Church and Comcare (Compensation)
[2019] AATA 673
•9 April 2019
Church and Comcare (Compensation) [2019] AATA 673 (9 April 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1681
Re:Dianne Church
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:9 April 2019
Place:Sydney
The decision under review is affirmed.
...........................[sgd].............................................
Chris Puplick AM, Senior Member
CATCHWORDS
Workers’ Compensation – injury sustained in 1986 – reasonable medical expenses – chiropractic treatment – lumbar disc prolapse – injury misdiagnosed – applicant no longer suffering the effects of the accepted injury – whether Applicant presently entitled to medical expenses – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988
CASES
Comcare Australia v Rope [2004] FCA 540
Howard and Comcare [2017] AATA 2381
King and Comcare [2018] AATA 3042
Pethes and Comcare [2018] AATA 483
Smith and Comcare [2018] AATA 2901
ZXCF and Comcare [2018] AATA 3017
SECONDARY MATERIALS
David Wotton, Bad Medicine – Doctors doing harm since Hippocrates (Oxford University Press, 2007)
Transport Accident Commission and Worksafe Victoria, 'Clinical Framework for the Delivery of Health Services' (Clinical Framework, Health Service Group, Transport Accident Commission and Worksafe Victoria, June 2012)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
9 April 2019
This is an appeal by Ms Dianne Church (the Applicant) against a decision made on 2 March 2018 by Comcare (the Respondent) to cease payments for certain treatments the Applicant had been receiving, following a back injury suffered in June 1986.
There are two primary reasons advanced for Comcare in support of their decision, namely that
·The original injury had resolved itself and as a result it could not be said that treatment was being provided “in relation to the condition” as is required by section 16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act)[1]; and
·Even if such treatments were accepted as being related to the original injury, they are no longer reasonable treatments for the Applicant to be receiving in her current circumstances and, by current best practice are “costly, unlimited in duration, ineffective and passive.”[2]
[1] Section 16(1) 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.”
[2] Respondent’s Statement of Facts, Issues and Contentions at [37].
RELEVANT CHRONOLOGY
·On 19 June 1986 while the Applicant was an employee of the Commonwealth Bank (then a Commonwealth instrumentality) she sustained a back injury at work;
·On 21 July 1986 the Applicant made a claim for workers’ compensation arising from this injury and this claim was accepted by Comcare on 8 July 1988;[3]
[3] Section 37 Tribunal Documents at [56].
·Commencing some time in 1986, Comcare began paying for chiropractic treatment for the Applicant. This treatment had not been prescribed for her by any medical practitioner but was undertaken as a result of her own initiative after she had been treated by way of the use of traction, a restraining corset and epidural steroid injections, none of which appeared to relieve her pain symptoms.
·Dr David O’Malley, an Orthopaedic Surgeon examined the Applicant in May 1988 and reported to her employer that “chiropracty has no place in her treatment”.[4]
[4] Section 37 Tribunal Documents at [55].
·On 11 August 1988 the Bank wrote to Comcare asking for a review of their acceptance decision of 8 July 1988 in the light of Dr O’Malley’s report.[5]
[5] Ibid at [56].
·Comcare responded to this request by the Bank on 26 October 1988 stating:
“ despite the specialist’s opinion on this matter, the claimant is obtaining significant relief from the symptoms of her back condition as a result of chiropractic treatment. It is my decision that the treatment which Ms Church has received, and continues to receive, from her chiropractor is medical treatment as defined in section 5 of the Act, and that it is reasonable in the circumstances for the claimant to obtain such treatment (section 37). The determinations referred to in paragraph 1[6] are therefore affirmed.”
[6] i.e. of 8 July 1988.
·The Applicant thus began a regime of chiropractic treatment and up until the date of the determination of 2 March 2018 had received somewhere in the order of 309 sessions of such treatment.
·In 2010 the Applicant also began seeing a massage therapist and sought support from Comcare to pay for these sessions of treatment. Comcare commenced to do so and since that time (until 2 March 2018) had paid for some 99 such occasions of service.
·In addition to chiropractic and massage treatment the Applicant was also having regular consultations with her General Practitioner to develop and monitor a comprehensive treatment plan to address her back pain issues.
·In June 2012 the Clinical Framework for the Delivery of Health Services was published by the Victorian Transport Accident Commission and Worksafe Victoria. It sets out five principles for the delivery of allied health services to injured workers. Over a period of time this Clinical Framework has been adopted across Australia and it is now used by Comcare to evaluate the treatment of injured workers.[7]
[7] Smith and Comcare [2018] AATA 2901 at [80] per Deputy President Humphries.
