Bennett and Comcare (Compensation)
[2017] AATA 1269
•9 August 2017
Bennett and Comcare (Compensation) [2017] AATA 1269 (9 August 2017)
Division:GENERAL DIVISION
File Number(s): 2016/3602
Re:Rosalie Bennett
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:L M Gallagher, Member
Date:9 August 2017
Place:Perth
The decision under review is affirmed.
..................[sgd]......................................................
L M Gallagher, Member
CATCHWORDS
COMPENSATION – Commonwealth employees – accepted injury - repetitive strain injury (right) arm – distinction between injury and diagnosis – distinction between injury and symptoms – distinction between diagnosis and symptoms - whether proposed physiotherapy treatment in relation to accepted injury – decision under review affirmed
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) subsection 5A(1)(b), sections 14, 16, 124
CASES
Canute and Comcare (2006) 91 ALD 552
Re Rosalie June Bennett and Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1991] AATA 331
SECONDARY MATERIALS
Peter Sutherland, John Oman Ballard and with Allan Anforth, Annotated Safety, Rehabilitation and Compensation Act 1988 (The Federation Press, 10th ed, 2014)
Clinical Framework for the Delivery of Health Services
REASONS FOR DECISION
L M Gallagher, Member
9 August 2017
INTRODUCTION
Ms Bennett has an accepted workers’ compensation claim in respect of ‘repetitive strain injury (right) arm’ with a date of injury of 15 March 1985 (‘the injury’). Ms Bennett sustained her injury in the course of her employment with Centrelink (now the Department of Human Services).
Ms Bennett has received compensation for various physiotherapy treatment expenses since 1993.
On 17 May 2016, a Comcare delegate determined that compensation was not payable under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’), for Ms Bennett’s physiotherapy treatment. In the determination, the Comcare delegate noted that (T115):
“In line with Comcare’s clinical framework, treatment should medically treat the compensable condition within a reasonable timeframe, and not just provide temporary relief of the symptoms for a short period of time. The Clinical Framework is designed to assist the providers to empower employees and to teach them self-management strategies.”
The physiotherapy treatment the subject of the reviewable decision is the physiotherapy treatment notification plan dated 26 April 2016 in relation to Ms Bennett, (T114) (the ‘proposed physiotherapy treatment’). The plan states, relevantly, and in part:
“Current reported symptoms and physical assessment findings
Range of Movement restricted. Cervical, thoracic right side flexion/rotation at 4/5.
Right shoulder impingement at end of range flexion.
Hand behind back – Thoracic 8 level.
Reduced strength. Cervical, thoracic, right shoulder rotator cuff 5(-)/5
Pain and tightness with tenderness on palpation for right cervical, thoracic and rotator cuff muscles 2-5/10…
Proposed treatment plan from today’s date
Total no. of services 3 to 5 over 8 weeks from 01/05/2016 to 31/07/2016
Proposed treatment methods including client self management strategies
As per referral from Dr Martin Bender, 3 to 5 hands on sessions every 2 to 3 months due to flare up of chronic neck and shoulder pain.
Hands on treatment – passive joint mobilisation, soft tissue massage, dry needling, electrotherapy modalities, heat application.
Home exercise-n stretches strengthening, posture awareness, work place ergonomics and pain management…”
On 8 June 2016, Ms Bennett, through her solicitors sought reconsideration of the determination dated 17 May 2016 on the basis that the need for physiotherapy related to the injury (T118).
On 6 July 2016, a Comcare delegate affirmed the determination of 17 May 2016 (‘reviewable decision’). The delegate stated in the reviewable decision that she did not consider that the proposed physiotherapy treatment was consistent with the principles of the Clinical Framework for the Delivery of Health Services. The delegate also stated, having reviewed the available evidence (T123 at 287):
“…I find that physiotherapy is not effective, empowering to you, goal focused, evidence based or has a biopsychosocial approach. This means I cannot find that the treatment can be clinically justified, or is reasonable for you to undertake in your circumstances.”
On 11 July 2016, Ms Bennett sought review of the reviewable decision. In her application, Ms Bennett states that she considers the reviewable decision to be wrong on the basis that physiotherapy treatment is reasonable treatment as recommended by her treating practitioners (T1).
RELEVANT LEGISLATION
As Ms Bennett’s injury was sustained on 15 March 1985, liability was accepted under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (‘1971 Act’). By section 124 of the Act[1], Ms Bennett’s entitlement to compensation for medical treatment is determined under section 16 of the Act.
[1] The Tribunal also notes the comments by Deputy President Bean in MacDonald and Comcare (Compensation) [2016] AATA 1049 at [10] with regard to the effect of section 124 of the Act as well as the other transitional provisions in the Act more generally.
Relevantly, subsection 16(1) of the Act provides:
16 Compensation in respect of medical expenses
(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.
[emphasis added]
The term ‘injury’ in relevantly defined in subsection 5A(1)(b) of the Act to mean an injury other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment.
ISSUES FOR DETERMINATION
The key issue for the Tribunal is whether Comcare is liable to pay Ms Bennett compensation pursuant to section 16 of the Act in respect of her accepted injury.
