Bich-Chuong Doan and Australian Postal Corporation
[2014] AATA 66
•12 February 2014
[2014] AATA 66
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Numbers | 2013/1102, 2013/1104 and 2013/1373 |
| Re | Bich-Chuong Doan |
| APPLICANT | |
| And | Australian Postal Corporation |
| RESPONDENT |
DECISION
| Tribunal | G. D. Friedman, Senior Member |
| Date | 12 February 2014 |
| Place | Melbourne |
The Tribunal sets aside the decisions under review in Applications 2013/1102, 2013/1104 and 2013/1373 and substitutes the following decision:
1. (a) From 4 January 2013 to the present date and at the present date Ms Doan continued to suffer incapacity at her normal level as a result of injury to the chronic lateral and medial epicondylitis of the right and left elbow/arm and right shoulder tendonitis which give rise to entitlement to compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).
(b) From 4 January 2013 to the present date and at the present date Ms Doan is entitled to compensation pursuant to s 16 of the SRC Act.
(c) Ms Doan is particularly entitled to compensation pursuant to s 16 of the SRC Act for the costs of autologous blood injections for the treatment of epicondylitis proposed by Dr Andrianakis in his letter of 31 August 2012.
(d) From 4 January 2013 to the present date and at the present date Ms Doan is entitled to compensation in respect of incapacity for work pursuant to s 19 of the SRC Act in respect of all periods when her actual earning were less than the normal weekly earnings.
2. The respondent shall pay Ms Doan’s reasonable legal costs and disbursements of the proceedings to be agreed, or taxed in default of agreement, in accordance with the latest Practice Direction of the Tribunal.
........................[sgd]................................................
G. D. Friedman, Senior Member
COMPENSATION – right shoulder and right and left elbow injuries – previously accepted conditions – whether liability has ceased – autologous blood injections – whether liability for medical treatment
Safety, Rehabilitation and Compensation Act 1988 s 16, 19
REASONS FOR DECISION
G. D. Friedman, Senior Member
12 February 2014
Bich-Chuong Doan has worked for the respondent since 2003 as a postal delivery officer and in 2009 she suffered an injury to her left and right arms while sorting mail. The respondent accepted liability for mild medial epicondylitis at both elbows. In 2011 the respondent accepted liability to pay compensation for diffuse soft tissue injury of the right and left elbow/arm instead of the earlier condition. On 30 January 2013 the respondent made a reviewable decision that there was no liability at 4 January 2013 or to date for compensation for incapacity and medical treatment for the elbow condition (Application 2013/1102).
In 2010 Ms Doan suffered an injury to her right shoulder. In 2011 the respondent accepted liability for right shoulder bursitis. On 18 March 2013 the respondent made a reviewable decision that there was no liability at 4 January 2013 to the present date for compensation for incapacity and medical treatment for right shoulder injury that was sustained on 28 April 2010 (Application 2013/1373).
On 31 August 2012 Ms Doan’s general practitioner recommended to the respondent that Ms Doan receive autologous blood injections (involving the extraction of Ms Doan’s blood which was filtered and then injected into her elbow joints). On 15 January 2013 the respondent made a reviewable decision that there was no liability for medical costs associated with the provision of this treatment (Application 2013/1104).
Ms Doan seeks review of the decisions.
LEGISLATIVE BACKGROUND
Section 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provide:
16 Compensation in respect of medical expenses etc.
Where an employee suffers an injury, [the respondent] 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.
…
19 Compensation for injuries resulting in incapacity
…
(2) Subject to this Part, [the respondent] is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated
ISSUES
The issues before the Tribunal are:
Does Ms Doan presently suffer from the effects of the injury to her elbows?
Does the respondent have present liability for compensation for incapacity and medical treatment for right shoulder injury?
Does the respondent have liability for medical costs associated with the provision of autologous blood injections?
DOES MS DOAN PRESENTLY SUFFER FROM THE EFFECTS OF THE INJURY TO HER ELBOWS?
