Cantone and Telstra Corporation Limited (Compensation)
[2015] AATA 534
•22 July 2015
Cantone and Telstra Corporation Limited (Compensation) [2015] AATA 534 (22 July 2015)
Division GENERAL DIVISION File Number
2014/5285
Re
Salvatore Cantone
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 22 July 2015 Place Melbourne The Tribunal affirms the decision under review.
............[sgd]............................................................
Miss E A Shanahan, Member
WORKERS’ COMPENSATION – intracerebral haemorrhage resulting in right hemiparesis – severe speech defect – complete spastic paralysis of the right arm – partial recovery of right lower limbs with spasticity and contractures – remedial massage – liability for cost of travel to relocated masseur denied – whether cost reasonably occurred – availability of alternative therapists within a 25 kilometre radius of the Applicant’s home – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988, sections 14 and 16
Cases
Stevens and Comcare [1995] AATA 310
Paul Peter Corfield and Australian Postal Corporation [2000] AATA 533Mecke and Comcare [2006] AATA 593
REASONS FOR DECISION
Miss E A Shanahan, Member
22 July 2015
Mr Cantone suffered an intracerebral haemorrhage at the level of the left basal ganglia at work on 28 October 2004. This intracerebral haemorrhage resulted in right spastic hemiparesis and severe aphasia. With the passage of time, there has been some improvement in his right lower limb and his speech, although he has developed clawing of his fingers and toes and a contracture in his right ankle.
Mr Cantone, who lives in Wallan, has received reimbursement of travel costs arising from his weekly remedial massage treatment. While this treatment has been approved and administered since 14 July 2006, Mr Cantone commenced travelling in excess of a 50 kilometre round trip to receive the treatment in August 2013. Mr Cantone’s treating remedial masseur, Mr Sam Papaleo had been providing this therapy in Whittlesea but moved his practice to South Morang in late 2013.
On 18 August 2014 a claims manager of Telstra, the Respondent, determined that it was not liable to pay compensation for the travel costs associated with the massage treatment as this treatment was still available in Whittlesea (the determination).
The reasonableness of the massage treatment was not challenged by the Respondent, only the travel costs. Following a request for review, the determination was affirmed by a compensation reconsideration officer. Mr Cantone sought a review by this Tribunal of the decision made by the reconsideration officer.
The sole issue before this Tribunal is the reasonableness of Mr Cantone’s travel to South Morang for remedial massage when such or similar treatment is available closer to his home.
Mr Cantone was represented by Mr Mark Carey of counsel, instructed by Patrick Robinson and Co. Mr John Wallace of counsel appeared for the Respondent, instructed by Sparke Helmore Lawyers.
Mrs Carmen Cantone gave evidence in person and Dr John Griffiths, Mr Sam Papaleo and Dr Peter Stevenson gave their evidence by telephone. Mr Cantone did not attend because of his medical incapacity.
The Tribunal was provided with the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1). Both parties tendered further documentation which are listed in the Appendix to this decision.
BACKGROUND TO THE APPLICATION
Following the intracerebral bleed of 28 October 2004, Mr Cantone was hospitalised at the Royal Melbourne Hospital followed by rehabilitation totalling several months. During the rehabilitation period and for most of 2005 he received Botox injections into his right calf as treatment for the spasticity and developing contractures. This treatment ceased later in 2005 as it was determined that a maximum response had been achieved. Mr Cantone had speech therapy for a period of two years and still has a degree of nominal aphasia. Mrs Cantone is now able to anticipate what he wants to say and she frequently finishes his sentences for him.
The Respondent accepted liability in accordance with s 14 of the Safety,Rehabilitation and Compensation Act 1988 (the SRC Act) for the injury of intracerebral haemorrhage and for Mr Cantone’s treatment, rehabilitation and ongoing support.
Mrs Cantone confirmed that her husband had developed clawed toes and fingers on the right side, his right ankle was stiff and he had a contracture of his Achilles tendon. She described his right thigh as being tight. Mr Cantone also suffered uncontrolled movements of his right leg and arm. If he sneezes or yawns, his right leg uncontrollably kicks out from the hip. He is now able to walk with some assistance from Mrs Cantone or using a stick. The right arm remains totally paralysed, hypertonic, hyper-reflexic and spastic.