This issue requires the Tribunal to consider the following:
(a)whether the proposed physiotherapy treatment was or would be obtained ‘in relation to’ Ms Bennett’s accepted injury;
(b)if so, whether the physiotherapy treatment received by Ms Bennett is ‘medical treatment’; and
(c)if so, whether it is ‘reasonable in the circumstances’ for Ms Bennett to obtain the proposed physiotherapy treatment,
in accordance with subsection 16(1) of the Act.
The Tribunal has concluded below that the proposed physiotherapy treatment, if obtained, would not be ‘in relation to’ Ms Bennett’s accepted injury in accordance with section 16 of the Act. Accordingly, the Tribunal has not addressed the legislation nor considered the issues relevant to whether the physiotherapy treatment received by Ms Bennett is ‘medical treatment’ and if so, whether it is ‘reasonable to obtain in the circumstances’. It is not required to do so.
Nevertheless, the Tribunal has set out the facts as they may relate to whether the physiotherapy treatment received by Ms Bennett is ‘medical treatment’ and if so, whether it is ‘reasonable to obtain in the circumstances’ in order to preserve the completeness of the clinical picture.
EVIDENCE
The matter was heard in Perth on 13 June 2017. The parties were represented as follows:
·Ms Bennett appeared in person, represented by Counsel, Mr David Bruns. Mr Bruns was instructed by Ms Kate Dempster, from JDK Legal Services; and
·Comcare was represented by Counsel, Mr Thomas Offer. Mr Offer was instructed by Ms Allyson Ladhams, from the Australian Government Solicitor.
Evidence before the Tribunal
The Tribunal received the following evidence:
·Ms Bennett’s statement dated 15 March 2017 (A1);
·Ms Bennett’s supplementary statement dated 10 May 2017 (A2);
·Report of Dr Evan Jenkins, General Practitioner, dated 23 November 2016, with accompanying letter of instruction from JDK Legal Services dated 23 November 2016 (A3);
·T Documents (R1);
·Anatomical diagram (R2);
·Joint statement prepared by Dr Farham Shahzad, Consultant Occupational Physician and Dr Evan Jenkins dated 31 May 2017, with accompanying request letter prepared by the Australian Government Solicitor dated 12 May 2017 (R3);
·Report by Dr Shahzad dated 31 October 2016 with accompanying letter of instruction prepared by the Australian Government Solicitor dated 13 October 2016 (R4);
·Supplementary report by Dr Shahzad dated 29 December 2016 with accompanying letter of instruction prepared by the Australian Government Solicitor dated 15 December 2016 (R5); and
·Clinical Framework for the Delivery of Health Services (R6).
Ms Bennett gave oral evidence at hearing. The Tribunal also heard oral evidence, given concurrently, from Drs Shahzad and Jenkins. Relevant aspects of the evidence and material before the Tribunal will be referred to below.
Ms Bennett
At the hearing, Ms Bennett gave oral evidence to the Tribunal in person. Ms Bennett had earlier provided a statement dated 15 March 2017 (A1) and a supplementary statement dated 10 May 2017 (A2).
Ms Bennett gave evidence before the Tribunal that when she attended physiotherapy in the past (prior to the reviewable decision), the therapist mainly worked on her neck area and performed manipulation and mobilisation movements with their hands. Ms Bennett said that in more recent times, the physiotherapist still works on the same areas, although they don’t ‘do as much’ with her neck. Ms Bennett says the physiotherapist usually works on her shoulders and ‘low neck to back’ areas and on the top of the right shoulder ‘going a bit over the back.’
Ms Bennett said she used to attend for physiotherapy treatment ‘reasonably often’ in the early stages, but this has ‘settled down over the years.’ Ms Bennett said that for the last few years, she would attend three sessions of physiotherapy every few months, maybe every two months.
Ms Bennett described the benefits she experiences from physiotherapy treatment as the feeling of ‘tightness’ having been relieved from the top of the shoulder to the neck and into the trapezius muscle.
Ms Bennett said she took Mersyndol (pain relief) at night, which helps with her pain, however the Mersyndol ‘does not have the same effect’ as physiotherapy. Ms Bennett said she has tried ‘lots of pills’ for headaches but ‘nothing else works.’
Ms Bennett said she was presently working three days per week, on Mondays, Wednesdays and Fridays so that she could recover from her work days on Tuesdays and Thursdays.
Ms Bennett said that she continues to pay her own physiotherapy expenses since the time that Comcare has ceased to meet those payments. Ms Bennett said that she believes if she did not attend physiotherapy she would not be able to work.
Ms Bennett said that in the months after the date of injury (being 15 March 1985) she experienced pain in both arms. Ms Bennett said she had, in the past also lodged a claim in relation to her left arm, but never heard anything further. Ms Bennett said that pain in her left arm is now ‘not an issue’ and pain in her right arm is ‘very occasional,’ being experienced approximately every three to four months.