Ms Doan told the Tribunal that she commenced with the respondent as a mail delivery officer sorting mail and parcels at the Moorabbin Business Centre. She said that the 2009 injury occurred when she was placing parcels in unit load device (ULD) containers on 6 August 2009 and she felt soreness in her right elbow. She lodged a compensation claim in respect of her left and right arms and hands, and on 30 December 2009 the respondent accepted liability for mild medial epicondylitis at both elbows. A rehabilitation return to work program was implemented and Ms Doan returned to work on pre-injury hours of three hours each day for five days each week, but on restricted duties.
Ms Doan said that the respondent refused to pay for medical treatment for the left and right elbow injuries but after she sought review by the Tribunal the matter was resolved by consent on 21 June 2011. The respondent accepted liability for diffuse soft tissue injury of the right and left elbow/arm (rather than mild bilateral epicondylitis) with the date of injury agreed to be 17 November 2009. As part of her treatment she consulted a hand therapist. She also undertook physiotherapy and was recommended stretching exercises for her arms.
In respect of her current situation Ms Doan stated that she continues to suffer pain in both elbows. She has difficulty in sleeping and using the keyboard of her home computer. She requires the use of supporting braces/bandages on her elbows when she is driving her car, and has difficulty dressing and undressing. Her husband helps with household duties such as housework and the preparation of meals. She takes prescribed medication, including inflammatories, to deal with the pain, and uses heat pads, Voltaren gel and a hot water bottle to assist her in managing the pain. Ms Doan said that she remains working on restricted duties for three hours each day.
Dr H Sutcliffe, occupational physician, examined Ms Doan on 20 October 2010 and stated in a report dated the same day that Ms Doan suffered from work-related elbow injuries comprising bilateral medial and lateral epicondylitis of both elbows with some element of right ulnar nerve involvement. Dr Sutcliffe re-examined Ms Doan on 19 December 2012 and found that the symptoms persisted and were consistent with the earlier diagnosis.
In a further report dated 28 January 2014 Dr Sutcliffe stated that she re-assessed Ms Doan on 19 December 2013 and was told that Ms Doan performed daily exercises to her arms but that these result in further pain and ongoing discomfort in both elbows. She noted that a bilateral ultrasound performed on 28 March 2013 showed mild left common flexor tendon origin tendinopathy. Dr Sutcliffe concluded that following her clinical examination and perusal of reports from other medical practitioners Ms Doan continues to show symptoms of medial and lateral epicondylitis in the left and right elbows as a result of work-related duties, despite a lack of findings at ultrasound on the right elbow and in the lateral aspect of the left elbow. Consequently the diagnosis remains unchanged.
In oral evidence Dr Sutcliffe stated that in assessing a patient suffering the symptoms reported by Ms Doan, the examiner relies on clinical skills comprising an assessment of the patient’s history and the response to various tests such as palpating or touching the affected area and eliciting a reaction such as pain or tenderness.
Mr B Reid, general surgeon, examined Ms Doan on 13 December 2010. In a report of the same date he took a detailed history of her duties and her pain in both elbows which she said had continued since 2009. He said that an ultrasound on both elbows taken on 21 April 2010 showed tendinopathy of the common flexor origins on both sides. An MRI showed no abnormalities. In carrying out a detailed clinical examination Mr Reid found tenderness of the medial and lateral epicondyles of both elbows, more marked on the right than on the left. He found a normal range of movement in both elbows but pain on flexion and extension against strong resistance, and diagnosed mild to moderate medial epicondylitis on both elbows and mild lateral epicondylitis at both elbows.
Mr Reid said that the injuries were caused by repeated movement of the elbows in flexion/extension and in pronation/supination (facing downwards or upwards) of the forearms during the course of Ms Doan’s work with the respondent. He suggested that cessation of work for about three months might assist her in reducing the pain.