Mr Cantone commenced attending a masseur for massage to his right upper and lower limbs in 2006. He attended a Mr Ward in Whittlesea. Initially, Mr and Mrs Cantone paid for this treatment as they had not realised it was covered under the SRC Act. Mr Ward died about six months into this provision of treatment and Mr Cantone transferred to another clinic in Whittlesea where he was treated by Mr Sam Papaleo and occasionally by Mr Papaleo’s mother, Mrs Maria Handley, principal of the practice. Mrs Handley is now approximately 70 years of age, only works four days per week and has recently placed her practice on the market for sale. While there had been another masseur in the practice, the current staffing level is uncertain.
EVIDENCE BEFORE THE TRIBUNAL
Mrs Maria Cantone
Mrs Cantone provided all the details of her husband’s stroke and his current status. She has to cut up his food for him as he eats using his left hand. He can cope with his toileting and is able to walk with her assistance or a walking stick. When away from home, he wears a brace on his right lower limb. Mrs Cantone believes her husband suffers a considerable amount of pain which is cramp-like in nature and disturbs his sleep. When his pain is severe his mood changes and he becomes irritable or what she described as snappy.
Mrs Cantone noted that after massage by Mr Papaleo, her husband was much happier, had less pain and was more upright in his stance. His sleep also improved. This improvement lasted two to four days depending on his level of activity. If he exerted himself more, such as in his vegetable garden, his pain recurred more rapidly. Mrs Cantone informed the Tribunal that her husband had not attended any specialists such as a neurologist or neurosurgeon, speech therapist or the like since about 2006 when his rehabilitation providers assessed him as having achieved maximal improvement. She was of the opinion that Mr Papaleo’s massage was the most beneficial of any they had tried, including Mr Ward and Mrs Handley and the other masseur in Mrs Handley’s practice, all of whom treated him for only a few months.
Mr Sam Papaleo
Mr Papaleo is qualified as a remedial massage therapist and naturopath and has been in full time practice for 27 years. Initially, he practiced with his mother in Whittlesea. He has treated Mr Cantone since 14 July 2006 and sees him on a weekly basis. The treatment lasts for 35 to 45 minutes. Mr Papaleo treats the right and left sides, as apparently Mr Cantone overuses his left side and develops symptomatology related to overuse.
Mr Papaleo provided several reports (T23 and T24) and more recently a short report outlining his experience (Exhibit A2). Mr Papaleo said he measured the efficacy of the massage given in terms of Mr Cantone’s functional capacity and in particular the blood flow in his right-sided limbs and the movement in his arms and legs. The lessening of the degree and strength of the clawing was also a pointer to the remedial effect of the massage.
Mr Papaleo was unaware of any other masseur in the Wallan/South Morang district or even in the City of Melbourne central business district (CBD). He was aware of where practices were situated but did not know the abilities of the various masseurs.
In cross-examination Mr Wallace questioned Mr Papaleo’s expertise and any specialisation he held in the treatment of patients who have suffered a stroke. Mr Papaleo had in fact only treated two others prior to Mr Cantone becoming a patient and one other since. He does not consider himself to be a specialist in the massage treatment of patients with strokes. Mr Papaleo confirmed that Mr Cantone exhibited hyper-reflexia and spasticity in his right upper and lower limbs. Mr Papaleo was able to inform the Tribunal that his mother had now stopped performing remedial massage in her clinic in Whittlesea.
The Tribunal asked Mr Papaleo if he had measured the improvement in the range of movement of Mr Cantone’s right lower limb following a massage. Mr Papaleo estimated that following his treatment there was an increase of 10 degrees in the total range of movement of Mr Cantone’s right ankle; the site of an Achilles tendon contracture.
Dr John Griffiths
Dr Griffiths has been Mr Cantone’s general practitioner for many years. He had referred Mr Cantone for massage therapy, initially to Mr Ward and thereafter to Mr Sam Papaleo. In Dr Griffiths’ opinion, Mr Cantone showed a temporary improvement in his right upper and lower limbs following massage.
Dr Griffiths was able to inform the Tribunal that there were many masseurs in the surrounding district where he practiced, the majority of them being lay people. There was a so-called myo-therapist in Wallan but in Dr Griffiths’ opinion he was not very good. There were however, three excellent physiotherapists who did perform remedial massage and he agreed with Mr Wallace that the benefit Mr Cantone might derive from physiotherapy and massage provided by a physiotherapist could only be assessed if such treatment was trialled. Dr Griffiths also agreed that there was no solid evidence to support the use of massage in stroke.
