Blackwell and Comcare (Compensation)
[2017] AATA 1357
•28 August 2017
Blackwell and Comcare (Compensation) [2017] AATA 1357 (28 August 2017)
Division:GENERAL DIVISION
File Number(s): 2015/3123
Re:Kym Blackwell
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member T. Tavoularis
Date:28 August 2017
Place:Brisbane
The decision under review is affirmed.
.......................[sgd]..........................................
Senior Member T. Tavoularis
CATCHWORDS
COMPENSATION – medical treatment – therapeutic treatments – previously accepted injury –where Applicant claimed additional physiotherapy, gym treatment, massage and Pilates – whether treatments were “therapeutic” – whether treatments were reasonable in the circumstances – treatments were not “therapeutic” – treatments not reasonable in the circumstances – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 16
CASES
Alamos and Comcare
[2014] AATA 629
Chowdhary and Comcare[1998] AATA 448
Comcare v Holt [2007] FCA 405
Comcare v Rope (2004) 135 FCR 443
Durham and Comcare[2014] AATA 753
Re Jorgensen and Commonwealth (1990) 23 ALD 321
Popovic and Comcare[2000] AATA 264
SECONDARY MATERIALS
Clinical Framework for the Delivery of Health Services
REASONS FOR DECISION
Senior Member T. Tavoularis
28 August 2017
INTRODUCTION
Ms Kym Blackwell (“the Applicant”) seeks review of a decision made by Comcare (“the Respondent”) to deny liability under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for several treatments she is receiving or seeking to receive to treat various work-related injuries she has suffered.
The Applicant first suffered a work-related injury in February 2002, when she fell whilst walking home from work at a Commonwealth Government agency. The Respondent accepted liabilities for the following of the Applicant’s claimed conditions resulting from that fall:[1]
(a)Unspecified disc disorder;
(b)Left ankle sprain;
(c)Wrist sprain (bilateral);
(d)Left knee and leg sprain;
(e)Open wounds; and
(f)Major depressive disorder, single episode.
[1] Exhibit 3, T Documents, T 11, p 120.
The Applicant successfully returned to work after suffering these injuries. However, she again suffered some work-related injuries in July 2009, while pulling a file from a shelf. The Respondent accepted liabilities for the following of the Applicant’s injuries resulting from this incident:[2]
(a)Wrist sprain (right);
(b)Hand sprain (right);
(c)Disorder of bursae and tendons in the right shoulder region.
[2] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), [6].
The matter presently before the Tribunal does not relate directly to these claims. Rather, it relates to the question of whether the treatment the Applicant now seeks compensation for is compensable by the Respondent in light of the fact it has accepted liability for these injuries. The source of the Applicant’s claims is a Medical Certificate provided to the Respondent by Dr Glenda McDonald, the Applicant’s treating General Practitioner.[3] In this Medical Certificate, Dr McDonald named the following treatments the Applicant was receiving in relation to her injuries:[4]
[3] Exhibit 3, T Documents, T 8, p 108.
[4] Ibid.
Medical Treatment
Frequency
Reason
End/Review Date
Psychiatric Clinic
Directed by Dr Likely
Severe chronic refractory major depressive disorder, chronic pain and insomnia, paraethesia, and associated injuries
Ongoing indefinitely
Psychiatrist, Psychologist and Medical Practitioner
Weekly, fortnightly & urgent
Medical Treatment, Medication, Psychiatric and Psychological Treatment
Ongoing indefinitely
Physiotherapist, Pilates Gym and Massage
Weekly, fortnightly & urgent
Ongoing rehabilitation treatment for injuries
Ongoing indefinitely
Neurosurgeon, Neurologist, Orthopaedic Surgeon
Ongoing
Ongoing management and treatment of injuries
Ongoing indefinitely
Diagnostic Radiology
Ongoing
Ongoing management and treatment of injuries
Ongoing indefinitely
The Applicant’s physiotherapist, Mr Paul Parker, provided additional information on the same date. This information included recommending the Applicant undertake physiotherapy, Pilates and gym, with estimated dates of achievement of “never”.[5] Mr Parker listed the Applicant’s “standardised outcome measures” as follows:[6]
Ongoing maintenance to assist patient with further limitations
Post injury is not achievable due to injuries being permanent
Severe Chronic pain
[5] Ibid, T 7, p 107.