Ms Bennett said that she had undergone acupuncture treatment over the last few years to address pain in specific areas. Ms Bennett said that once they put the (acupuncture) needle into her arm “the pain went.”
When asked by Mr Offer, Ms Bennett said that her current main area of concern was her neck and also her shoulder, the latter of which gradually tightens over time. Referring to the anatomical diagram (R2), Ms Bennett said she now experiences pain in the lower part of her neck, from the base of her skull through to most of the trapezius muscle. Ms Bennett said that most of her treatment is directed to the neck and shoulder areas.
Ms Bennett said she supplements her physiotherapy treatment with Mersyndol tablets and Voltaren gel (A1, paragraph 37). Ms Bennett said she also completes exercises at home to relieve and minimise her symptoms, including stretching of the neck, either in the shower or by using a tennis ball against the wall. When asked by Mr Offer, Ms Bennett said she ‘doesn’t really do strengthening exercises’ because her physiotherapist hasn’t asked her to. Ms Bennett said she completes exercises using an elastic band every week or so, “when she thinks of it,” although she could not say exactly how often and her physiotherapist has not asked her to do this more often.
Ms Bennett said that over the years, she has had three ‘breaks’ from physiotherapy treatment, the last one being from 29 November 2001 to 23 May 2002 (A1, sub-paragraph 26(c)). Ms Bennett said she has made the decision that it is better for her to have regular treatment and would have recalled any extensive periods without physiotherapy since 2002 because this would have resulted in a marked increase in her symptoms.
Ms Bennett gave evidence that she has continued to have physiotherapy treatment at her own expense since the reviewable decision (A1, paragraph 38). Ms Bennett said that since 23 September 2005, she still attends for physiotherapy treatment to her neck and shoulder every few months (A1, paragraph 25) and this requirement has remained fairly constant since then. Ms Bennett said her physiotherapy treatment includes manipulation, massage, electrodes and a hot pack. Ms Bennett said she had ‘tried to go without’ this treatment, however when she does she ‘gets bad headaches,’ so it is easier if she has ‘maintenance-type sessions.’
Dr Jenkins
At the hearing, Dr Jenkins provided oral evidence to the Tribunal in person and concurrently with Dr Shahzad. Dr Jenkins provided to the Tribunal the following reports:
·Report of Dr Evan Jenkins dated 23 November 2016, with accompanying letter of instruction from JDK Legal Services dated 23 November 2016 (A3).
·Joint statement prepared by Dr Farham Shahzad, Consultant Occupational Physician and Dr Evan Jenkins, General Practitioner dated 31 May 2017, with accompanying request letter prepared by the Australian Government Solicitor dated 12 May 2017 (R3).
When asked by Mr Offer, Dr Jenkins confirmed that at the time of writing his report dated 23 November 2016 (A3), he was not in possession of a copy of Dr Shahzad’s report dated 31 October 2016 (R4). Dr Jenkins also confirmed that his opinion in his report dated 23 November 2016 was based entirely on the history of injury that Ms Bennett gave to him.
Mr Offer drew Dr Jenkins’ attention to the following extract from his report (A3):
“Ms Bennett’s condition settled down to chronic relapsing neck pain and restriction with variable right arm and shoulder symptoms, for which she required regular physiotherapy.”
Dr Jenkins agreed with Mr Offer that this extract (referred to at paragraph 33 above) demonstrated that at this time, the majority of Ms Bennett’s complaints centred on her neck and shoulder.
When referred to Ms Bennett’s previous diagnosis of ‘repetitive strain injury’ affecting her ‘neck and right shoulder girdle’ as set out in the joint statement (R3), Dr Jenkins said that while the phrase ‘RSI’ was debatable and ‘a bit too vague’, he was comfortable with the diagnosis. Dr Jenkins elaborated and said that in his view, ‘RSI’ was a ‘catch-all’ term, encompassing a range of conditions.
Dr Jenkins said he was not asked in the letter requesting the joint statement as to what he thinks Ms Bennett currently suffers from. Dr Jenkins said he would not use the term ‘RSI’ to describe Ms Bennett’s current condition, which Dr Jenkins considers involves symptoms arising from cervicogenic issues. Dr Jenkins described this as a pattern of pain made worse by using the affected body part.
Mr Offer took Dr Jenkins to the following extract from his report (A3):
“…I feel it would be entirely justified to allow [episodic physiotherapy] to your client for the remainder of her working life and longer it if were possible, as it is likely she will have chronic neck-related symptoms for the rest of her life.”
When asked by Mr Offer, Dr Jenkins confirmed that Ms Bennett’s symptoms at that time were neck-related, her neck not having been the focus of previous assessments.
As to whether physiotherapy is a treatment modality that is typically offered on an ongoing basis, Dr Jenkins said this was not the case, and rather it was typically offered on an intermittent basis. Dr Jenkins said his reason for this view was that he did not see the benefit of prolonged physiotherapy in circumstances where ‘gains were not being made.’
Dr Jenkins said that the danger to Ms Bennett with long term physiotherapy is that in mitigating her symptoms, she may be creating a dependency rather than ‘looking at the long term plan or situation.’