While Mr Cantone had not been seen by a neurologist for many years, Dr Griffiths had tried him on a course of Baclofen in 2010. This had not been of any benefit. Dr Griffiths had given consideration to repeating the Botox treatment given in 2004 to 2005 and may do so in the future.
Dr Peter Stevenson
Dr Stevenson, a consultant physician, provided a report at the request of the Respondent (Exhibit R2). In the letter of instruction from Sparke Helmore Lawyers on behalf of the Respondent, Dr Stevenson was asked to answer the following questions:
·Does the performance of massage in this case.... require any particular qualifications or experience?
·Does a long term therapeutic relationship assist with post-stroke massage, over and above the normal advantages inherent in a long term clinical relationship?
·Are there any other comments you wish to make relevant to the effect of Mr Cantone’s condition?
Dr Stevenson was provided with the relevant reports, all of which are included in the T-Documents.
In his report of 15 April 2015 Dr Stevenson stated that while there was a probable placebo effect from massage there was no scientific evidence of therapeutic benefit. In the case of spasticity and hyper-reflexia, Dr Stevenson advised that there were far better treatments available such as the use of an antispasmodic like Baclofen and for local spasticity, Botox injections. Dr Stevenson had performed a literature search and referred to the data found, none of which reported scientifically acceptable trials of massage therapy. On the question of the benefits of a long-term therapeutic relationship, Dr Stevenson did not address this question directly, stating that long-term passive manipulation is fairly ineffective therapy for spinal pain.
In his evidence before the Tribunal, Dr Stevenson confirmed the content of his report. He also advised that the evening before the hearing he had discovered that he had seen Mr Cantone for a medico-legal opinion on 8 April 2005. This report contained Dr Stevenson’s findings on physical examination of Mr Cantone and noted spasm in his right foot and some power and coordination of the right lower limb enabling him to walk short distances. There was considerable hyper-reactivity and hypertonicity in the leg. The reflexes were pathologically increased on the right ... and ...There was a marked spastic paralysis of the right upper limb (Exhibit R4).
Dr Stevenson confirmed he had found hyper-reflexia and spasticity in 2005 and expected it would have persisted despite Dr Griffiths’ evidence that there was no hyper-reflexia present. Dr Stevenson reiterated his opinion that there was no evidence that massage was effective in the treatment of hypertonicity and spasticity.
Under cross-examination, Dr Stevenson said it was impossible to divorce the question of whether a treatment was reasonable from whether the travel costs to obtain it were reasonable. In his opinion, the treatment was clearly not reasonable. Dr Stevenson did not agree with Mr Carey’s contention that general practitioners frequently refer patients for massage as stated by Dr Griffiths. Dr Stevenson had no knowledge of such a pattern of referral and had not seen patients such as Mr Cantone referred for massage. He believed the improvement that Mr Cantone was said to experience was short term and if in fact there was lasting functional improvement this would be a startling scientific response not previously reported in the literature.
Dr Stevenson had assumed from the letter of instruction that there were other masseurs more locally placed than Mr Papaleo.
DOCUMENTARY EVIDENCE
In a letter to the Respondent’s Workers’ Compensation Claim Manager dated 26 September 2014, Mr Ron Handley, the husband of Maria Handley, the owner of Basics Complete Health formerly Whittlesea Basics, stated that Mr Cantone had been treated by a number of remedial therapists in the practice but none of them, including Maria Handley, were able to achieve the equivalent results obtained by Sam Papaleo. Mr Handley advised that there were two remedial therapists capable of treating Mr Cantone at Basics Complete Health in Whittlesea, one of whom was his wife.
RELEVANT LEGISLATION
The relevant sections under the SRC Act are ss 16(6), 16(7) and 16(8) which provide:
16 Compensation in respect of medical expenses etc.
...
(6)Subject to subsection (7), if:
(a)compensation in respect of the cost of medical treatment is payable; and
(b)the employee reasonably incurs expenditure in doing either or both of the following:
(i) making a necessary journey for the purpose of obtaining that medical treatment;
(ii) remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
Comcare is liable to pay compensation to the employee:
(c)in respect of the journey—of an amount worked out using the formula:
Specified rate per kilometre x Number of kilometres travelled
where:
specified rate per kilometre means such rate per kilometre as the Minister specifies, by legislative instrument, under this subsection in respect of journeys to which this subsection applies.
numbers of kilometres travelled means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey).