[6] Ibid, p 106.
In a determination dated 11 February 2015, the Respondent accepted liability for:
·Relevant reviews with your treating doctor and treating specialists (ie (sic) psychiatrist, neurosurgeon, neurologist and orthopaedic surgeon)
·Physiotherapy, Pilates, gym & massage not exceeding once a week. (Note Dr McDonald indicated the frequency is for weekly, fortnightly & urgent. In this regard, for any urgent sessions beyond once a week, you must request your doctor to provide clinical reason when such urgency arises. Please note also that I will request an updates report and would include questions in relation to this matter)[7]
[7] Ibid, T 9, p 110.
The Respondent also requested a copy of the referral to any diagnostic radiology “so that formal determination in respect of liability can be considered as this need arises.”[8]
[8] Ibid.
Dissatisfied with this result, the Applicant sought review of this decision in a reconsideration request dated 11 March 2015.[9]
[9] Ibid, T 10, pp 117-118.
THE ISSUES
As the Respondent has accepted liability for the Applicant’s injuries resulting from her 2002 and 2009 work-related incidents, I need not address whether those injuries constitute injuries for the purposes of the Act, or if they were work-related. Rather, the relevant question for me relates to the level and nature of treatment the Applicant has been receiving for these injuries, and the Respondent’s liability for them.
Specifically, the questions for the Tribunal in these proceedings are whether:
(a)an increase from one to one and a half hours per week of physiotherapy; and
(b)one hour per week each of Pilates, gym, and massage services;
constitute reasonable treatment under s 16 of the Act, in light of the Applicant’s circumstances.
THE LEGISLATIVE FRAMEWORK
Section 16(1) of the Act provides:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 4 of the Act, in turn, defines “medical treatment” as:
…
(e)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
…
(d)therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
…
(i)any other form of treatment that is prescribed for the purposes of this definition.
“Therapeutic treatment”, meanwhile, “includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury”.
While classifying a course of treatment as “medical treatment” might seem straightforward, the question of whether the treatment was “reasonable for the employee to obtain in the circumstances” is rather more complicated.
It is apparent that s 16 of the Act imposes a test that has both subjective and objective elements: one must determine whether the treatment is objectively reasonable given the subjective circumstances of an applicant’s injury. I hasten to add that the subjective element only applies to the state of the injury itself, not to, for instance, the state of the applicant’s personal life.[10]
[10] Re Jorgensen and Commonwealth (1990) 23 ALD 321, 325 (Gray J).
In determining the objective reasonableness of a treatment or course of treatment, the Tribunal is often tasked with, essentially, balancing the long-term benefit of the treatment against its cost.[11] Due to the very nature of the test, the list of factors the Tribunal may take into account in making this assessment varies.
[11] Comcare v Rope (2004) 135 FCR 443, 448 (Stone J).
Mansfield J in Comcare v Holt gave examples of some circumstances where the treatment would be unreasonable, which included:[12]
·“where treatment is unreasonable because its anticipated therapeutic benefit does not justify the expense involved in the circumstances”;
·“where the cost of the proposed treatment, even if no other treatment options were available, would lead to the view that the proposed treatment is unreasonable having regard to its anticipated benefit”
·where “there is some alternative treatment available with potentially similar benefits at a lesser cost”;
·“where proposed treatment, although of therapeutic benefit, is unreasonable having regard to the extent of the anticipated benefit of the cost involved, even if no similar treatment had previously been undertaken”; and
·“where treatment like the proposed treatment which in the past has had some therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of past experience”.
