Bhat and Comcare (Compensation)

[2018] AATA 2094

Bhat and Comcare (Compensation) [2018] AATA 2094 (5 July 2018)

Division:                  GENERAL DIVISION

File Number(s):      2016/2466

2016/6982

Re:Shashi Bhat

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:5 July 2018

Place:Sydney

2016/2466

The reviewable decision dated 16 March 2016 is affirmed.

2016/6982

The reviewable decision dated 21 November 2016 is affirmed.

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

Senior Member A Poljak

CATCHWORDS

COMPENSATION – workers compensation – chronic back pain – section 16 claim –physiotherapy treatment – treatment provides temporary alleviation not permanent improvement – no other medical treatment recommended – section 19 claim – incapacity for work – applicant fit for normal work duties – decisions under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16, 19

CASES

Bashar v Comcare [2002] FCA 837

Chowdhary v Comcare [1998] AATA 448
Comcare Australia v Rope (2004) 135 FCR 443

Comcare v Holt (2007) 94 ALD 576

REASONS FOR DECISION

Senior Member A Poljak

5 July 2018

1. Mr Shashi Bhat, the applicant, has been employed by the Australian Taxation Office (“ATO”) since 2003 as a Customer Service Representative.

2. On 18 December 2009, the applicant suffered a ‘lumbar sprain’ at work when his desk chair failed (“compensable condition”). On 5 March 2010, the respondent accepted liability to pay compensation to the applicant pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). Liability was also accepted to pay compensation pursuant to section 16 of the Act in respect of medical treatment obtained in relation to the compensable condition, up to and including 8 January 2010. Further determinations have also been issued accepting liability to pay compensation to the applicant for various treatments pursuant to section 16 of the Act.

3. The applicant has received compensation under section 16 of the Act in respect of 67 sessions of physiotherapy treatment and 44 sessions of massage treatment.

4. On 21 January 2016, the ATO, as delegate for the respondent, issued a determination stating that physiotherapy treatment received by the applicant was no longer reasonably required in relation to the compensable condition in accordance with section 16 of the Act. Following reconsideration, the ATO affirmed the determination on 16 March 2016. This is the first application under review in these proceedings (“2016/2466”; “first application”).

5. On 14 September 2016, the ATO, as delegate for the respondent, issued a determination stating that the applicant had no present entitlement to compensation in respect of incapacity benefits under section 19 of the Act and no entitlement to compensation in respect of medical treatment under section 16 of the Act for the compensable condition. Following reconsideration, the ATO affirmed the determination on 21 November 2016. This is the second application under review in these proceedings (“2016/6982”; “second application”).

6. The issues for determination in these proceedings are as follows:

   (a)whether the applicant continues to suffer the effects of the compensable condition; and if so,

   (i)whether the compensable condition continues to result in a requirement for physiotherapy treatment pursuant to section 16 of the Act after 3 February 2016;

   (ii)whether the compensable condition continues to result in a requirement for medical treatment generally pursuant to section 16 of the Act after 1 October 2016; and

   (iii)whether the compensable condition continues to result in incapacity for work pursuant to section 19 of the Act after 14 September 2016.

   Medical Evidence and Continuation of Effects of Compensable Condition

7. The applicant claims that since he returned to work in about the middle of February 2010, he has continuously suffered background back pain and also suffers flare-ups of more intense pain on occasion. He states that when he experiences pain flare-ups, it has been necessary for him to take time off from work.

8. Dr Matthew Paul, an independent occupational physician, assessed the applicant on 9 June 2010, and provided a report dated 24 June 2010. Dr Paul recorded that the applicant said his pain was present at 1/10 severity with occasional aggravations resulting in 2/10 severity. He noted that the applicant reported his pain worsened over time however, he noted that the applicant was capable of taking leave and going on holiday to India in January for 6 weeks and was able to tolerate the more than 10 hour flight. On informal examination, Dr Paul noted that the applicant sat comfortably in the waiting room, walked easily, sat comfortably throughout the 60 minute interview and at no time appeared to be in any discomfort and he moved easily throughout the examination. Dr Paul assessed the applicant as having chronic lower back pain and that the applicant has developed fear avoidance behaviour. He stated that there was no medical reason why the applicant should be restricted from any activity at work. Dr Paul recommended that the applicant return to his full pre-injury duties without any restrictions.