Dr Jenkins said that Ms Bennett achieves ‘striking relief’ from physiotherapy, however physiotherapy ‘is not curative.’ Dr Jenkins said that rather, physiotherapy is about achieving ‘good’ relief. Dr Jenkins noted that in relation to Ms Bennett’s case, there are always some symptoms that remain after physiotherapy as Ms Bennett’s use of pain relief is ongoing.
Mr Offer referred Mr Jenkins to the proposed physiotherapy treatment plan (T114), as follows:
“Hands on treatment – passive joint mobilisation, soft tissue massage, dry needling, electrotherapy modalities, heat application. Home exercise-n stretches, posture awareness, work place ergonomics and pain management.”
In relation to the proposed treatment methods listed at paragraph 42 above, Dr Jenkins said that he would expect all of those methods to be important and would hope for compliance, however patients can ‘do their own thing.’ With regards to strengthening exercises, Dr Jenkins said that patients don’t usually perform strengthening exercises because ‘if you push neck muscles they hurt.’ Dr Jenkins said that gentle movements and massage is preferred for treating the neck and general fitness was also important.
Mr Offer referred Dr Jenkins to the following extract from the referral from Dr M T Bender (General Practitioner) dated 12 April 2016 (T111):
“Condition: Symptoms flare trapezius spasm”
Mr Offer again referred to the physiotherapy treatment notification plan dated 26 April 2016 (T114) in that the current reported symptoms and physical assessment findings referred to the ‘cervical, thoracic right side flexion rotation at 4/5’ and the standard outcome measures for the assessed scores provided relate to the ‘Neck Disability Index.’ Dr Jenkins said that these extracts indicated that at these times, Ms Bennett’s treatment focus is on her neck.
Dr Shahzad
At the hearing, Dr Shahzad provided oral evidence to the Tribunal in person and concurrently with Dr Jenkins. Dr Shahzad provided to the Tribunal the following reports:
·Report by Dr Shahzad dated 31 October 2016 with accompanying letter of instruction prepared by the Australian Government Solicitor dated 13 October 2016 (R4).
·Supplementary report by Dr Shahzad dated 29 December 2016 with accompanying letter of instruction prepared by the Australian Government Solicitor dated 15 December 2016 (R5).
·Joint statement prepared by Dr Farham Shahzad, Consultant Occupational Physician and Dr Evan Jenkins, General Practitioner dated 31 May 2017, with accompanying request letter prepared by the Australian Government Solicitor dated 12 May 2017 (R3).
In relation to his diagnosis of Ms Bennett’s ‘repetitive strain injury’ affecting her neck and right shoulder girdle in his report dated 31 October 2016 (R4) Dr Shahzad said that ‘soft tissue’ is an umbrella term used for chronic symptoms. Dr Shahzad said that the whole area around the trapezius area was used for ‘movement of arm’ activity and that he identified no particular pathology for Ms Bennett who had quite a generalised presentation.
Mr Offer referred Dr Shahzad to the following passage from his report dated 31 October 2016 (R4):
“Ms Bennett has physiotherapy to continue with her current level of function. She has developed dependency behaviour on physiotherapy. In the absence of such treatment, she would suffer from an aggravation of her neck and RSI condition.”
[emphasis added]
As to his reference to ‘dependency behaviour’ in paragraph 48 above, Dr Shahzad said that active physiotherapy is generally undertaken during the acute phase of injury. Dr Shahzad said that physiotherapists do try to stop prolonged physiotherapy sessions after 4 to 6 weeks. Dr Shahzad said that physiotherapy then becomes passive after time, and treatment becomes more focused on active rehabilitation and exercise. Dr Shahzad said that the role of self-managing one’s own injury in the passive phase is to increase confidence, take control of the injury and place less reliance on physiotherapy.
Mr Offer then took Dr Shahzad to the following extract from the joint statement (R3):
“Physiotherapy is used for maintenance and preventative purposes in [Ms Bennett’s] case. It does not resolve any acute conditions. It is employed as a form of prevention to avoid further exacerbations and resultant functional disability. [Ms Bennett] is dependent on these treatments to maintain her employability and commitment in a part-time role…From a biopsychosocial perspective, she has developed adaptation and in the absence of such treatment she is at high risk of suffering from resultant psychological health issues. The treatment offered is not based on best available research data for similar conditions…”
[emphasis added]
When asked about his reference to Ms Bennett having developed adaptation at paragraph 50 above, Dr Shahzad said that there was an issue with the continuation of Ms Bennett’s physiotherapy. Dr Shahzad said that this issue was the ‘physical need’ versus the ‘psychological need’ for physiotherapy treatment, which was ‘hard to apportion.’ Dr Shahzad said that he had spoken to Ms Bennett about discontinuing physiotherapy treatment and while Ms Bennett’s current symptoms were physical, there was also a strong psychological correlation. Dr Shahzad said that it was ‘not best practice’ that Ms Bennett had been undergoing physiotherapy treatment for such a long time. Dr Shahzad added that without physiotherapy, Ms Bennett would present with physical symptoms, comorbid with psychological symptoms that were not initially present.