[12] Comcare v Holt [2007] FCA 405, [25]-[26].
I also consider that “in the circumstances”, though indicative of a subjective test, does not connote that a decision-maker should assess what is reasonable treatment as being fixed in time. The point of this test being subjective is that decision-makers should take into account changes in the circumstances surrounding the injury – particularly if the treatment is effective. What was initially reasonable treatment may become unreasonable long-term treatment. This long-term perspective is particularly important when one considers the potential long-term dependency of applicants upon treatments that were only ever meant to be temporary, as the Tribunal noted in Popovic and Comcare.[13]
[13] [2000] AATA 264, [28]-[29].
This notion of shifting reasonableness is supported by the Tribunal’s decision in Chowdhary and Comcare,[14] where it found that:
“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”.[15]
[14] [1998] AATA 448.
[15] Chowdhary and Comcare [1998] AATA 448, [53].
In making these assessments, it is often of great assistance to the Tribunal to make reference to the Clinical Framework for the Delivery of Health Services (“the Clinical Framework”).[16] Although this document was neither compiled by the Commonwealth Government, nor representative of Commonwealth policy, it provides useful guiding principles for the delivery of health services. I note that the Respondent referenced this in its Statement of Facts, Issues and Contentions (“SFIC”).[17]
[16] See e.g. Alamos and Comcare [2014] AATA 629, [32]-[33]; and Durham and Comcare [2014] AATA 753 (SM Ettinger), [56]-[58].
[17] Exhibit 2, Respondent’s SFIC, [66]-[67].
The Clinical Framework lists the guiding principles as:
·Measure and demonstrate the effectiveness of treatment
·Adopt a biopsychosocial approach
·Empower the injured person to manage their injury
·Implement goals focused on optimising function, participation and return to work
·Base treatments on the best available research evidence.
Particularly relevant in considerations such as this is the third dot point above, “Empower the injured person to manage their injury”. The Clinical Framework later elaborates on this point:
The key measure of treatment effectiveness is the ability of the injured person to manage their condition as independently as possible and participate in activities at home, in the community and at work. Independence does not mean being symptom-free, but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependency on treatment, which reinforces illness behaviour and can lead to persistent pain or long-term disability.
To summarise the above, in order for the requirements of s 16(1) of the Act to be satisfied, the treatments the Applicant claims compensation for must constitute “medical treatment” as it is defined in s 4. She then must show that this treatment is objectively reasonable in the subjective circumstances of her injury. While of course the Tribunal must look to all the various effects of these courses of treatment on the Applicant’s injury, it is particularly important for the Tribunal to look to the long-term benefits of this treatment, and weigh them against not only their cost.
I will now turn to assessing whether the Respondent is liable to compensate the Applicant for the various treatments she now claims.
IS THE RESPONDENT LIABLE TO COMPENSATE THE APPLICANT FOR HER TREATMENT?
The Applicant is claiming compensation for the following treatments:
(a)An extra half-hour of physiotherapy per session;
(b)Pilates;
(c)Gym Program; and
(d)Massage.
I will deal with each of these treatments in turn.
Extra Physiotherapy
In consideration of the above medical evidence, I can only conclude that there is some merit in the Applicant’s continuing treatment by way of physiotherapy. By all accounts, the Applicant needs to continue building strength and stamina to successfully treat her injuries. I therefore consider that some physiotherapy can be considered a medical treatment that is reasonable in the circumstances.
The question the Respondent puts before me, however, does not relate simply to it being liable to compensate the Applicant for some physiotherapy. Rather, it deals with an increase in the physiotherapy from one hour per week to one and a half hours per week.[18]
[18] Exhibit 2, Respondent’s SFIC, [69].