In a report dated 8 August 2013 Mr Reid said that he took a further history and re-examined Ms Doan on 8 August 2013. He noted the same symptoms as in his earlier examination, with pain reported in both elbows. An ultrasound of both elbows on 28 March 2013 showed…a left common flexor tendon origin tendonopathy. Both common extensor origins and the right common flexor origin were normal. Mr Reid said that his clinical findings indicate that Ms Doan has continuing medial and lateral epicondylitis of both elbows.
Mr M Melamed, physiotherapist, stated in a report dated 3 September 2013 that Ms Doan had been undertaking physiotherapy at his practice from 7 December 2011 until 7 December 2012 for bilateral elbow pain, when the respondent terminated funding. He said that she consulted him on 3 August 2013 complaining of bilateral elbow pain and she had five sessions before Medicare funding ceased. Mr Melamed diagnosed chronic golfer’s elbow (medial epicondylitis) and tennis elbow (lateral epicondylitis) and treated her with ultrasound, soft tissue massage and shoulder stretches. Mr Melamed stated that Ms Doan would benefit from manual therapy for relief and a supervised strengthening/clinical Pilates program, together with a multidisciplinary pain management program.
Dr P Andrianakis, general practitioner, stated in a report dated 26 September 2013 that Ms Doan first consulted him on 26 August 2011 and complained of pain since 2009 that was radiating down from her forearms. He noted some improvement during subsequent consultations, but from 17 November 2011 she complained of pain in both elbows and was placed on light modified duties. She undertook physiotherapy which had positive results. Dr Andrianakis diagnosed soft tissue inflammation in her elbows and forearms, and stated that the pain was exacerbated by the repetitive nature of her duties. He said that an ultrasound of her elbow on 28 March 2013 showed left common flexor tendinopathy. He concluded that Ms Doan continued to suffer bilateral elbow pain and forearm pain, particularly with the nature of her duties, and her work has been the major contributing factor. He suggested that she faces an unclear prognosis.
Mr R Haig, consultant orthopaedic surgeon, stated in a report dated 5 October 2012 that on 25 September 2012 he examined Ms Doan, accompanied by her husband, who interpreted for her because her command of English was poor. He took a history of elbow pain since 2009 and she described constant pain in both elbows. On examination he found no deformity and a full range of motion. There was no convincing tenderness of either the medial or lateral epicondyle on either side and the provocation tests of wrist flexion and extension against resistance were negative.
Mr Haig considered that Ms Doan may well have suffered a medial and/or lateral epicondylitis of both elbows…in those early days (around November 2009) but at the time of examination there was no MRI evidence of any abnormality. He referred to the description of Ms Doan’s mail handling as provided by the respondent and stated that the description of her handling mail …appears somewhat bizarre. He considered that there were non-organic factors operating …and indeed dominating the clinical picture.
In a supplementary report dated 5 November 2012 Mr Haig stated that based on Ms Doan’s presentation on 25 September 2012 he did not have a diagnosis for the elbow complaints, with no positive findings on examination to support a diagnosis of lateral or medial epicondylitis. He did not believe that the conditions met the definition of injury in the SRC Act because there was no connection with her work.
In oral evidence Mr Haig stated that in conducting his clinical examination of Ms Doan he looked at her face for signs of wincing or other evidence of pain or tenderness when he touched her, and did not observe facial reaction. He said that there was no need for ultrasound or MRI investigation. Under cross-examination he stated that he could find no pathology to support any diagnosis, so he inferred illness belief or non-organic factors. Mr Haig agreed that during his physical examination of Ms Doan he observed her reactions and did not rely on her husband to interpret, despite her poor command of English.
Dr K Fraser, rheumatologist, stated in a report dated 22 December 2009 that he first saw Ms Doan on 21 December 2009 when he diagnosed work-related mild medial epicondylitis in both elbows. On 25 June 2010 he reported that he re-examined her and found that the work-related condition had resolved. He concluded that any remaining symptoms of upper arm pain were due to non-organic factors that were unrelated to her work. On 29 July 2010 he noted that an MRI preformed on 23 July 2010 showed no evidence of epicondylitis on either elbow.
