Cremona and Comcare (Compensation)

[2020] AATA 696

Cremona and Comcare (Compensation) [2020] AATA 696 (1 April 2020)

Division:GENERAL DIVISION

File Number(s):      2018/6736

2019/2629

Re:Maria Cremona  

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:1 April 2020  

Place:Brisbane

The Tribunal affirms the decisions under review.

.................................[SGD]..........................................

Member D Mitchell

CATCHWORDS

COMPENSATION – liability accepted in respect of injury – where Applicant suffered from somatisation disorder – where Applicant claimed psychological treatment – whether treatment is in relation to injury – whether treatment is reasonable in the circumstances – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Alamos v Comcare [2014] AATA 629

Oliver v Comcare [2017] AATA 252

REASONS FOR DECISION

Member D Mitchell

1 April 2020

INTRODUCTION

1. Ms Maria Cremona (the Applicant) is seeking review of two decisions of the Respondent in relation to compensation for psychological consultation expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in relation to her accepted somatisation disorder (the injury).

2. The first reviewable decision[1] was made on 26 October 2018[2] and affirmed a determination dated 4 September 2018[3] that accepted liability existed to pay compensation for medical expenses under section 16 of the SRC Act for two psychological consultations between 20 August 2018 and 20 November 2018.

   [1] Relating to Tribunal file number 2018/6736.

   [2] Exhibit 1, T Documents, T163, pages 443-447, Reviewable Decision.

   [3] Exhibit 1, T Documents, T159, pages 419-421, Determination – medical expenses.

3. The second reviewable decision[4] was made on 28 March 2019[5] and revoked the determination dated 30 January 2019[6] instead deciding that liability did not exist to pay compensation for medical expenses under section 16 of the SRC Act for two psychological consultations on 29 November 2018 and 13 December 2018.

   [4] Relating to Tribunal file number 2019/2629.

   [5] Exhibit 3, T Documents, T12, pages 20-24, Reviewable Decision.

   [6] Exhibit 3, T Documents, T7, pages 11-12, Determination.

   BACKGROUND AND CLAIMS HISTORY

4. The Applicant has a long-standing claim for workers’ compensation as a result of an injury sustained in the workplace on 12 February 1998. The Applicant described her injury as “concussion, whiplash, postural sprain of lumbar ligaments, back muscle damage, bruising and swelling, abrasions”.  She said her “head, face, right arm, right leg and ankle, lower back, hands (both), knees (both), right wrist” were affected by her injury.[7]

   [7] Exhibit 1, T Documents, T4, pages 10-15, claim for Rehabilitation and Worker’s Compensation.

5. The Respondent accepted liability under section 14 of the SRC Act for “bruising and swelling bridge of nose, bruising back of hands, bruising and abrasions to knees, pain in right ankle and headaches” on 17 March 1998[8] and “lumbar ligament strain” on 27 March 1998.[9]

   [8] Exhibit 1, T Documents, T5, page 16, Determination – accept liability (physiotherapy).

   [9] Exhibit 1, T Documents, T6, page 17, Determination – accept liability for lumbar ligament strain.

6. By at least April 1999, the Applicant’s physical injuries had been said to have resolved[10] and no further compensation was paid in relation to these accepted injuries.

   [10] Exhibit 1, T Documents, T9, pages 24-30, Report: Dr David Thomas, Consultant Surgeon; T11, pages 32-36, Report: Dr P Grainer Smith, Psychiatrist.

7. On 14 July 2000, the Respondent accepted liability under section 14 of the SRC Act in “respect of Chronic Pain Disorder associated with psychological factors resulting as a direct consequence from a resolved physical injury that arose in the course of her employment on 12 February 1998”.[11]

   [11] Exhibit 1, T Documents, T19, page 63, Determination – vary determination dated 31 May 2000, accepting compensation.

8. At some point at the end of the year 2000 the Applicant’s Chronic Pain Disorder started being referred to as somatisation disorder.[12]

   [12] Exhibit 1, T Documents, T26, page 90, Determination, accept liability; T27, pages 91-100, Report: Dr Walter Mickleburgh, Consultant Psychiatrist.