While the medical evidence is broadly supportive of the Applicant undertaking physiotherapy (or something like physiotherapy, at any rate), there is only one voice in favour of her increasing the length of her sessions: Mr Paul Parker, her physiotherapist.[19] Mr Parker stated:
Kym has received symptomatic treatment at SportsMed NQ Physio for chronic neck and shoulder pain as well as thoracic. We are limited to one session per week and as you can appreciate, due to the complex case and multi levels, only one area per session can be attributed, therefore making treatment quite ineffective to work on these problem areas.[20]
[19] Report dated 30 July 2015, quoted in Exhibit 2, Respondent’s SFIC, [54].
[20] Ibid.
Although this may be the case, it should be contrasted with the fact the Applicant’s average appointment length with her physiotherapist was 30 minutes and her consultations did not last longer than one hour.[21] Perhaps more telling is the fact that Mr Parker considered that “Physical Goals are unachievable ongoing maintenance is required.”[22]
[21] Exhibit 2, Respondent’s SFIC, [69.2].
[22] Exhibit 3, T Documents, T 7, p 107.
The benefit the Tribunal must therefore weigh against potential cost and long-term implications of the Applicant’s treatment is not that of her condition improving. Rather, it is the potential benefit of improved maintenance of the Applicant’s conditions. Owing to the dearth of evidence of the benefits of an additional 30 minutes of physiotherapy per week, I am loath to consider this marginal benefit to be particularly significant.
In contrast, it is not only the cost of an additional 30 minutes of physiotherapy per week that weighs on the side of the treatment being unreasonable. I consider that an increase in the amount of physiotherapy the Applicant undergoes will not empower her to manage her injury, either. Rather, I see there is a risk that the Applicant will become even more dependent on the physiotherapy. At the very least, it will not move her towards self-management or help her to take a greater role in self-management.
Consequently, I do not consider that the additional 30 minutes of physiotherapy per week would be “reasonable for the employee to obtain in the circumstances”. It follows that the Respondent should not be liable under s 16 of the Act to compensate the Applicant for this extra physiotherapy.
Pilates
The Applicant has attended approximately 46 group Pilates sessions since 2007.[23] The medical evidence does not confirm that Pilates has resulted in any improvement in her symptomatology. In his report of 27 May 2016, Dr Maguire[24] notes that, as part of a rehabilitation program “…she undertakes Pilates and gym strengthening.” He further noted her condition had “declined” as a result of the cessation of the rehabilitation program. Dr Maguire did not think any further follow up consultations were required.
[23] Exhibit 2, Respondent’s SFIC, [70.1].
[24] Exhibit 4, Supplementary T Documents, ST 18, p 244.
It is clear Dr Maguire did not think the Applicant’s physical symptoms were her major problem. Rather, he thought “The main concern for her is not her physical status, but her mental status.”[25]
[25] Ibid.
I therefore agree with the contention of the Respondent: there is insufficient evidence to demonstrate the effectiveness and therapeutic benefit of Pilates for the improvement of the Applicant’s condition.
The question for the Tribunal is whether continued participation in Pilates will have the potential benefit of improved maintenance of the Applicant’s conditions. Despite the abovementioned comments of Dr Maguire, I am cautious about any finding that Pilates will result in any particularly significant marginal benefit. I am more comfortable with a finding that the Applicant’s primary issues are psychologically-derived and not physical.
Although not qualified to offer an opinion about the Applicant’s treatment needs for her physical conditions, the psychiatrist, Dr Michael Likely, told the hearing that a cessation of her physical treatments would result in a decompensation in the Applicant’s mental health with exacerbation of her symptoms of depression. Dr Likely said that even uncertainty regarding provision of such ongoing treatments could elevate the Applicant’s depression. His opinion seems quite consistent with that of Dr Maguire.
The provision of ongoing Pilates therapy (a physical treatment) for the primary purpose of ameliorating an applicant’s mental health symptoms would not, in my view, be “reasonable for the [Applicant] to obtain in the circumstances”. The Respondent should not be liable under s 16 of the Act to compensate the Applicant for extra Pilates therapy.