(d)in respect of the employee remaining for the purpose of obtaining the treatment—of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.
(7)Comcare is not liable to pay compensation under subsection (6) unless:
(a)the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or
(b)if the journey made by the employee involved the use of public transport or ambulance services—the employee’s injury reasonably required the use of such transport or services regardless of the distance involved.
(8)The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:
(a)the place or places where appropriate medical treatment was available to the employee;
(b)the means of transport available to the employee for the journey;
(c)the route or routes by which the employee could have travelled; and
(d)the accommodation available to the employee.
The Tribunal was informed that the distance of the round trip to South Morang is 74 kilometres and the current specified rate per kilometre is 60 cents.
SUBMISSIONS
Mr Carey identified the only issue as being whether it was reasonable for the Respondent to incur travel expenses on behalf of Mr Cantone after October 2013 when Mr Sam Papaleo moved his practice from Whittlesea to South Morang. This treatment had been ongoing and successful since 2006. Mr Carey submitted that there was no dispute as to the entitlement to therapeutic massage.
Mr Cantone relied on the assessment of the efficacy of treatment as described by Mr Papaleo and Dr Griffiths as well as Mrs Cantone’s evidence of a subjective benefit in the form of Mr Cantone’s improvement in mood after these massage sessions.
Mr Carey contended that there was no evidence of a remedial masseur closer than South Morang, despite the continuing practice of massage by Mr Papaleo’s mother Mrs Handley, in Whittlesea. The evidence before the Tribunal was that Mrs Handley was limiting her practice, had been unable to accommodate Mr Cantone as a patient in 2013 and was in the process of selling her practice. Given the absence of any identifiable suitably qualified alternative masseurs, Mr Carey submitted it was reasonable that the Respondent continued to meet the travel costs for the provision of therapeutic massage in South Morang.
Mr Carey distinguished the decision of Senior Member Ettinger in Paul Peter Corfield and Australian Postal Corporation [2000] AATA 533 on the basis that Mr Corfield’s travel costs for physiotherapy were unreasonable in that: ... it was not reasonable for him to travel some 70 kilometres for physiotherapy treatment which was able to be provided much closer to his home.
Mr Wallace contended that Mr Carey’s approach was misconceived in that it was impossible to separate the reasonableness of the payment of travel costs from the reasonableness of the underlying treatment. He contended that if long term massage was not effective, travel costs could not be considered reasonable. Mr Wallace pointed out that at the time the decision was made, namely, 18 August 2014 there were two therapists providing massage in Whittlesea. It was contended that the only effect relating to the therapeutic massage was a placebo one and that similar effect may be achieved by another masseur once rapport was established.
TRIBUNAL’S DELIBERATIONS
Mr Cantone has exhibited signs and symptoms of a relatively dense right hemiparesis since suffering an intracerebral bleed at the level of the left basal ganglia in late October 2004. The Tribunal accepts the evidence provided by Dr Stevenson when he examined Mr Cantone in April 2005, that the left basal ganglia haemorrhage had resulted in a dense right hemiparesis with hypertonicity, hyper-reflexia and spasticity.
The Tribunal rejects Dr Griffiths’ evidence that there was no hyper-reflexia. The physical signs listed by Dr Stevenson are classical findings following basal ganglia haemorrhage as described in any text book of physiology or neurology. Over the years, there has been some improvement in the function of Mr Cantone’s right lower limb to the extent that he can walk with some assistance or supervision and is able to tend to his vegetable patches. He continues to suffer from nominal aphasia and has developed clawing due to contractures in both his right hand and right foot and apparently a contracture at his right ankle. There has been no specialist treatment in the form of attendance at a neurologist since 2005 when it was determined that his rehabilitation had reached its maximal level despite the use of Botox in the treatment of his Achilles tendon contracture.
Since 2006, Mr Cantone has received remedial massage with short-term relief of pain, hypertonicity and improvement in his mood as evidenced by his improved sleep and walking. Mr Papaleo also reported a 10 degree increase in the range of movement of his right ankle following massage. However, the improvement is limited to two to four days and the greater his level of activity the lesser the period of improvement.