9. An MRI report of the applicant’s lumbar spine dated 2 August 2011, showed disc desiccation at L4/5 and L5/S1 with bulging at both levels but no neural compression. It appears that on 24 August 2016, the applicant underwent a further MRI of his lumbar spine. I do not have a copy of the radiological report available in evidence. However, Dr Matthew Giblin, Orthopaedic Surgeon, records in his report dated 31 August 2016, “the MRI showed no significant change compared to the 2 August 2011. He still has disc desiccation at L4/5 and L5/S1 and a small annular tear at L5/S1”. Associate Professor Neil McGill, consultant rheumatologist, notes in his report dated 1 December 2016, that the applicant provided him with imaging studies conducted on 24 August 2016. He notes that the MRI of the applicant’s lumbar spine showed “exactly the same findings as those demonstrated in August 2011”.

10. The clinical notes from the Liverpool Family Medical Centre (“Clinical Notes”) record a consistent history of lower back pain, experienced on a fluctuating basis with occurrences of exacerbation. The most recent records show that in consultation notes on 17 April 2015, Dr Zaki records “hx some recent acute exacerb of low back pain”. On 1 July 2015 Dr Zaki notes, “recent hx exacerb of his ch low back pain” and notes that the applicant said, “twisted back recently work whilst moving office related items form to to ground floor felt pain since”. A referral letter was documented and in the consultation notes of Dr Mahajan on 16 July 2015, it was noted “C5/6 mild disc prolapse”. On 31 March 2016, Dr Zaki records a history of “some recent rather mild exacerb of lower back pain”. Most recently, the consultation notes of Dr Bangash on 16 August 2016, record that the applicant has been suffering from chronic recurrent low back pain due to disc degeneration at L4/5 and L5/S1. He notes that the applicant’s “pain has relapsed”.

11. On 14 December 2015, a Clinical Panel Review was conducted by Harry Papagoras in consultation with Ms Mardini, a musculoskeletal physiotherapist. In conclusion it was noted that the applicant had a “chronic lower back injury” with the date of injury in December 2009. It was further noted that there had been a significant gap in treatment provided to the applicant for the injury over 2 years from 8 July 2013 to 14 July 2015, with treatment resuming on 14 July 2015 to manage an exacerbation. I do note however that the spreadsheet setting out the medical expenses paid by the respondent documents the continuation of “massage” treatment received by the applicant from Prime Physiotherapy Pty Ltd and privately during July 2013 and July 2015.

12. In a report dated 1 December 2016, A/Prof McGill notes that on examination the applicant provided a clear history, was cooperative and that there was no discrepancy in his presentation or function. However he notes that on several occasions while providing the history the applicant made comments that “suggested his fears in relation to his back were out of proportion to the reality”. He notes that the applicant had three MRI examinations of the lumbar spine and that the studies performed on 2 August 2011 and 24 August 2016, were both available for review and were identical. He reports that both radiological studies demonstrated minor degenerative change with disc desiccation and bulging of the disc annulus at L4/5 and L5/S1. He states that the findings were of a type commonly found in the applicant’s age group and were usually not associated with symptoms. A/Prof McGill opines that the “minor degenerative changes in [the applicant’s] back are unlikely to have been influenced by the work event in December 2009” and that “the lack of change between August 2011 and August 2016 argues against a sudden change in pathology in December 2009”.

13. In conclusion, A/Prof McGill states the following:

    “His prognosis with respect to his symptom reporting is very dependent on his psychological make-up and is not accurately predictable on the basis of physical findings. His overall prognosis is good although severe obesity increases his risk of a range of health problems.

    I think the appropriate label for the condition experienced in December 2009 was a acute sprain with secondary muscle spasm. The detection of minor disc abnormalities may well have contributed to his concern but those abnormalities are unlikely to have been influenced by the work incident.”

14. At hearing, A/Prof McGill confirmed that there was no abnormality (radiological) that could be linked to the applicant’s work and neither was there any mechanical injury caused by the incident in 2009. He stated that in the absence of radicular symptoms, further radiological imaging was not appropriate. He also stated that if there was no change in the applicant’s symptomology then ongoing review by the applicant’s general practitioner and specialist was not appropriate and that further review was not required. He said that this creates concern when there is “no need for intervention”.

15. Dr Pillemer, Orthopaedic Surgeon, in his report dated 28 March 2017, opined that the compensable condition was either the cause of the applicant’s ongoing problems or was the main contributing factor to any aggravation that might have occurred. He states that any aggravation suffered by the applicant still seemed to be continuing. Dr Pillemer’s opinion is consistent with the clinical notes.

16. At hearing, Dr Pillemer said that the MRI imaging of the applicant’s back between 2011 and 2016 remained the same. He said that degenerative discs do not improve and that annular tears are consistent with pain symptomology. In summary, Dr Pillemer said that the applicant’s symptoms equate with the findings on MRI. In cross examination, Dr Pillemer accepted that there appeared to be a difference between the MRI reports from 2011 and 2016 but said that no emphasis should be placed on the discrepancy. He accepted that the finding of an annular tear in 2016 was significant however stated that it was possible that the annular tear was present in August 2011, and was “just not picked up”. In any event he confirmed that this finding in the 2016 MRI report would not change his opinion.