Gym Program
For the Applicant’s participation in a gym program to constitute “medical treatment”, it must constitute therapeutic treatment and have been either at the direction of a “legally qualified medical practitioner” or by or under the supervision of a registered physiotherapist, osteopath, masseur or chiropractor.[26]
[26] The Act, s 4.
Dr McDonald has directed that the Applicant should be “provided Gym access to allow her exercises,etc (sic) under her Physiotherapist (sic) supervision”.[27] Although I am satisfied that this meets the threshold for a direction be a legally qualified medical practitioner, the direction was qualified: the Applicant had to undertake the gym program whilst under the supervision of her physiotherapist. It is less clear on the evidence, however, whether supervised gym access is sufficient to meet the threshold to be a therapeutic treatment.
[27] Exhibit 3, T Documents, T 1.5.11, p 83.
Section 4 of the Act defines “therapeutic treatment” to include “an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury”. It is clear that gym attendance cannot constitute an examination, test or analysis. If the gym program is to be a therapeutic treatment, then, it has to be treatment given for the purpose of alleviating an injury.
As I understand the medical evidence, the Applicant’s injuries are permanent and will never get better. The way in which the current treatment is purported to alleviate her injury, then, is by limiting her symptoms and preventing degeneration. I have serious doubts that a gym program, particularly if it is unsupervised, will achieve this.
Even if I were to find that the gym program meets the requirements to be medical treatment under s 4 of the Act, I have even graver doubts that the gym program should be considered reasonable treatment in the circumstances of the Applicant’s injury.
Although, of course, I recognise that they are different kinds of treatments, I consider that physiotherapy and a physiotherapist-supervised gym program share a raft of common features. Indeed, the supervised gym program seems like it would be a form of treatment that is intended to supplement the Applicant’s physiotherapy. There are several reasons, then, why it should not be considered reasonable:
(a)If additional physiotherapy is not reasonable treatment, logically, another form of treatment that is intended to supplement the existing physiotherapy should not be reasonable treatment, either. The hands-on nature of physiotherapy means that, to my mind, it would have greater value as a treatment. Thus, if it is not reasonable for the Applicant to be compensated for more physiotherapy, nor should it be reasonable for her to be compensated for a physiotherapist-supervised gym program.
(b)Even if that were not the case, a physiotherapist-supervised gym program is not, alone, a reasonable course of treatment for the Applicant. The Applicant has to date only undertaken “unsupervised gym access” appointments with her physiotherapist.[28] There is no evidence that this gym program has had any tangible benefit in terms of alleviating her injury. While I recognise that there is a difference between unsupervised and supervised gym access, and indeed that the latter is more potentially beneficial to the Applicant, I do not consider that is sufficient to make the supervised gym program reasonable, in and of itself. Rather, any slim benefit that may be gained is outweighed by the monetary costs of the treatment and the risk the Applicant will become dependent upon them. Consequently, I do not find this course of treatment reasonable.
(c)Nor can it be said that the treatment is reasonable because of the potential psychiatric harm the Applicant alleges the cessation of treatment would cause to her. As noted above, the injury for which the Applicant seeks compensation is a physical one, not a psychiatric one. Particularly as the injury this treatment is aimed at is fully physical – the Applicant does not suffer from any somatization disorder – it would not be reasonable to compensate her for a physical treatment which only has a psychiatric benefit. If anything, this information points towards the Applicant being more dependent upon the treatment, which again weighs against it being reasonable.
[28] Exhibit 2, Respondent’s SFIC, [71.2].
In consideration of each of the above reasons why the physiotherapist-supervised gym treatment is not a reasonable treatment, I cannot find that it is a reasonable course of treatment for the purposes of s 16 of the Act.
Massage
In Comcare v Holt, Mansfield J indicated that a treatment might be unreasonable:
where [the] proposed treatment, although of therapeutic benefit, is unreasonable having regard to the extent of the anticipated benefit of the cost involved, even if no similar treatment had previously been undertaken.[29]
[29] Comcare v Holt [2007] FCA 405, [26].