·On 1 August 2017 Comcare wrote to the Applicant referring to her treatment plan with the advice that: “… as a general rule, Comcare will pay for only one physical therapy at a time, unless there is compelling clinical justification for concurrent physical therapies.”[8] This advice was repeated in writing to the Applicant on 12 September 2017 and 17 January 2018.[9]
[8] Section 37 Tribunal Documents at [160].
[9] Ibid at [173] and [191] respectively.
·In the Comcare letter of 17 January 2018 the Applicant was advised that under s. 16 of the Act
“you are entitled to: Reasonable expenses/expenses based on Comcare’s fee schedule for general practitioner consultations, chiropractor consultations (monthly) OR massage treatment (monthly)(not both) from 17 January 2018 to 25 August 2018.”[10]
[10] Ibid at [191] emphasis in original.
·That letter made reference to Comcare assessing claims in line with the Clinical Framework and advised that any treatment claims after 25 August 2018 would need to be accompanied by further supporting evidence from her treating doctor.
·The Applicant was dissatisfied with this advice purporting to restrict her Comcare support to only one treatment and so, on 12 February 2018 lodged a formal request for reconsideration of that decision.[11] Comcare acknowledged receipt of her request and sought further advice from her employer.[12]
·It therefore came as a major surprise to her when on 2 March 2018 Comcare advised her that as a result of this review: “
“The evidence has been carefully considered and the original determination can no longer be sustained and is therefore revoked. In revoking the determination, liability is declined for massage, chiropractic treatment and general practitioner consultations for the period 17 January 2018 to 25 August 2018 …”[13]
·In explaining the details behind Comcare’s reasons for revocation of previous determinations, Comcare also advised that, despite the prior warnings having been issued that payments would be made for only one form of physical therapy. Comcare had in fact made payments for more than one in September, October and November 2017. Comcare advised that this was “due to administrative errors” on their part.[14]
·These “administrative errors” on its own part nevertheless did not prevent Comcare from writing to the Applicant on 23 March 2018 seeking repayment of these over-payments in the sum of $312.80.[15]
·By letter dated 26 March 2018 (received 4 April 2018) the Applicant lodged an appeal with this Tribunal against the Comcare decision of 2 March 2018 and the matter was heard on 3 April 2019.
·In the interim, Comcare arranged for the Applicant to be examined by Associate Professor Neil McGill, a Consultant Rheumatologist at Royal Prince Alfred Hospital and he provided a comprehensive report dated 3 October 2018.[16]
[11] Ibid at [194-197].
[12] Ibid at [198].
[13] Ibid at [202].
[14] Ibid at [206].
[15] Ibid at [211].
[16] This was submitted to the Tribunal, together with Comcare’s commissioning letter on 19 October 2018.
As noted above, the bases for the Comcare revocation decision call into question both the nature of the original injury and its subsequent resolution and the nature and appropriateness of the Applicant’s past and continuing treatment. Both must be considered by the Tribunal.
THE ORIGINAL INJURY AND DIAGNOSIS
On 19 June 1986 the Applicant, then employed by the Commonwealth bank, was lifting, carrying and depositing a box containing bank documents when she experienced some form of back strain or spasm. This was aggravated by being required to stand during a train journey to her home later that day. On 21 July 1986 she lodged a compensation claim related to the injury with the Bank, in which she claim to be suffering from (in her words) “a lower back strain.”[17]
[17] Section 37 Tribunal Documents at [51].
The exact nature of the injury which she suffered is a matter of some contention.
The first purported diagnosis was by her General Practitioner (Dr P Mala) who issued her with an unfit for work certificate on 18 July 1986 due to a “disc prolapse”[18] and a similar certificate was issued by Orthopaedic Surgeon Dr L S Wije-Tunga on 19 August 1986 referring to “lower back pain”.[19]
[18] Ibid at [15].
[19] Ibid at [16].
As noted above the Applicant initially referred to it as a lower back strain; however, in a report on 6 May 1987, Orthopaedic Surgeon Dr David O’Malley described it as “a mild intervertebral disc prolapse”. In that report he noted that “Plain x-rays were apparently normal. CT scan (4.7.86) was normal.” He also noted that the Applicant had no prior history of back pain and was active in playing sports.[20]
[20] Ibid at [53].
There are a number of medical certificates from a variety of practitioners, including Mr Christopher Nelson (Doctor of Chiropractic)[21] and Dr Heather Bassett (specialist in physical medicine and rehabilitation) throughout 1988 and 1989. Dr Bassett refers to minor surgery being undertaken on the Applicant’s lumbar facet joints with a prognosis that she (along with 85% of all similar patients) should benefit from the procedure and in a short period of time, experience an improvement in her symptoms.[22]
[21] Ibid at section [T3].