When asked by Mr Offer, Dr Shahzad said that he agreed with Dr Jenkins that strengthening and stretching exercises do help in preventing injury.
Additional medical and other evidence
Ms Bennett, in her written submissions and at hearing, has drawn the Tribunal’s attention to Dr Bender’s undated medical certificate for compensation (T125, date of examination 12 July 2016) as evidence of support for the three to five sessions of physiotherapy postulated in the physiotherapy treatment notification plan that is the subject of the current reviewable decision (T114) because that certificate states that the reason for Ms Bennett’s physiotherapy is to ‘reduce muscle spasm.’
Historical Determination
In her supplementary statement of facts, issues and contentions dated 12 June 2017 and in oral submissions made at hearing, Mr Bruns advanced an argument for Ms Bennett that there is no room for Comcare’s contention that treatment to the neck and shoulder is not in relation to her injury (and essentially, the issue is settled) because the injury has always, since 15 March 1985, involved continuous symptoms of pain or aching in the right shoulder, neck and arm and headaches. Mr Bruns argued further that:
(a)the references to ‘RSI’ by Drs Jenkins and Shahzad (at paragraphs 35 and 47 above, respectively) and to ‘RSI (mild)’ in paragraph 9 of the Tribunal’s decision in Re Rosalie June Bennett and Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1991] AATA 331 (20 December 1991) (the ‘1991 determination’) (extracted at paragraph 55 below) are ‘shorthand’ references to Ms Bennett’s original injury that was suffered on 15 March 1985;
(b)Ms Bennett’s symptoms in 1985 are the same symptoms that she suffered in 1991. The symptoms Ms Bennett suffered in 1991 are referred to in paragraphs 42 and 43 of the 1991 determination (extracted at paragraph 55 below) and are the symptoms that are the basis of the present reviewable decision;
(c)the evidence is that there is a pattern of physiotherapy, which has decreased in frequency over time, such that Ms Bennett now attends two to three sessions of physiotherapy every three to four months;
(d)the proposed physiotherapy treatment is the latest plan in the series of this pattern of physiotherapy, setting out the proposal for treatment for the next little while; and
(e)Comcare’s focus on the diagnosis of Ms Bennett’s injury is misguided, the diagnosis being ‘the best guess of the aetiology, which may change over time’ and the injury being the result of the work related incident. Mr Bruns referred to the following paragraph in the Annotated Safety, Rehabilitation and Compensation Act 1988, 10th Edition (page 707):
“Injuries are not the same as diagnosis
57. One of the common issues which arises in proceedings is the practice of respondent identifying the “injury” or “disease” with the particular diagnosis provided by the treating medical practitioner. The “injury” is the “resultant effect of an incident or ailment upon the employee’s body” (Canute v Comcare (2006)). The diagnosis is just the best guess of the aetiology of the injury and may change over time as more relevant information comes to the attention of the medical practitioners. The diagnosis is not definitive of the injury (Abrahams v Comcare (2006); Australian Postal Corporation v Lucas (1991); Comcare v Mooi (1996); Re Douglas and Comcare (2004); Szabo and Comcare (2012))…”
In making the arguments set out at paragraph 54 above, Mr Bruns relied on the following paragraphs of the 1991 determination:
9. Next morning the applicant said that she woke with pain in the right shoulder. She said that she felt as though she had 'slept funny'. She reported this to Mr Terry Hicks, her manager, on Monday 11 March, and she went to see Dr Baguley, her general practitioner, on Friday 15 March. He made a provisional diagnosis of 'RSI (mild)'. She lodged a claim for compensation on 28 March 1985, and liability was accepted.
10. From this incident until August 1985 the applicant continued with her duties but concentrated at first on using her left arm because use of her right arm would make it ache. A junior was engaged to assist with her key-boarding duties. In June of 1985 however left arm symptoms commenced. She then lodged a compensation claim in respect of the left arm, and received compensation for medical expenses. She was diagnosed by Dr Baguley as having 'RSI' and two new persons were put into her area. The applicant trained these two, and once she had done so she again went to the doctor because the pain was getting worse. On 5 September 1985 Dr Baguley's certificate referred to 'quite severe RSI'.
11. From August 1985 to February/March 1986 the applicant was off work. She said that she had had continuous ache in her right shoulder and arm, and that she had also begun to have headaches. She received weekly payments for total incapacity for a period of six weeks.
18. In April the applicant said that she had a sudden pain in her right shoulder. Her supervisor had told her to go home, and her doctor recommended physiotherapy, which she underwent for four weeks.
24. The applicant's evidence was that from March 1985 her condition was essentially unchanged. She has and has had –
·continual neckache and pain right and (from June 1985) left, depending on what she is doing
·shoulder pain up into her neck and head
·pain down the arm
othe left side being less painful than the right
oand being mainly when writing
·upper limb pain
·problems with the spine, between the shoulder blades
These have had serious effects on her household, domestic and recreational activities. She does only basic cooking.