In the present case, although the only evidence of the Applicant receiving massage treatment dates back to eight sessions in 2008; there is no evidence she has either sought or claimed massage therapy since.[30]
[30] Exhibit 2, Respondent’s SFIC, [72.1].
The only statement by a doctor mentioning massage therapy is a report by Dr John Maguire dated 8 August 2013.[31] However, it is more telling about the Applicant’s present state and need for massage therapy that after performing an arthroscopy on the Applicant’s shoulder in February 2014, Dr Maguire only mentioned her need to “undergo a gentle physio program”.[32] I therefore prefer Dr Maguire’s latter report to his former, particularly as it is supported by the other medical reports, which fail to mention any need of the Applicant to undergo massage therapy.
[31] Exhibit 3, T Documents, T 1.5.5, p 39.
[32] Ibid, T 1.5.6, p 46.
On the available evidence, I can only conclude that there would be little, if any benefit in the Applicant undertaking massage therapy. Having regard to the cost involved in this, and to the potential for the Applicant to become dependent upon this additional form of therapy, I do not consider that massage treatment constitutes a reasonable course of treatment for the Applicant.
Summary of Findings About the Medical Evidence
My findings as to the totality of the medical evidence are predicated on two things. First, the abovementioned requirement to meet the elements of s 16 of the Act. Secondly, the requirement for all of the claimed treatments to meet the requirements of the relevant Clinical Framework.
First, with initial reference to s 16 of the Act, I have misgivings about, and difficulty in, supporting any finding that ongoing provision of the claimed treatments is suitable or necessary to alleviate the symptoms of her workplace injury[33] that occurred over fifteen years ago, in 2002. Viewed holistically, the totality of her medical evidence seems to be:
(a)There is no prospect of ongoing treatments in the form of extra physiotherapy, Pilates, gym sessions and massage ever achieving any curative outcome or similar effect;
(b)That ongoing provision of any of these treatments would be more for the purpose of her dealing with a perceived psychological calamity or crisis at the thought of cessation of such treatments, as opposed to any measurable physical benefit; and
(c)There has been an inadequate focus on the implementation of an overall health management plan as an alternate means of improving her condition;
[33] In fact, it was a deemed workplace injury because the Applicant sustained her injuries as the result of a fall while walking home from work. I note that the Applicant suffered a second workplace injury in 2009, too.
Secondly, with reference to the Clinical Framework, none of the Applicant’s medical practitioners positively apply the principles of the Clinical Framework when seeking to justify the continued provision of the claimed treatments. Their evidence – predominantly – is that provision of the ongoing claimed treatments will most likely be remedial, not curative. None of her medical practitioners apply the guiding principles in the Clinical Framework to arrive at any alternate means of symptomatic management other than ongoing and seemingly infinite treatments in the form of physiotherapy, Pilates, gym programs and massage. In my view, this is not the basis on which a decision-maker in my position must determine this matter.
On a best case scenario for the Applicant, the net sum gain from this application would be: (1) an increase from 1 hour to 1.5 hours a week of physiotherapy; and (2) 1 hour a week each of Pilates, gym and massage services.[34] The Respondent contends that compensation for (1) any increase in weekly physiotherapy; and (2) 1 hour per week each of Pilates, gym and massage services, should be denied to this Applicant. The further contention of the Respondent is that the Clinical Framework, although not official government policy, is an appropriate reference for the measurement of the objective reasonableness of medical treatment. I agree with both of the Respondent’s contentions.
[34] This is in addition to the accepted 1 hour a week of physiotherapy.
The Respondent’s contentions can, to my mind, be distilled into one sentence (with which I also agree):
The Respondent contends that an increase in physiotherapy and ongoing Pilates, massage and gym is unlikely to cure or significantly reduce the effects of the Applicant’s compensable condition, and it does not empower the Applicant to take a greater role in self-management.[35]
[35] See Exhibit 2, Respondent’s SFIC, [68].