[22] Ibid at [59].
Again, as noted above, the Applicant was also treated by way of traction, the use of a corset and steroid injections, however she says that these provided her with little relief and, of her own volition, she started visiting a chiropractor more regularly.
From the outset, Comcare accepted responsibility for a compensation claim based on “disc prolapse” and proceeded to support the Applicant on that basis. Letters to her dated 1 April 1993 and 6 August 1993 are indicative of this.[23]
[23] Ibid at [61] and [65].
Reports or diagnoses referring to “lumbar disc prolapse” continued to be provided in respect of the Applicant up until at least 25 August 2017.[24]
[24] Ibid at [161].
However, when the Applicant was referred for examination to Professor McGill in October 2018 he came to a significantly different conclusion. Professor McGill was provided (by Comcare) with extensive documentation related to the Applicant, including the documents before the Tribunal, together with some other medical records produced under summons and copies of AAT Guidelines for persons giving expert opinion. Professor McGill took a detailed history from the Applicant and conducted a physical examination.
His conclusions were to the effect (inter alia) that:[25]
“The appropriate label for her lower back region symptoms is non-specific lower back pain. I think it is reasonable to conclude that she had a lumbar strain in June 1986. There is no evidence to support the suggestion that she suffered from a disc protrusion.”
“I think the physical effect of the work activities in June 1986 would have ceased in weeks (at the outside within three months).”
“Ms Church does not continue to suffer the effects of “lumbar disc prolapse.”
“I do not think that massage or chiropractic treatment is reasonable for her to continue and I do not think that either has been reasonable treatment over the extended period that has occurred.”
“She does not require further investigation or assessment. Reassurance that her symptoms are commonly experienced in the general community, do not represent a threat with respect to her future function, and do not require passive therapy, are the relevant messages for her. Some patients (within and outside the compensation setting) become dependent upon the provision of passive therapy. It does not[26] result in measurable improvement in function and does not promote self-management.”
[25] Report of Professor N McGill, Tribunal Document R3 dated 3 October 2018.
[26] The word “not” was omitted in the written report but added by way of correction by Professor McGill in his oral testimony.
In his oral testimony to the Tribunal, Professor McGill also made four further points to the effect that:
1.His examination of previous x-rays, scans and images provided the basis upon which he reached some of this conclusions, but he noted that there was a relative scarcity of continuing medical assessment of the Applicant’s condition once she started to reply upon “complementary” (the Applicant’s term) treatments and made fewer visits to specialists or to medical imaging facilities;[27]
2.He stated that he accepted that massage therapy and chircopracty may have some short term benefit immediately after some sort of traumatic incident but that their long term value is highly questionable and not supported by strong empirical evidence;
3.The Applicant’s initial treatment of traction, corset and injection would not be regarded as appropriate treatment today and that the reliance upon “passive” therapies such as massage and chiropracty is not in accordance with the principles of the Clinical Framework for the Delivery of Health Services;
4.The Applicant’s condition of non-specific lower back pain is one which is suffered by a very significant number of members of the general community.
[27] There is however a report from Dr di Geuna (Brisbane Waters Radiology) dated 30 November 1995 which refers to “Minor disc bulges at the L3/4, L4/5 and L5/S1 level with no evidence of neural element compromise.” Section 37 Tribunal Documents at [70].
The Respondent invited the Tribunal to accept Professor McGill’s findings to the effect that the Applicant’s original injury should have been diagnosed as a form of lumbar or lower back strain and not as a disc prolapse.
The Tribunal is inclined to do so, on the basis of Professor McGill’s expert testimony, although making such determinations reaching back over three decades is always problematic.
The Tribunal does however feel itself to be on firmer ground in agreeing (in line with Professor McGill’s findings) with a comment in a report by Dr Hayley Charters (a general practitioner who has treated the Applicant for several years) to the effect that: “Dianne no longer has a prolapsed disc”,[28] although she does go on to state that she believes that the Applicant’s continuing lower back pain was a result of the original injury (whatever its precise diagnosis).
[28] Letter from Dr Hayley Charters (dated 20 April 2018) submitted by the Applicant and accepted as Tribunal Evidence [A1].
THE “REASONABLENESS” OF ON-GOING TREATMENT
Leaving aside, for one moment, the consequences of findings about the nature of the original injury and its current status, it is also necessary for the Tribunal to consider whether, in the event of finding that the Applicant is entitled to continuing support from Comcare, that support should be in the form of chiropractic and massage therapies and interventions.
