had decreased the severity of the applicant’s symptoms but had not resolved the injury. He reiterated that the applicant self-managed his injury and only saw Mr Lucas when he had “gone past the state of self-management”. When pressed in cross examination, Mr Lucas maintained that the applicant only sought physiotherapy treatment on an “as needs basis” when the level of pain got beyond the applicant’s management ability. He confirmed that physiotherapy treatment could be seen partially as “maintenance” however again reiterated that the applicant only sought treatment when absolutely necessary and often as a result of “flare-ups”. He stated that flare-ups were often attributed to normal everyday activities such as gardening and playing with grandchildren. Mr Lucas said he wouldn’t consider the applicant dependent on physiotherapy treatment.

31. A/Prof McGill also gave evidence orally at hearing and confirmed the opinions he expressed in his reports dated 1 February 2017 and 13 August 2017. In regards to the CT scan conducted in 1989, he stated that “generalised bulging” was a very common finding and advised that the finding of mild stenosis was also a very common finding in asymptomatic people. He said he did not attribute the applicant’s symptoms to these findings. A/Prof McGill stated much significance should be given to the applicant’s multilevel degenerative changes. He stated that ongoing fluctuating lumbar spine issues were normal as people aged and were associated with degenerative changes and any associated symptoms were entirely reasonable and common. Significantly, A/Prof McGill opined that the symptoms that the applicant was being treated for in 1991 were mechanical issues as a result of a degenerative back condition. As such, he stated that he was therefore not surprised that Mr Lucas continued to treat the “same symptoms” for many years. He opined that the injury from 1989 was a “muscular strain of a fluctuating nature as a result of evolving constitutional degenerative change”. He accepted that physiotherapy treatment may provide some benefit to the applicant but he stressed that it would not make any change to the underlying condition.

    CONSIDERATION

    Were the physiotherapy treatments obtained by the applicant “medical treatment”?

32. Clearly physiotherapy treatment obtained by the applicant meets the definition of “medical treatment” contained in section 4 of the Act. The definition contemplates treatment by a physiotherapist as qualifying under section 16(1), if other conditions in the Act are met, including that the treatment is given under the direction of an appropriately qualified person. In the present context, the effect of the provisions above is that the treatment must be:

    (a)“therapeutic” and;

    (b)obtained under the direction of a legally qualified medical practitioner or be provided by, or under the supervision of, a physiotherapist.

33. The physiotherapy treatment provided by Mr Lucas was at the recommendation of the applicant’s treating GP, Dr Beder. It was not disputed that Mr Lucas is a qualified physiotherapist and that Dr Beder is a legally qualified medical practitioner.

34. I accept the applicant’s evidence that physiotherapy treatment alleviated his symptoms, particularly pain and stiffness in his lower back and assisted with increased mobility. This is supported by the evidence of Dr Beder and Mr Lucas. As such, I am satisfied that physiotherapy was treatment given for the purpose of alleviating the injury and is a “therapeutic treatment” within the definition of “medical treatment”.

    Was the physiotherapy treatment obtained by the applicant “in relation to” the injury?

35. The applicant states in both written and oral submissions that his back is still injured. He says “not one day has gone by, in the last 27 years, when he has been free from pain”. The applicant reiterates that his injury has never gone away and that he has never suffered a recurrence. He says that his “back can “spasm” at any time for just minor movements like bending over in the shower, putting on shoes, getting out of the car or other normal day to day movements”. In regards to physiotherapy treatment, the applicant says that he is not dependent on treatment and only has treatment when it is absolutely necessary and he is unable to carry out his day to day tasks.

36. Having considered the evidence of the applicant, I accept that he only undertakes physiotherapy treatment on an “as needs” basis when exacerbations occur. I accept his evidence that he does his best to minimise the amount of treatment he receives and successfully self manages his lower back pain in an effort to keep costs down. There have been extended periods of time when the applicant did not receive any physiotherapy treatment. This was also so at times when Comcare had determined that compensation was accepted for the payment of physiotherapy sessions. Indeed, the applicant received no physiotherapy treatment in 2011, 2012 and 2014. Looking at the applicant’s treatment as a whole, he has not been a prolific user of physiotherapy services. The evidence does not suggest that the applicant’s rate of attendance is increasing or that he is growing increasingly reliant upon the physiotherapy treatment; it in fact demonstrates that the applicant’s rate of attendance has been decreasing over the years. As such, I am satisfied that the applicant is not dependent on physiotherapy treatment. However, before determining whether the treatment is reasonable for the applicant to obtain, I must first determine whether the physiotherapy treatment obtained by the applicant is “in relation to” the compensable injury. 

1. For the following reasons, I am not satisfied that the physiotherapy treatment obtained by the applicant is “in relation to” the compensable injury.

2. The applicant was last examined by Dr Brown, an orthopedic surgeon, in 1992. Since then he has predominantly been under the care of his general practitioner and physiotherapist.

3. I prefer the evidence of A/Prof McGill as he is the only appropriately qualified person to have recently examined the applicant.

4. Significant opinions expressed by A/Prof McGill are as follows:

   (a)the applicant’s ongoing fluctuating symptoms after three months from the injury in 1989, were a combination of early constitutional degenerative change and a relatively minor musculoligamentous sprain; and

   (b)the effects of the applicant’s constitutional degenerative spinal disease have long since overtaken the effects of the injury, such that the applicant no longer suffers from the effects of the injury.

5. For the above reasons, I am satisfied that the effects of the applicant’s lumbar spine injury have ceased and he is therefore not entitled to treatment pursuant to sections 16 and 4 of the Act.

   DECISION

6. The decision under review is affirmed.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 14 March 2018

Date(s) of hearing:	28 September 2017
Applicant:	In person
Solicitors for the Respondent:	M Scriva, Sparke Helmore