The Law Applied to this Case
As I have sought to outline by reference to certain authorities earlier in these reasons, the apparent trend of those authorities is that in determining whether or not compensation for a given treatment(s) will continue, a decision-maker must be sufficiently convinced that such treatment(s) effectively and demonstrably cure or alleviate an injury. To my mind, recourse must be had to these authorities in determining when “enough is enough” – in terms of the Commonwealth’s obligation to compensate an applicant for claimed treatments.
In Alamos and Comcare [2014] AATA 629, the applicant suffered a ligamentous back train in 2000 in respect of which she received compensation for more than 300 physiotherapy treatments from 2006 to 2014. Deputy President Constance said:
In considering this requirement, it is necessary to consider all of the circumstances, and not only the beneficial effects experiences by Mrs Alamos. Without intending the list to be exhaustive, some of the factors which may be relevant considerations in the circumstances are:
·the benefit of the treatment to the injured worker;
·the long-term effects of the treatment;
·whether the treatment is likely to cure the injury or significantly reduce its effects;
·whether the treatment maintains the status quo;
·the cost of ongoing treatment.
There is significant evidence that provision of long-term physiotherapy is not in the best interest of Mrs Alamos.[36]
[36] Alamos and Comcare [2014] AATA 629, [24] (DP Constance).
Deputy President Constance also placed significant weight (as I do) on the Clinical Framework, referenced by the Respondent. He noted that:
One of the stated principles of that framework is to “empower the injured person to manage their injury.” It says in part:The key measure of treatment effectiveness is the ability of the injured person to manage their condition as independently as possible and participate in activities at home, in the community and at work. Independence does not mean being symptom-free, but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependency on treatment, which reinforces illness behaviour and can lead to persistent pain or long-term disability.
(References omitted)
In applying the principles enunciated in Holt, I am of the view that ongoing provision of the claimed treatments to the Applicant is unreasonable because the anticipated therapeutic benefit does not justify the expense involved in the circumstances. Even where such treatments may, in the past, have had therapeutic benefit, I am of the view that ongoing provision of those treatments is no longer reasonable because the extent of any therapeutic benefit no longer justifies the cost in light of the past experience.[37]
[37] Holt v Comcare (2007) 94 ALD 576.
In Jorgensen and Commonwealth of Australia (1990) 23 ALD 321 at 325, the Tribunal noted that:
“the idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury and not to the details of the personal life of an applicant for compensation…”
(My emphasis)
There is a paucity of convincing evidence about any genuine therapeutic and convenient or alleviative outcome for the Applicant, were the Respondent compelled to continue funding these treatments. The Applicant purports to justify ongoing provision of these treatments based primarily upon what has happened in the past:[38]
…The Respondent has on multiple occasions made incorrect statements regarding the Applicant and her complicated surgical history of injuries and treatment needs. If their statements are true, and they do not have much correspondence from The Applicant’s treaters, then I suggest they obtain a copy of ALL paperwork regarding the Applicant from 2002 onwards retained by AGS. I spent many hours photocopying them all earlier this year. There is a large , considerable pile of correspondence, Specialist letters, Clinic visits, Rehabilitation communication, etc, etc. I am surprised The Respondent cannot see the need and benefit to continue the Applicant’s current therapies to keep her in the best possible “shape” that we can, considering all her over 9 notated injuries were ALL work-created injuries.
[38] Exhibit 1, Applicant’s SFIC, [124].
Simply because these and/or other treatments have a historical (i.e. 15 years old) connection with the Applicant does not (and cannot), in and of itself, compel the Tribunal towards a finding that it is reasonable for any or all of the claimed treatments to be made available to her on an ongoing basis. For this reason, I do not propose to attach much, if any, weight to historically-expressed medical opinion before 2015. During the period 2010-2014,[39] the main protagonist for ongoing remedial treatment is the orthopaedic surgeon, Dr Maguire. He makes similar pronouncements in January and May 2016.[40]
[39] Ibid, [106], [108]-[110], [112]-[114].