The evidence demonstrates from the outset the all of the specialists who were asked to provide advice about the Applicant’s treatment have advised against chiropracty. This starts with the original May 1988 report of Dr O’Malley[29] and continues through to the October 2018 report of Professor McGill.
[29] Section 37 Tribunal Documents at [55].
The Applicant, in her oral evidence, made it clear that the decision to undertake chiropractic treatment was hers alone and that she came to that conclusion after finding that the interventions and treatments from “mainstream” or “conventional” medical sources had not been of assistance to her. She added massage therapy at a later stage after receiving support to do so from an exercise physiologist who she was seeing. She also makes the point that she does not regard these therapies as “passive” and in relation to her own regimes, she adds some core-strengthening and other exercises designed to help relieve her symptoms.
As already noted, Comcare has come, in recent years, to rely upon the approach set out in the Clinical Framework for the Delivery of Health Services and this reliance has been endorsed by this Tribunal on numerous occasions.
In Smith, Deputy President Humphries both outlined the principles set out in the Framework which he accepted were proper standards against which to determine whether treatment was “reasonable” and gave further elaboration of what the tests of reasonableness might encompass.[30]
[30] Smith and Comcare [2018] AATA 2901.
[81] The five principles enunciated by the Clinical Framework are:
1.Measure and demonstrate the effectiveness of treatment
2.Adopt a biopsychosocial approach
3.Empower the injured person to manage the injury
4.Implement goals focused on optimising function, participation and return to work
5.Base treatment on the best available research evidence
[78] In Rope and Comcare [2018] AATA 42 (Rope No 3) I observed that, although the principles applied in some of the above cases occasionally appear to be pulling in slightly different directions, some broad observations can be distilled from them regarding what will or will not be considered reasonable treatment pursuant to s 16. Generally speaking, treatment is more likely to be considered reasonable where:
its benefits are substantial and its cost is low;
it is effective, i.e. achieves measurable benefits;
it is active and promotes self-management of the compensable condition;
it is consistent with the principles in the Framework; and
it is of limited duration.
[79] Conversely, treatment is less likely to be considered reasonable where:
its benefits are insubstantial and its cost is high;
it is passive and promotes dependence on itself; and
it is ongoing and indeterminate.
These principles were referred to further in Pethes[31] and endorsed by the Tribunal in King.[32] The Federal Court has held that it is a legitimate part of the Tribunal’s responsibility to “engage in a cost/benefit analysis” in relation to Comcare-supported treatments.[33]
[31] Pethes and Comcare [2018] AATA 483.
[32] King and Comcare [2018] AATA 3042.
[33] Comcare Australia v Rope [2004] FCA 540 at [17] per Stone J.
There is Tribunal authority supporting the proposition that where a condition ceases to exist it is proper for Comcare to cease paying related compensation payments. In the case of Howard, the Applicant suffered injuries in 2006 following a motor-cycle accident on her way to work. Her treatment for on-going pain which also involved numerous complementary therapies (osteopathy, massage and acupuncture) was supported by Comcare until 2016 at which stage, medical evidence suggested that the applicant no longer suffered from the effects of the 2006 incident and Comcare support was withdrawn.[34] On appeal, the Tribunal upheld Comcare’s decision.
[34] Howard and Comcare [2017] AATA 2381 at [32].
There is a directly analogous case in ZXCF. In this instance the applicant “sustained a lower back injury while moving files at work on 20 January 1986”. Comcare accepted liability for the injury diagnosed as “a prolapsed disc”. This initial injury was aggravated by a further incident (in this case a motor vehicle accident while travelling to work). Treatment was provided relying primarily upon chiropracty. This treatment continued for some 30 years until it was reviewed in August 2017 at which stage it was determined that the applicant “was no longer suffering from the effects of the accepted injury” and her compensation payments were withdrawn.[35] The Tribunal upheld this decision by Comcare.
[35] ZXCF and Comcare [2018] AATA 3017 at [2], [15] and [38].
In Smith, Deputy President Humphries stated:
“Medical opinion strongly tends to the view that the long term use of passive treatment cannot generally be viewed as reasonable treatment of a worker’s injury.”[36]
[36] Smith and Comcare [2018] AATA 2901 at [98] emphasis in original.
The Tribunal faces a difficult conundrum in relation to the question of what is reasonable in all the circumstances. The question of what is “reasonable” has both objective and subjective elements.