9. It is relevant to note that although a person with somatisation disorder symptoms usually take the form of pain of one kind or another, that pain is purely psychological in terms of its origin – the pain people with somatisation disorders suffer from is entirely lacking in a physiological basis.

10. The Applicant commenced receiving treatment from Ms Janine Mahoney, Psychologist, in 1998.[13] By 2001, the Applicant was being treated by Ms Mahoney on a weekly basis.[14]

    [13] Exhibit 1, T Documents, T8, pages 19-23, Report: Janine Mahoney, Psychologist.

    [14] Exhibit 1, T Documents, T28, pages 101-103, Letter: from Applicant to Respondent attaching Medical Review Certificate, Dr Patrick Cullen; T29, pages 104-106, Letter from Applicant to Respondent attaching Medical Review Certificate, Dr D Lawrence; T30, pages 107-109, Letter from Applicant to Respondent attaching Medical Review Certificate, Dr D Lawrence; T31, pages 110-112, Letter from Applicant to Respondent attaching Medical Review Certificate, Dr D Lawrence.

11. Having relocated from Canberra to the Gold Coast, the Applicant commenced receiving treatment from Mr Craig Holt, Psychologist, on 20 December 2002.[15]

    [15] Exhibit 1, T Documents, T42, pages 130-132, Report: Craig Holt, Psychologist; Exhibit 8, Mr Craig Holt’s, Patient file notes for the period 20 December 2002 to 27 December 2018.

12. A Clinical Panel Review was conducted and the Panel noted that the Applicant had undergone 549 sessions of psychology treatment between December 1998 and 2 November 2017.  On 20 August 2018, the Panel recommended that compensation be accepted for two sessions of psychological treatment between 20 August and 20 November 2018 and then cease.[16]

    [16] Exhibit 1, T Documents, T158, pages 414-418, Clinical Panel Review.

13. The Respondent accepted the recommendation of the Panel and a determination to that effect was issued on 4 September 2018.[17] The Applicant sought review of the determination[18] and on 26 October 2018 the determination was affirmed.[19]

    [17] Exhibit 1, T Documents, T159, pages 419-421, Determination – medical expenses.

    [18] Exhibit 1, T Documents, T162, pages 441-442, Request for Reconsideration.

    [19] Exhibit 1, T Documents, T163, pages 443-447, Reviewable Decision.

14. The Applicant sought review of that decision by the Tribunal by an email dated 15 November 2018.[20] This application for review was allocated Tribunal number 2018/6736.

    [20] Exhibit 1, T Documents, T2, pages 3-8, Application for Review.

15. On 17 January 2019, the Applicant requested that the Respondent reinstate acceptance of liability for her fortnightly therapy sessions with Mr Holt until the Tribunal decided application 2018/6736.[21]

    [21] Exhibit 3, T Documents, T5, page 9, Letter from Applicant.

16. A further Clinical Panel Review was undertaken and on 18 January 2019, the Panel reiterated their recommendation of 20 August 2018 and recommended that the request for the reinstatement of the Applicant’s treatment not be approved.[22]

    [22] Exhibit 3, T Documents, T6, page 10, Clinical Panel Review.

17. On 30 January 2019, the Respondent made a determination accepting liability for a further two sessions of treatment over a three-month period.[23] The Applicant requested review of the decision[24] and on 28 May 2019 the determination was revoked and liability was denied for psychological treatment.[25]

    [23] Exhibit 3, T Documents, T7, pages 11-12, Determination.

    [24] Exhibit 3, T Documents, T11, pages 18-19, Request for reconsideration of determination.

    [25] Exhibit 3, T Documents, T12, pages 20-24, Reviewable decision.

18. The Applicant sought review of that decision by the Tribunal by a letter dated 7 May 2019.[26] This application for review was allocated Tribunal number 2019/2629.

    [26] Exhibit 3, T Documents, T2, page 5, Application for review of decision.

19. It is noted that there is over 20 years of medical evidence before the Tribunal in relation to the Applicant’s injury and treatment thereof. These have been considered in conjunction with the medical evidence and other evidence provided during and after the Hearing.

20. The Applicant has on a number of occasions sought review by the Tribunal of decisions made by the Respondent regarding her claims for compensation in relation to her injury.