28. All medical witnesses accepted the fact of symptoms of shoulder and upper limb pain dating from 10 March 1985, and all except Dr Hanrahan and to a degree Dr Gubbay related this to the applicant's work. Dr Hanrahan considered that a relation in time was insufficient to make a deduction of cause, but Dr Gubbay agreed that he could not exclude the possibility that there may well be some connection between the applicant's employment and her condition.
35. Before reaching our conclusion it is important to set out the history of the determinations made in respect of the applicant which was as follows:
(i)12 April 1985: On this day it was determined that the applicant 'contracted a disease, namely Repetitive Strain Injury (mild) and her employment was a contributing factor to the contraction of that disease (subsection 29(10)). The said Rosalie Bennett first obtained medical treatment in relation to the disease on 15 March 1985. The disease is therefore deemed to be a personal injury to the said Rosalie Bennett arising out of her employment and 15 March 1985 is deemed to be the date of the injury (sub-section 29(2)). In accordance with section 27 of the said Act, the Department of Social Security is liable to pay compensation, in
respect of the said injury'….
42. The principal point relates, in the circumstances of this case, not to onus of proof but rather to the question of what the Tribunal has to be satisfied for the purposes of deciding whether the decision under review was correct. What it is open to the respondent to seek to establish is that the applicant's symptoms are discontinuous with her former symptoms that were the basis for the determinations. The respondent has asserted such discontinuity, and to that extent the maximum that s/he who asserts must prove applies (see Murphy J. in Commonwealth v Muratore [1978] HCA 47; 22 ALR 176 at 181-2). But before this Tribunal, once all the evidence is in it is for the Tribunal to make up its mind, on the basis of all of the facts and circumstances the subject of evidence, and in the light of the medical evidence before it, as to the issue that has been raised and having regard to the legislative provisions that are applicable: see McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354. That issue is whether the decision to terminate liability for compensation was correct, and, if it was not, whether a substituted decision made by the Tribunal should provide that the incapacity in the relevant period was total or merely partial.
43. The primary issue, putting on one side at that stage questions of onus of proof, is whether the incapacity derives from symptoms which remain part of the continuing course of symptomatology commencing on 11 March 1985, or whether they have some new origin. As to that issue, we are satisfied on the evidence that on 24 April 1990 and thereafter to the date of the hearing the applicant's symptoms remained those that had affected her in varying degrees since 10 March 1985 and that had been the subject of determinations that were in our opinion perfectly correct and which had never been challenged. That evidence, with the exception only of Dr Hanrahan, supported the finding of continuing symptoms. We find that the employment of the applicant by the Commonwealth has contributed to her continuing incapacity from 24 April 1990 to 18 December 1990 and from 8 January 1991 to 22 August 1991.
In response to Ms Bennett’s argument, Mr Offer for Comcare submitted that:
(a)While there is no question that Ms Bennett’s accepted injury is ‘repetitive strain injury (right) arm’, Ms Bennett had not sought to vary that description until introducing the 1991 determination at the hearing.
(b)Ms Bennett is relying upon the references to her symptoms of neck ache and neck pain in the 1991 determination to support her argument that the original injury for which liability was accepted includes injury to the neck area.
(c)There is a great difference between an injury (as defined in the Act) and the presentation of symptoms. If the 1985 injury related to the shoulder, then perhaps there would be some substance to Mr Bruns’ argument, however the injury for which liability was accepted was in relation to Ms Bennett’s arm and current evidence is that Ms Bennett’s injury is now in another area (the neck).
(d)The 1991 determination (referred to and extracted at paragraph 55 above) is addressing matters specifically relating to an earlier determination (being a determination dated 26 March 1990 that Ms Bennett’s entitlement to incapacity payments had ceased) and not matters relating to the specific nature of the injury in March 1985.
(e)The issue for review is whether the three to five sessions of physiotherapy in the proposed physiotherapy treatment are in relation to the injury. Comcare’s position is that those proposed sessions are not in relation to the injury because on the evidence Ms Bennett’s current symptoms relate almost entirely to the neck area, not the right arm).
(f)The evidence presented to the Tribunal for the purposes of the 1991 determination is different to the evidence before this Tribunal.
(g)It is not actually known as to whether the discussion of Ms Bennett’s neck and shoulder symptoms referred to in the 1991 determination are in reference to the injury suffered on 15 March 1985, or whether those symptoms have a genesis in the neck and to a lesser extent, the shoulder.
(h)Based on the above, the 1991 determination (referred to and extracted at paragraph 55 above) does not provide any assistance to the present application as it does not have the effect of having addressed any of the issues for review, in particular whether the proposed physiotherapy treatment was or would be obtained ‘in relation to’ her accepted injury.
(i)What this leaves is an accepted condition that has been in existence for a considerable period of time and as at 2016, when the treatment plan was devised by the physiotherapist, the right arm no longer appeared to be a feature.
CONSIDERATION
Whether the proposed physiotherapy treatment was or would be obtained ‘in relation to’ Ms Bennett’s accepted injury
Subsection 16(1) of the Act provides that 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.