In a further report dated 22 January 2014 Dr Fraser acknowledged receipt of reports including those from Dr Andrianakis, Mr Reid and Mr Melamed which found indications of ongoing epicondylitis in both elbows. Dr Fraser said that clinical assessments are subjective and that musculoskeletal ultrasound examinations are notoriously unreliable. Dr Fraser stated that there was nothing in recent ultrasound examinations of the elbows to support Mr Reid’s diagnosis of ongoing medial and lateral epicondylitis of both elbows as a result of work-related duties. He saw no reason to change his earlier conclusion.
Under cross-examination Dr Fraser agreed that there was no feigning of symptoms by Ms Doan when he examined her. He also agreed that he has not examined her since June 2010, significantly before compensation payments ceased in January 2013.
Mr G Grossbard, orthopaedic surgeon, stated in a report dated 10 February 2011 that he examined Ms Doan on 8 February 2011 and took a history of left elbow pain since 2009 that developed into pain in both elbows. On the right elbow he found a full range of movement but tenderness both laterally at the common extensor origin and medially at the common flexor origin. On the left elbow he found a full range of movement with medial epicondyle tenderness only. Mr Grossbard concluded that Ms Doan has evidence of bilateral medial epicondylitis that is work-related, with nothing to suggest abnormal or pain-related behaviour during the examination. He disagreed with Dr Fraser’s suggestion of non-organic factors.
Dr A James, occupational physician, stated in a report prepared after examining Ms Doan on 17 May 2010 and carrying out a workplace assessment on 25 May 2010 that she observed mild tenderness over the left and right medial epicondyles. Provocative tests for medial and lateral epicondylitis showed mild discomfort in the right medial epicondyle. Dr James concluded that psychosocial factors (such as workplace grievances and personal issues) were significant contributors to Ms Doan’s level of disability.
Expert witnesses giving evidence to the Tribunal agreed in broad terms that there is no definitive test or study (such as a blood test) for epicondylitis. They told the Tribunal that in such matters a diagnosis is based on a clinical examination which involves taking a history from the patient and conducting a physical examination. Key elements of the clinical examination include reports of pain and tenderness and responses to provocative testing.
The Tribunal finds that Ms Doan presented as a credible witness. Despite some difficulties that arose as a result of relying on her husband for assistance in translating and interpreting during medical examinations and with the preparation of documentation because of her limited command of English, her description of symptoms over several years has remained largely consistent. No doctors accused her of feigning injury.
The Tribunal places considerable weight on Dr Sutcliffe’s evidence and her diagnosis of ongoing medial and lateral epicondylitis of both elbows. She is experienced in conducting clinical examinations where radiological examination is of limited value. She examined Ms Doan several times since 2010 and took a detailed history of the duties performed by Ms Doan. As Ms Doan’s former treating doctor she is familiar with Ms Doan’s presentation and symptoms. Her reports are considered and thorough.
The Tribunal also places considerable weight on Mr Reid’s evidence and his diagnosis of medial and lateral epicondylitis of both elbows after examining Ms Doan in 2010 and 2013. His reports show that he took a detailed history of the duties performed by Ms Doan and on both occasions carried out a thorough clinical examination.
These conclusions were supported by Mr Melamed. Dr Andrianakis, as Ms Doan’s general practitioner since 2011, reported consistent symptoms of bilateral elbow pain both before and after the decision to cease compensation payments in 2013. Mr Grossbard diagnosed bilateral medial epicondylitis in 2011 and found nothing to suggest abnormal pain-related behaviour during his examination. The Tribunal notes that Mr Grossbard was not called by the respondent to give evidence and was not asked to provide an updated assessment.
