Church and Comcare (Compensation) - [2019] AATA 673

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Church and Comcare (Compensation)

Details

AGLC: Church and Comcare (Compensation) [2019] AATA 673
Case: [2019] AATA 673
Decision Date: 9 April 2019

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against a decision by Comcare regarding the provision of medical expenses for an injury sustained in 1986. The applicant sought compensation for chiropractic treatment, arguing that it alleviated her pain. Comcare had previously accepted liability for the original injury, which involved a lumbar disc prolapse, but disputed the ongoing entitlement to medical expenses for the chiropractic treatment.

The central legal issue before the Tribunal was whether the applicant was presently entitled to payment for chiropractic treatment, given that the original injury was no longer considered to be the cause of her current symptoms and that the treatment regime was not considered to be active, sustainable, or cost-effective. The Tribunal was required to determine the reasonableness of the requested medical expenses in light of evolving medical understanding and established principles for assessing the appropriateness of treatment.

The Tribunal acknowledged that the applicant's treatment had been predicated on the belief of a prolapsed disc, but concluded that the correct original diagnosis should have been non-specific lower back pain. It noted that while the chiropractic treatment provided temporary relief, it did not offer substantial or measurable benefits, nor did it promote active patient involvement or self-management, which are key principles of the Clinical Framework for the Delivery of Health Services. Applying the tests of reasonableness, the Tribunal found that the current treatment regime was not consistent with modern medical practice, was not of limited duration, and was not financially cost-effective, thus not a justifiable expenditure of public funds.

Despite affirming the decision under review, the Tribunal recommended that Comcare consider waiving any debt arising from its administrative error in continuing to pay for treatments after explicitly stating it would not do so.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.