17. For the above reasons, I am satisfied that the applicant continues to suffer from the effects of the compensable condition.

    Requirement for Physiotherapy Treatment

18. Physiotherapy treatment falls within the scope of the definition of “medical treatment” in section 4(b) of the Act, on the basis that it is therapeutic treatment (treatment given for the purpose of alleviating an injury) under the supervision of a registered physiotherapist.

19. The applicant claims that massage treatment and physiotherapy assist him in performing his duties at work and that massage treatment alleviates his stiff muscles, which in turn increases his ability to move and also improves his quality of life outside of work.

20. Dr Paul noted in his report dated 24 June 2010, that it had been 6 months since the applicant’s injury and the applicant had been very passive in his treatment. He advised that the applicant needed to drive his own rehabilitation and be active as possible within his levels of pain. He reported that the applicant’s fear of paralysis was irrational and that he needed to move beyond fear avoidance behaviour and embrace activity.

21. Ms Zena Mardini, states in a report dated 23 May 2016 that due to the applicant’s injury, she believed that he has developed chronic pain in nature. She opined that the applicant “will benefit from continuing physiotherapy and massage sessions to reduce muscle tension and improve ROM”. She also advises that the applicant should continue his home based exercise program.

22. Dr Giblin, Orthopaedic Surgeon, is an advocate for the applicant’s ongoing need for regular physiotherapy or in the alternative, massage treatment. In his most recent report dated 4 October 2016, he states:

    “I think the best opportunity to effect a good result is physiotherapy, massage etc., on a needs be basis so as to keep him at work and stop his problem from deteriorating and it may in fact resolve many of the issues he is currently having. Without the intermittent need be physiotherapy, I think he will decline.”

23. A/Prof McGill and Dr Pillemer do not agree. They instead advise that the ideal treatment is for the applicant to lose weight and engage in regular exercises. This is consistent with the Clinical Framework.

24. A/Prof McGill states in his report dated 1 December 2016, that further massage, physiotherapy or similar treatments were not appropriate and were in fact counter-productive, regardless of the influence of the applicant’s employment on the incidence of symptoms. He felt that regular exercise and weight loss would be advantageous, while occasional simple analgesia was also safe but unnecessary. At hearing, A/Prof McGill reiterated that the applicant should continue to focus on exercise and weight loss and that this was the ideal treatment for the applicant’s long-term health. He said massage was a “treat not treatment” and that it only had a short-term effect in that moment but it was not therapeutic and would not make any substantial improvement to the applicant’s condition or symptomology.

25. Dr Pillemer similarly advised in his report dated 28 March 2017, that nothing surgical was indicated for the applicant and it is unlikely to be indicated in the future. He stated:

    “He would certainly be advised to continue losing weight and try to do regular exercises to build up his core strength, and he can take oral medications as necessary. Ongoing physiotherapy and massage treatment in my opinion would not be regarded as being medically necessary.”

26. When considering the efficacy of treatment it is useful to have regard to the Clinical Framework for the Delivery of Health Services (“Clinical Framework”) which outlines a set of guiding principles for allied health professionals. The principles are intended to support healthcare professionals in the treatment of an injury through measurement and demonstration of the effectiveness of treatment; adoption of a biophysical approach; empowering the injured person to manage their injury; implementing goals focused on optimising function, participation and return to work; and treatment based on best available research evidence. The Clinical Framework provides:

    “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 rise. 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.” [Emphasis added]

27. The principles contained in the Clinical Framework are of particular relevance in this matter. On the evidence, it is plain that the applicant demonstrated fear avoidance behaviour and irrational fear as far back as June 2010, some 6 months after the injury. Since that time, despite obtaining numerous massage treatments and physiotherapy treatment his symptomology has persisted and has been consistent in nature. Additionally Ms Mardini reports that as a result of the injury, the applicant has developed chronic pain in nature. It is evident from the Clinical Notes that the applicant has been advised to lose weight and engage in regular exercises and/or increase his activity. This advice is no doubt designed to empower the applicant to become independent in managing his symptomology. I am not convinced that he has taken an active role in managing his condition as independently as possible.

28. To date the applicant has received 67 sessions of physiotherapy treatment and 44 sessions of massage treatment at a cost to the respondent. In assessing the reasonableness of the treatment, I am required to undertake a cost/benefit analysis and to weigh up any benefit that the applicant may obtain from physiotherapy against the cost of providing it; Comcare Australia v Rope (2004) 135 FCR 443 at [17] and Comcare v Holt (2007) 94 ALD 576 at [25].