Therefore, given the wording of subsection 16(1) of the Act, the first matter for the Tribunal’s consideration is whether the proposed physiotherapy treatment was or would be obtained ‘in relation to’ Ms Bennett’s accepted injury, being the physical or mental injury arising out of, or in the course of, the employee’s employment. In this context, the Tribunal notes the distinction between:
(a)An injury as defined in subsection 5A(1)(b) of the Act, being the “resultant effect of an incident or ailment upon the employee’s body” (Canute v Comcare (2006) 91 ALD 552).
(b)The diagnosis of a condition, which is the best guess of the aetiology of the injury and may change over time as more relevant information comes to the attention of the medical practitioners (see extract from the Annotated Safety, Rehabilitation and Compensation Act 1988, 10th Edition referred to at paragraph 54(e) above).
(c)A person’s experience of symptoms, which may or may not relate to the accepted injury and/or the diagnosed condition (noting again that the accepted injury and the diagnosed condition may or may not be one and the same).
As the accepted injury in the present application is a repetitive strain injury to the right arm, Ms Bennett’s present application can succeed only if the proposed physiotherapy treatment is in relation to this particular injury, as it presents currently.
For Ms Bennett’s reported neck and shoulder girdle symptoms to be considered as being in relation to this right arm injury, there would need to be clear medical evidence of a secondary relationship between any injury to Ms Bennett’s neck and shoulder area and the injury to her right arm. The Tribunal notes no submissions have been made in this regard and certainly there is no evidence to this effect.
While the diagnosis ‘repetitive strain injury,’ as with any medical diagnosis, is something that has the potential to change over time as further relevant and more recent information becomes available, it is reasonable to proceed to consider the issues for review on the basis that on 15 March 1985, Ms Bennett suffered an injury to the right arm.
Whether or not the specific injury continues to the diagnosed as ‘repetitive strain injury (right) arm’ to the present day is irrelevant. This is because what is in issue is whether the proposed physiotherapy treatment is in relation to Ms Bennett’s right arm injury, suffered on 15 March 1985, as it presents currently.
The Tribunal notes Ms Bennett’s submissions in her supplementary statement of facts, issues and contentions dated 12 June 2017 that the issue of “whether the proposed physiotherapy treatment relates to the accepted condition” was “settled by the reviewable decision” and refers to the 1991 determination. The Tribunal’s consideration of the 1991 determination is given at paragraphs 67 to 70 below.
As to Ms Bennett’s contention that the ‘in relation to’ issue has been settled (for this Tribunal) by the reviewable decision, the Tribunal takes a different view. As with all matters, the Tribunal reviews the decision before it on the merits, from the beginning. In doing so, while the Tribunal ‘stands in the shoes’ of the original decision maker, it is not confined to the evidence or materials that were presented in the original hearing. Similarly, the Tribunal is not compelled to uphold a previous finding or interim conclusion that was made on the basis of the original evidence. Certainly, if there is additional evidence or material available (which or may not ultimately disturb a previous finding) then due consideration is to be given to that information.
It is not in dispute that Ms Bennett’s accepted injury is ‘repetitive strain injury (right) arm,’ suffered on 15 March 1985. Nor is it in dispute that Ms Bennett’s ongoing physiotherapy treatment provides her with relief from symptoms. By Ms Bennett’s own evidence, and as reported in the proposed physiotherapy treatment notification plan (T114), these symptoms relate to her neck and right shoulder areas. There is no reference on the plan to any reports of pain in the right arm or the right arm being the site of any proposed treatment.
The Tribunal notes the following evidence:
· Ms Bennett said that physiotherapy provides relief to her current neck and shoulder symptoms.
· Drs Bender, Jenkins and Shahzad agree that physiotherapy treatment provides relief to Ms Bennett’s neck and shoulder symptoms, thereby having a beneficial effect.
· Drs Jenkins and Shahzad are of the view that there would be possible psychosocial issues or repercussions if Ms Bennett were to cease physiotherapy.
· Drs Jenkins and Shahzad note a history of there being an occasional issue with Ms Bennett’s right arm, but not at the time of their most recent assessments in 2016.
· The physiotherapy referral from Dr Bender dated 12 April 2016 (T111) refers to Ms Bennett’s condition as being “symptoms flare trapezius spasm.”
· The proposed physiotherapy treatment plan (T114) report Ms Bennett’s current symptoms and physical assessment findings as being in relation to the ‘cervical, thoracic right side flexion rotation at 4/5.’ In the plan, the standard outcome measures for the assessed scores provided relate to the ‘Neck Disability Index.’ Dr Jenkins said that these extracts indicated that at this point in time, Ms Bennett’s treatment focus is on her neck.
· None of the symptoms listed in the proposed physiotherapy treatment plan (T114) refer in any way to Ms Bennett’s right arm, either in the sense of there being an injury to her right arm, any symptoms experienced in her right arm or her neck and shoulder symptoms being secondary to her right arm condition.