As it is more than 10 years since his intracerebral haemorrhage, medical evidence indicate that it appears unlikely he will improve further and treatment is being directed at retaining what mobility Mr Cantone currently has. Mrs Cantone, Dr Griffiths and Mr Papaleo believe that the therapeutic massage is functionally beneficial. This functional improvement has only been attained by Mr Papaleo and not by other masseurs who have treated Mr Cantone in the past. Clearly, Mr Papaleo and Mr Cantone have developed an excellent clinical relationship.
Mr Papaleo does not have any specialist training, knowledge or experience in the treatment of hemiplegic patients who have suffered intracerebral haemorrhages. Despite his 27 years of practice he has only treated four people with such intracerebral vascular catastrophes. Mr Papaleo was unable to assist the Tribunal in terms of recommending another therapeutic masseur closer to Mr Cantone’s home in Wallan. Similarly, Dr Griffiths was not able to nominate any particular masseur who might be able to provide the level of treatment and develop the rapport that exists between Mr Cantone and Mr Papaleo, although he gave evidence that there were numerous masseurs practicing in Wallan and nearby.
Dr Griffiths has given evidence of the availability of numerous masseurs but more relevantly he has indicated that there are three excellent physiotherapists available in Wallan and provided their information.
Evidence has been provided that the use of massage is of no scientifically accepted benefit in Mr Cantone’s case. The Tribunal accepts that the Respondent has not challenged the reasonableness of the provision of this treatment but only the reasonableness of the expenses engendered by travel to South Morang.
The Respondent has relied on the decisions in Stevens and Comcare [1995] AATA 310 Corfield and Mecke and Comcare [2006] AATA 593. In all three decisions, the Tribunal found it was not reasonable for the applicant to incur travel costs when treatment was available much closer to home. On a factual basis, Mecke is more relevant to Mr Cantone’s matter in that it involved the treatment by a particular chiropractor providing massage therapy of the Bowen variety and manipulative mobilising techniques found to be readily available from numerous practitioners in the area. The choice of the particular treating chiropractor was a personal preference there being a close bond between Mr Mecke and the chiropractor and the applicant having great faith in the treatment he received.
Dr Griffiths has agreed that it may well be appropriate for Mr Cantone to be reviewed by a neurologist and also that the use of Botox injections to the right lower limb in the treatment of Achilles tendon contracture should be revisited. While a qualified masseur has not been identified in Wallan, Dr Griffiths has said there are such people available. Further investigation as to the availability in surrounding rural areas has not been undertaken. Dr Griffiths however spoke glowingly of the abilities of three local physiotherapists and these should certainly be able to provide appropriate, if not identical treatment, in order to maintain Mr Cantone’s functional levels.
It appears to the Tribunal that Mr Cantone would benefit from specialist review in the form of the opinion of a neurologist. There is no scientific or clinical evidence before the Tribunal that similar massage therapy aimed at reducing hypertonicity, hyper-reflexia and contracture formation cannot be achieved by a physiotherapist sited closer to Mr Cantone’s home.
The Tribunal affirms the decision under review.
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Associate
Dated 22 July 2015
Date of hearing 17 June 2015 Counsel for the Applicant Mr Mark Carey Solicitors for the Applicant Mr Don Opie, Patrick Robinson & Co. Counsel for the Respondent Mr John Wallace Solicitors for the Respondent Mr Andrew Shelley, Sparke Helmore Lawyers APPENDIX
Applicant
·Statement of Mrs Carmen Cantone dated 26 March 2015 (including correction dated 10 June 2015) – Exhibit A1
·Undated letter from Mr Sam Papaleo faxed on 31 March 2015 outlining his qualifications and Applicant’s treatment – Exhibit A2
·Letter from Dr John Griffiths dated 12 February 2015 regarding Applicant’s massage treatment – Exhibit A3
Respondent
·T-Documents (section 37 documents) – Exhibit R1
·Report of Dr Peter Stevenson dated 22 April 2015 – Exhibit R2
·Letter of instruction from Sparke Helmore Lawyers to Dr Stevenson dated 9 April 2015 – Exhibit R3
·Report by Dr Stevenson to GIO dated 8 April 2005 – Exhibit R4
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