29. In Chowdhary v Comcare [1998] AATA 448 at [53], the Tribunal decided:

    “While provision of temporary relief from pain through physiotherapy will in many circumstances qualify as medical treatment which it is reasonable for an employee to obtain, there will in some cases come a point where it is no longer reasonable unless it is part of a plan for permanent improvement in the health of the employee.”

30. The cost of physiotherapy treatment received by the applicant since 2009 has been considerable resulting in temporary alleviation of his symptoms with no permanent improvement. The evidence does not support a conclusion that physiotherapy is part of a plan for the permanent improvement in the applicant’s health nor does the evidence support a finding that the treatment has a discernible effect on the applicant’s condition or prevent deterioration; see Bashar v Comcare [2002] FCA 837 at [12].

31. On balance, I am not satisfied that it is reasonable for the applicant to obtain physiotherapy treatment for the compensable condition in the circumstances.

    Medical Treatment (generally)

32. In respect of the applicant’s need for ongoing medical treatment generally, there is presently no treatment recommended to the applicant other than weight loss and home-based, self-directed exercises. Analgesia is safe but not medically necessary. This is apparent on the evidence of A/Prof McGill and Dr Pillemer.

    Incapacity for Work

33. The applicant claims that he requires time off from work when he suffers periodic flare-ups of his injury and as such is entitled to claim compensation for incapacity under section 19 of the Act.

34. “Incapacity for work” is defined in section 4(9) of the Act and can be a total of partial capacity. Section 4(9) of the Act provides:

    “A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

    (a)  an incapacity to engage in any work; or

    (b)  an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”

35. The Clinical Notes and various WorkCover medical certificates demonstrate that the applicant has required occasional time off from work during periods of exacerbation and/or flare-ups of his condition. These periods of time off from work are however sporadic and do not establish that the applicant’s condition has been debilitating so as to render him unfit for work or unable to perform his work duties at his pre-injury capacity.

1. WorkCover medical certificates and incapacity payments for the year 2016 correlate with times that the applicant attended on his orthopaedic surgeon, general practitioner, underwent medical imaging and for a single massage treatment. The Clinical Notes from 29 January 2016 and 25 May 2016 do not record any significant debilitating event demonstrating that the applicant was incapacitated for work as a result of the compensable condition. On 18 August 2016 the applicant attended on Dr Giblin on the request of the respondent and underwent a repeat radiological assessment on 24 August 2016. He again attended on Dr Giblin on 31 August 2016, for a follow up appointment. The applicant took time off work for these appointments and received incapacity payments. I do not intend to query payments already made to the applicant, but address the evidence because it does not support a finding that during 2016, the applicant was incapacitated for work on occasion as a result of his compensable condition; it was not a result of debilitation or a “flare-up” rendering him unfit for work or unable to perform his duties in a full or limited capacity. If the applicant has previously taken time off work for treatment for the compensable condition, this is no longer relevant as I have already found that in the circumstances, it is not reasonable for the applicant to obtain either physiotherapy treatment or medical treatment (generally) for the compensable condition.

2. There is very limited evidence before me that the applicant suffers from incapacity from September 2016 onwards.

3. A/Prof McGill advised that the applicant was fit for his full normal work duties and was performing those.

4. Dr Pillemer opined in his report dated 28 March 2017, that the applicant was able to work his pre-injury duties with the occasional day off “when his symptoms flared up”. It is not easily apparent how Dr Pillemer formed the opinion that the applicant took the “occasional day off” and it is not apparent whether Dr Pillemer intended to convey that the applicant’s occasional day off was because he was incapacitated and unfit for work. From the body of the report it appears that the applicant self-reported taking 1 to 2 weeks off work per year when his symptoms got very bad. 

5. At hearing the applicant stated that since July 2016 he has needed to take time off work “from time to time” and he said that this was due to a significant increase in pain despite taking analgesia. He said that he could not function due to the pain for 1 to 2 days. This is not supported by any objective evidence and as such, I am not convinced that the applicant suffered from incapacity, either total or partial, as a result of his compensable condition from September 2016 onwards.

6. Accordingly, for all of the above reasons I find that the applicant no longer suffers from incapacity for work as a result of the compensable condition on and from 14 September 2016.

   Decision

7. For all the above reasons I affirm the reviewable decisions dated 16 March 2016 and 21 November 2016.

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: 5 July 2018

Date(s) of hearing:	4 & 5 October 2017
Counsel for the Applicant:	J Dodd
Solicitors for the Applicant:	Slater & Gordon Lawyers
Counsel for the Respondent:	C Dowsett
Solicitors for the Respondent:	HBA Legal