The Tribunal places less weight on Mr Haig’s evidence. He said that he relied to a large degree on Ms Doan’s husband to interpret for her during the examination, but admitted that he did not seek to elicit any specific details of her duties with the respondent, instead adopting the brief description provided by the respondent in its instructions. This contained information that was clearly vague or inaccurate, yet he did not seek to clarify the material. Further he conceded that he did not use Ms Doan’s husband to interpret during the physical examination, and instead of eliciting Ms Doan’s verbal responses he focused on her face, watching for any wince, grimace or change in facial expression to identify any reaction involving pain or tenderness. This approach to clinical examination was not adopted by any other practitioner and seems to place undue emphasis on facial expression rather than a combination of facial and verbal reactions. In addition it does not take into account any cultural issues that might have been relevant in Ms Doan’s case. Mr Haig did not provide an adequate explanation for his assertion that non-organic factors were the major contributors to Ms Doan’s condition.
Similarly the Tribunal places little weight on Dr Fraser’s evidence. He has not seen Ms Doan since June 2010, so he cannot assist the Tribunal with an assessment of her elbow condition at or after 4 January 2013.
The Tribunal accepts the evidence from Dr Sutcliffe, Mr Reid, Dr Andrianakis, Mr Melamed and Mr Grossbard and finds that as at 4 January 2013 and to date Ms Doan suffers from medial and lateral epicondylitis in both elbows.
DOES THE RESPONDENT HAVE PRESENT LIABILITY FOR COMPENSATION FOR INCAPACITY AND MEDICAL TREATMENT FOR RIGHT SHOULDER INJURY?
Ms Doan stated that in April 2010 she started developing pain in her right shoulder, particularly when she was placing mail in ULDs. A rehabilitation return to work program was implemented and Ms Doan worked her normal hours but restricted duties. She said that on 4 May 2010 she lodged a claim for compensation which was refused by the respondent, but after she sought review by the Tribunal the matter was resolved by consent on 21 June 2011. The respondent accepted liability for right shoulder bursitis with the date of injury agreed to be 1 May 2010.
Dr Sutcliffe stated in her report dated 20 October 2010 that Ms Doan suffered from muscular injury of the right shoulder and possible rotator cuff tear. Dr Sutcliffe re-examined Ms Doan on 19 December 2012 and found that the symptoms persisted and were consistent with the earlier diagnosis, which she described as right shoulder subscapularus tendonitis or right shoulder rotator cuff tendonitis.
Mr Reid noted in his report of 13 September 2010 that Ms Doan developed pain in her right shoulder region when she stretched out her arm when placing items in the ULD, and that this pain has persisted. On examination he found tenderness in the muscle bellies of the lower part of the deltoid and the upper part of the pectoralis major muscle bellies, and pain in these areas on elevation and extension of the right shoulder. Mr Reid diagnosed a muscular injury of the right shoulder region involving the muscles at the anterior of the shoulder (deltoid and pectoral muscles) caused by repeated movements.
In his report dated 8 August 2013 Mr Reid said that an ultrasound of the right shoulder on 8 March 2013 showed a mild subscapularis tendonopathy and was otherwise normal. He concluded that Ms Doan has an injury of the right shoulder girdle muscles, affecting the upper fibres of the pectoralis major and the interior fibres of the deltoid muscle. She also has bicipital tendonitis of the right shoulder. In oral evidence Dr Reid emphasised that tenderness is the most important test in clinical examination for this type of injury and that Ms Doan had displayed objective signs of tenderness on examination.
Mr Melamed stated in his report that Ms Doan presented with right shoulder pain that he described as protective chronic shoulder girdle tightness and weakness resulting from the tennis elbow and golfer’s elbow.
Dr P Andrianakis stated in his report that Ms Doan was suffering from soft tissue inflammation in her right shoulder, which in March 2013 she described as becoming worse. He said that an ultrasound of the right shoulder on 3 March 2013 showed subscapularis tendinopathy, indicating the inflammatory nature of the shoulder pain.
Mr Haig stated in his first report that Ms Doan gave a history of right shoulder pain that commenced a few months after the onset of her left elbow pain. On examination he found a normal contour and there was no tenderness. Flexion and abduction were a little reduced…but I did question her compliance. Other movements were normal. He concluded that Ms Doan complained of…what appears to be very mild pain in her right shoulder with to and fro movements of the shoulder. I do not have a diagnosis for this. I suspect there is none. He considered Ms Doan to be fit for pre-injury duties without any restrictions.