[40] Ibid, [118], [120].
Ultimately, Dr Maguire says that little more can be done for the Applicant in a physical treatment sense – in terms of surgery. He makes a cursory, but not in my view, medically-based, reference “…that she be re-returned to her maintenance therapy”. His primary finding is surely that “The main concern for her is not her physical status, but her mental status. Therefore I defer any decision on this to Dr Michael Likely, her treating psychiatrist.”[41]
[41] Exhibit 4, Supplementary T Documents, S 18, p 244.
As a psychiatrist, Dr Likely is not qualified to offer an opinion about the necessity of a treatment regime for the Applicant’s physical conditions. The essence of the totality of his evidence is that denial of, or reduction in, entitlements to compensation causes the Applicant to de-compensate and become extremely distressed.
I agree with the Respondent’s contention: “Preventing such decompensation by providing physical treatment that is not otherwise reasonable, encourages dependence on unnecessary treatment and is not compensable under s 16 of the SRC Act.”[42]
[42] Exhibit 2, Respondent’s SFIC, [73.3].
The Applicant contended that one additional medical practitioner also apparently endorsed ongoing provision of the claimed treatments.[43] In this regard, reference was made to the report of the neurosurgeon, Dr Eric Guazzo (23 March 2015), who thought “… she continue with symptomatic treatment.” But in this same report, Dr Guazzo also notes “… there are significant multi-level degenerative changes” with associated “stenosis”. In his further report of 16 July 2015, Dr Guazzo, via a contemporaneous MRI scan, confirmed multi-level degenerative changes which he thought were not work-related but the consequence of age-related change.[44] Although noting the Applicant was undergoing symptomatic treatment, he did not make any treatment recommendations.
[43] Exhibit 1, Applicant’s SFIC [117], [123].
[44] Confirmed in a report from Dr Guazzo dated 13 November 2015, Exhibit 4, Supplementary T Documents, ST 1, p 124.
The essential objective behind the provision of a regime of treatment to an applicant must surely be to assist the injured person to, if not cure or almost totally alleviate their condition(s), otherwise live his or her life as independently as possible, both in a private and public capacity. It occurs to me that the Applicant is to a large extent no longer encumbered by her injuries. I make reference to the surveillance evidence contained in the Supplementary T Documents not to unfairly impugn the Applicant’s credit or bona fides in this application, but to indicate my belief that, although she may not be symptom-free, she nevertheless appears to live a functioning and productive life. The provision of seemingly-endless treatments will not assist her to achieve any level of self-management of those symptoms. My concern and reservation in ordering the provision of any further treatment is that the Tribunal, in making such a decision, would be imperilling the long-term prospects of the Applicant by jeopardising her capacity to become independent as a result of her dependence on treatments that have been provided to her thus far.
Having regard to the totality of the evidence, I therefore agree with the contention of the Respondent that the cost of the various claimed treatments outweighs the therapeutic benefit derived by the Applicant of those treatments.
I therefore also agree with the Respondent’s contentions to the effect that for the requirements of s 16 of the Act, the claimed increase from 1 hour to 1.5 hours a week of physiotherapy, and the claimed 1 hour a week each of Pilates, gym and massage services:[45]
(a)Are not treatments “obtained in relation to the injury”; and
(b)Are not treatments that are reasonable for the Applicant to continue to obtain in the circumstances.
[45] In addition to the accepted 1 hour per week of physiotherapy.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis
..........................[sgd]........................................
Associate
Dated: 28 August 2017
Date(s) of hearing: 11-12 January 2017, 17 May 2017 Advocate for the Applicant: Mr Michael Surman Counsel for the Respondent: Mr Ben Dube Advocate for the Respondent: Ms Lindsay Cooper Solicitors for the Respondent: Australian Government Solicitor
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