· Neither Dr Jenkins nor Dr Shahzad made any reference at all to Ms Bennett’s neck and shoulder being affected by her arm condition.
The role of the historical determination
Mr Bruns advanced a number of arguments on behalf of Ms Bennett in relation to reliance of the 1991 determination (at paragraph 54 above). In doing so, Mr Bruns is essentially asking the Tribunal to accept that even in the absence of the 1985 determination itself:
(a)the 1991 determination (the relevant extracts of which are set out at paragraph 55 above) represents the characterisation of the injury suffered in 1985; and
(b)between 1991 and 2016, nothing has changed in this regard.
The Tribunal’s response to this request is that it cannot, from a 1991 determination that:
·relates to a cessation of entitlements to incapacity compensation;
·makes no reference to the original determination granting initial liability in relation to Ms Bennett’s injury on 15 March 1985;
·makes no reference to Ms Bennett’s accepted injury of repetitive strain injury (right) arm; and
·refers to Ms Bennett’s symptoms of ‘neck ache’ and ‘neck pain,’
extrapolate and infer from this determination that:
(a)the injury suffered by Ms Bennett on 15 March 1985 was also in relation to her neck and shoulder and that she continued to suffer from that same injury now; or
(b)whilst the injury suffered by Ms Bennett on 15 March 1985 was in relation to her right arm, the neck and shoulder symptoms referred to in the 1991 determination related to and are secondary to that right arm injury in 1985 and the neck and shoulder symptoms that continue today also relate to the right arm injury suffered in 1985.
Further, the Tribunal considers that even if:
·the original determination granting liability under the 1971 Act in relation to the injury sustained on 15 March 1985 was either referred to in the 1991 determination or available as a stand-alone document; and
·that determination referred to Ms Bennett suffering from neck and shoulder symptoms at the time,
the inferences set out at sub-paragraphs 68(a) and (b) could still not be drawn, because the evidence and materials before the decision maker in relation to those determinations is different to that which was available to subsequent decisions makers, including this Tribunal.
For these reasons, the Tribunal finds that the 1991 determination does not provide any assistance in the present application.
Mr Bruns also espoused the view that “Comcare’s focus on the diagnosis of Ms Bennett’s injury is misguided.” Respectfully, this Tribunal understands Comcare’s focus to be on the substance and characterisation of the injury, including the area of the body to which the injury relates, as that is the area to which current treatment needs to be focused in order to be compensable. As the Tribunal sees it, there is no focus on the diagnosis on Comcare’s part and nothing turns on this point in any event.
Overall, the Tribunal finds that no evidence has been presented to indicate that in 2016 there was any problem or symptoms then apparent requiring physiotherapy treatment to Ms Bennett’s accepted injury of ‘repetitive strain injury (right) arm.’ There is also no evidence to suggest that Ms Bennett’s accepted injury could be characterised as anything beyond or in addition to an injury to her right arm and certainly not anything that would encompass symptoms relating to the neck and shoulder.
As the Tribunal has found that Ms Bennett’s proposed physiotherapy was not or would not be obtained in relation to her accepted injury, it is unnecessary for the Tribunal to consider whether the physiotherapy treatment received by Ms Bennett is ‘medical treatment’ or whether the proposed treatment was ‘reasonable to obtain in the circumstances.’
CONCLUSION
Ms Bennett seeks an order that the reviewable decision should be set aside, which would have the effect of rendering Comcare liable for the cost of the proposed physiotherapy treatment.
The Tribunal finds that while Ms Bennett clearly achieves relief from physiotherapy treatment, the evidence demonstrates that such relief is in relation to the neck and shoulder girdle areas. Significantly, there is no evidence to indicate that:
(a)the neck and shoulder symptoms Ms Bennett experiences are in any way related to the injury;
(b)Ms Bennett experiences currently experiences any symptoms in her right arm; and
(c)Ms Bennett’s right arm is one of the areas of her body that is treated with physiotherapy.
In the circumstances, the Tribunal finds that the proposed physiotherapy treatment is not or would not be obtained ‘in relation to’ the injury within the meaning of subsection 16(1) of the Act. As such, the Tribunal has not considered whether the proposed physiotherapy treatment is ‘medical treatment’ and if so, whether it was ‘reasonable to obtain in the circumstances.’
DECISION
For the reasons outlined above, Comcare’s reviewable decision of 6 July 2016 that the Applicant is not entitled to compensation for physiotherapy treatment pursuant to section 16 of the Act in respect of her accepted injury of ‘repetitive strain injury (right) arm’ is affirmed.
I certify that the preceding 77 (seventy seven) paragraphs are a true copy of the reasons for the decision herein of
................[sgd]........................................................
Administrative Assistant - Legal
Dated: 9 August 2017
Date(s) of hearing: 13 June 2017 Counsel for the Applicant: Mr D Bruns Representative for the Applicant: Ms K Dempster Solicitors for the Applicant:
Counsel for the Respondent:
JDK Legal Services
Mr T Offer
Representative for the Respondent: Ms A Ladhams Solicitors for the Respondent: Australian Government Solicitor
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