In a supplementary report dated 5 November 2012 Mr Haig stated that based on Ms Doan’s presentation on 25 September 2012 he found no tenderness and did not have a diagnosis for the right shoulder complaint and did not believe that the condition met the definition of injury in the SRC Act because there was no connection with her work. He excluded a diagnosis of capsulitis of the right shoulder.
Dr Fraser stated in his report dated 25 June 2010 that Ms Doan complained of right shoulder pain but he found nothing to suggest that she was suffering from any specific right shoulder condition of a physical nature. He suggested that the right shoulder symptoms were of a non-organic and psychological nature. In his report dated 22 January 2014 Dr Fraser stated that there was nothing in recent ultrasound examinations of the right shoulder to support Mr Reid’s diagnosis of muscular injury to the right shoulder girdle and bicipital tendinitis of the right shoulder from work-related activities. He saw no reason to change his earlier conclusion. Under cross-examination Dr Fraser stated that during his examination of Ms Doan in June 2010 he could find no physical basis for any tenderness in the right shoulder, and this formed the basis of his conclusion about the relevance of illness belief or non-organic factors.
Mr Grossbard stated in his report that Ms Doan has developed capsulitis of the right shoulder, where the lining of the shoulder becomes inflamed. He suggested that a relatively normal ultrasound result was consistent with this diagnosis and the condition was secondary to the elbow pain and injury. Mr Grossbard also said that the shoulder injury was consistent with the history given and was supported by the clinical findings.
Dr James noted in her report that examination of Ms Doan’s shoulders revealed mild tenderness over the right shoulder anteriorly. There was a full range of movement.
The Tribunal accepts that Ms Doan has been consistent in her description of right shoulder pain since 2010. For reasons similar to those in respect of Ms Doan’s elbow injuries, the Tribunal prefers the evidence from Dr Sutcliffe and Mr Reid, supported by the evidence from Mr Melamed, Dr Andrianakis and Mr Grossbard, to that of Mr Haig and Dr Fraser and finds that as at 4 January 2013 and to date Ms Doan suffers from a right shoulder injury that may be described as right shoulder tendonitis.
DOES THE RESPONDENT HAVE LIABILITY FOR MEDICAL COSTS ASSOCIATED WITH THE PROVISION OF AUTOLOGOUS BLOOD INJECTIONS?
Ms Doan stated that in about August 2012 she became aware that a colleague had undertaken autologous blood injections which had helped in the treatment and management of pain. She said that she mentioned this to Dr Andrianakis as a means of assisting in the treatment of her elbow pain. Dr Andrianakis wrote to the respondent asking for the cost of the treatment to be met, but this was refused. She said that despite the refusal she decided to proceed and had the first injection in her left elbow on 7 October 2013. She stated that there were problems with the injection and there was no reduction of her elbow pain. She said that she consulted another doctor and received the second injection in her left elbow on 5 December 2013. Ms Doan stated that she has been advised to wait for several weeks before having a third injection, and if there is any reduction in her pain she intends to have the injection into her right elbow.
Dr Sutcliffe stated in her report dated 28 January 2014 that since her previous examination Ms Doan had been treated by autologous blood injections on the right and left elbows and initially on the left, and had reported some improvement in her symptoms in the left elbow. Ms Doan had indicated that she intended to follow the recommendation that she have three injections on each arm. Dr Sutcliffe stated that because of the minor benefit reported with the injection on the left elbow it would be appropriate that Ms Doan have additional injections to determine whether there is further improvement. She added that she believed that the proposed further injections are reasonable and appropriate, particularly taking into account that there has been some modest improvement after the first injection.
In oral evidence Dr Sutcliffe stated that opinions vary but in her view autologous blood injections represent a recognised medical practice which for some patients assists in the healing process, and in appropriate cases may be considered an alternative to cortisone injections. She said that she has not administered or witnessed the injections, but suggested that if there was no improvement after a number of weeks, further injections should be considered after about three months.