On the one hand, Comcare advances the proposition that after 309 sessions of chiropractic treatment over 31 years and 99 massage treatments over seven years, it is no longer reasonable for such treatments to continue as they clearly are not bringing about any long-term improvement in the applicant’s condition. Further, Comcare asserts that current medical best practice does not support the long-term (or to use the Framework’s terms “ongoing and indeterminate”) use of passive therapies and finally it advances the proposition that the Applicant no longer suffers from the direct effects of the original injury. In all these circumstances it holds that continuing with the current arrangements would be unreasonable.
In response the Applicant put her case succinctly and eloquently when she said to the Tribunal: “If the treatment alleviates my pain shouldn’t it be considered reasonable?”
CONSIDERATIONS
In relation to the original injury suffered by the Applicant, the Tribunal, after taking into account all the evidence and appreciating that regardless of the precise diagnosis, the Applicant has predicated all her treatment on the belief that she was suffering from a prolapsed disc, nevertheless comes to the conclusion that the correct original diagnosis should have been one of non-specific lower back pain.
That possible mis-diagnosis may well have had the consequence of inappropriate treatments being prescribed: the traction, corset and injections. When they proved to be ineffective (as was thus inevitable if they were treating the wrong condition) the Applicant turned to the complementary therapies. Despite these being advised against by the specialist at the time they were accepted and compensated by Comcare. They continued to be paid over a period of some three decades.
Approaches to medical treatment develop and change over time. People are no longer bled to alleviate symptoms, nor confined to sanitaria or mental “institutions”; polio sufferers no long face years in an iron lung; medical practitioners no longer appear in advertisements for cigarettes and children are no longer given cough syrups based upon opium. As David Wotton has shown in his book, Bad Medicine – Doctors doing harm since Hippocrates,[37] medical science continuously gropes its way towards better and more effective treatments.
[37] David Wotton, Bad Medicine – Doctors doing harm since Hippocrates (Oxford University Press, 2007)
The general acceptance of the Clinical Framework for the Delivery of Health Services marks such a step forward in the treatment of work-related injuries in particular and the responsible, and hence, “reasonable” thing to do is to be guided by its principles and recommendations.
These are clearly to the effect that so-called “passive” treatments (despite the somewhat pejorative nature of that term – one could equally describe a course of injections as “passive”) should be avoided to as large an extent as possible. They should be replaced with the active involvement and leadership of the patient and, although this course of action alleviates Comcare of any direct responsibility for the management of the Applicant’s health, the weight of medical evidence is that this is the better course for her long term and sustainable approach to pain management.
Similarly, if the Tribunal takes into consideration the tests of what is reasonable and what is less so, as set out in Smith, the Tribunal would have to conclude that the current regime does not provide benefits which are substantial and it does not achieve measurable benefits. The Applicant herself says that she gets relief for a limited period but then the relief wears off and she needs more treatment. The regime is not active and does not promote self-management, It is not consistent with the principles of the Framework and clearly it has not been of a limited duration. Finally, such treatments do not appear to meet any test of being financially cost effective and hence a justifiable expenditure of public monies.
Conversely, the regime provides only insubstantial (in temporal terms) benefits, it encourages dependency and it is ongoing and indeterminate.
At the outset of these Reasons the Tribunal identified the key issues as follows:
·The original injury had resolved itself and as a result it could not be said that treatment was being provided “in relation to the condition” as is required by section 16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) and
·Even if such treatments were accepted as being related to the original injury, they are no longer reasonable treatments for the Applicant to be receiving in her current circumstances and, by current best practice are “costly, unlimited in duration, ineffective and passive.”
It finds that each of those propositions is sustained.
RECOMMENDATION TO COMCARE
The Tribunal has noted above the issuance of a debt notice to the Applicant in the sum of $312.80 resulting from overpayments made by Comcare which it has accepted were the result of “administrative error” on its part.
Section 114 of the Act deals with debts which arise where
(b) an amount of compensation that has been paid to a person under this Act should not have been paid;
Sections 114C and 114D provide as follows:
Section 114C (1) Comcare may decide, in writing, to write off a debt due to Comcare.
Section 114D (1) Comcare may decide, in writing, to waive its right to recover from a person the whole or a part of a debt due to Comcare.
In all of the circumstances of this case and given that the administrative error was made by Comcare in terms of paying for more than one treatment after they had written to the Applicant stating explicitly that they were not going to do this, the Tribunal recommends to Comcare that consideration be given to waiving this particular debt.
DECISION
The decision under review is affirmed.
I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...............................[sgd].........................................
Associate
Dated: 9 April 2019
Date(s) of hearing: 3 April 2019 Applicant: By phone Solicitors for the Respondent: Ms E Baggett, Moray & Agnew Solicitors
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