In his report dated 8 August 2013 Mr Reid noted that Ms Doan had been offered cortisone injections but had preferred autologous blood injections in the epicondular region. He said that opinions differ as to the effectiveness of the autologous blood injections: some patients respond positively and others do not. Dr Reid said that the treatment is used less frequently than cortisone injections and is often unsuccessful. In oral evidence Mr Reid said that he was aware of literature suggesting that the treatment is effective in some circumstances.
Dr C Andrianakis stated in his report that Ms Doan had discussed with her physiotherapist the possibility of undergoing autologous blood injections in her elbows. He said that he had written to the respondent on 31 August 2012 asking that autologous blood injections be funded by the respondent but the respondent had refused on the advice of an independent medical examiner who had described the injections as still experimental despite strong evidence in the literature of their effectiveness. Dr Andrianakis said that the independent medical examiner by his own admission is not quite sure about the autologous blood injections, which might have helped Ms Doan enormously.
In oral evidence Dr Andrianakis stated that he did not know a lot about autologous blood injections but he viewed them as one of a variety of reasonable treatments that have been used by sportspeople and others with muscular injuries.
Mr Haig stated in his first report: I believe autologous blood injections are quite experimental in nature and furthermore I do not consider her claimed symptoms are severe enough to warrant any intervention treatment. In oral evidence Mr Haig stated that he was not aware of any controlled trials or evidence of any benefit that has been achieved using this treatment. He observed that any success may be attributed to a placebo effect where an improvement may have no medical explanation other than undertaking the treatment itself. Under cross-examination Mr Haig agreed that some reputable licensed medical practitioners offer the treatment.
The Tribunal acknowledges that there are varying opinions about the efficacy of autologous blood injections as a specific treatment option for conditions such as epicondylitis. Dr Sutcliffe, Mr Reid and Dr Andrianakis gave evidence that this a recognised treatment among a range of treatment options that is recommended and performed by licensed and registered medical practitioners. There is no material to support the assertion by Mr Haig that the treatment is experimental.
In Ms Doan’s case the first two injections have not been as effective as she had hoped. However Dr Andrianakis and Dr Sutcliffe, who are familiar with her condition as her treating doctors, have recommended further injections as a valid and appropriate form of treatment. For these reasons the Tribunal finds that autologous blood injections represent a reasonable medical treatment that meets the criteria in s 16 of the SRC Act for the payment of compensation in respect of medical expenses.
DECISION
The Tribunal sets aside the decisions under review in Applications 2013/1102, 2013/1104 and 2013/1373 and substitutes the following decision:
1.(a) From 4 January 2013 to the present date and at the present date Ms Doan continued to suffer incapacity at her normal level as a result of injury to the chronic lateral and medial epicondylitis of the right and left elbow/arm and right shoulder tendonitis which give rise to entitlement to compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).
(b)From 4 January 2013 to the present date and at the present date Ms Doan is entitled to compensation pursuant to s 16 of the SRC Act.
(c)Ms Doan is particularly entitled to compensation pursuant to s 16 of the SRC Act for the costs of autologous blood injections for the treatment of epicondylitis proposed by Dr Andrianakis in his letter of 31 August 2012.
(d)From 4 January 2013 to the present date and at the present date Ms Doan is entitled to compensation in respect of incapacity for work pursuant to s 19 of the SRC Act in respect of all periods when her actual earning were less than the normal weekly earnings.
2.The respondent shall pay Ms Doan’s reasonable legal costs and disbursements of the proceedings to be agreed, or taxed in default of agreement, in accordance with the latest Practice Direction of the Tribunal.
| I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member. |
........................[sgd]................................................
Associate
Dated 12 February 2014
| Dates of hearing | 3, 4 and 5 February 2014 |
| Counsel for the Applicant | Mr M Carey |
| Solicitors for the Applicant | Slater & Gordon |
| Counsel for the Respondent | Ms C Dowsett |
| Solicitors for the Respondent | Clarke Legal |
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