21. A Hearing of these matters was conducted on 9 October 2019.  The Applicant was self-represented, appeared by telephone and gave evidence under affirmation. The Respondent was represented by Ms Kate Slack of Counsel, instructed by Sparke Helmore Lawyers.

    THE LAW

22. Section 16 of the SRC Act deals with compensation in respect of medical expenses and relevantly provides:

    (1)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.

    …

    [emphasis added]

23. Medical treatment is relevantly defined in section 4 of the SRC Act to mean:

    (a)medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or

    (b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or

    …

    ISSUES

24. At Hearing the Respondent agreed that the claimed ongoing psychological consultations constituted ‘medical treatment’ for the purpose of section 16 of the SRC Act.[27] Based on the evidence before the Tribunal, the Tribunal accepts this position.

    [27] Transcript, page 3.

25. The primary issues before the Tribunal are:

    1.Whether by 20 November 2018, the claimed ongoing psychological consultations are treatment obtained ‘in relation to’ the Applicant’s somatisation disorder; and

    2.If so, whether by 20 November 2018, the claimed ongoing psychological consultations are treatment that is reasonable for the Applicant to obtain in the circumstances?

    EVIDENCE

26. There are a number of medical reports that relate to the Applicant’s injury and treatment thereof before the Tribunal.  These reports outline the onset of the injury and subsequent treatment. A full analysis of previous reports has been undertaken on a number of occasions in subsequent medical reports and decisions, such analysis will not be reproduced in this decision.

27. At the outset of the Hearing the Applicant indicated that she had not received the Respondent’s Statement of Facts Issues and Contentions or Ms Gierlicz’s report dated 26 July 2019. It was agreed that the Hearing would proceed and the Applicant would be provided with these documents and given an opportunity to make written submissions.

28. The Applicant provided written submissions, post Hearing, dated 6 November 2019 and the Respondent advised that they would not provide any submissions in reply.

    Evidence of Mr Craig Holt

29. Mr Holt has been the Applicant’s treating psychologist since 20 December 2002. Between 20 December 2002 and 27 December 2018 Mr Holt had provided in excess of 300 psychological consultations to the Applicant.[28]

    [28] Exhibit 8, Mr Craig Holt’s, Patient file notes for the period 20 December 2002 to 27 December 2018.

30. In the evidence before the Tribunal there is a large number of reports authored by Mr Holt. The common factor across these reports is that Mr Holt recommended that the Applicant be provided with ongoing psychological treatment.

31. In a report dated 15 July 2018, responding to a request for report made by the Respondent dated 12 April 2018,[29] Mr Holt provided the following background:[30]

    I have treated [the Applicant] since 20 December 2002.

    [The Applicant] has had extensive psychological, psychiatric, medical and specialist assessment since her injury on 12 February 1998.

    I have treated [the Applicant] consistently for stress, anxiety, depression, adjustment to injury, chronic pain and Somatocization Disorder, and have provided regular reports to [the Respondent] regarding her treatment and the need for ongoing treatment.

    [The Applicant’s] accepted compensable condition with [the Respondent] is Somatocization Disorder.

    ….

    Dr Varghese has recommended ongoing psychological treatment. I have reported previously that [the Applicant] has consistently presented with a combination of symptoms including anxiety, depressed mood and chronic pain. At times, she suffers from severe exhaustion.

    I have previously raised the issue that her diagnosis of Somatocization Disorder does not cover fully her presenting symptomatology from the time of her injury.

    [29] Exhibit 1, T Documents, T156, pages 408-410, Request for report: Mr Holt

    [30] Exhibit 7, Report of Mr Craig Holt dated 15 July 2018.

32. In response to the specific questions asked, Mr Holt outlined that while he understood the Applicant’s current diagnosis, he did not agree with it, he said that the Applicant’s presentation with him fulfils the criteria for an Adjustment Disorder with mixed anxiety and depressed mood. Mr Holt’s view was that the Applicant’s condition, as he saw it, was resultant from her workplace injury.[31]

    [31] Exhibit 7, Report of Mr Craig Holt dated 15 July 2018.

33. In response to the Respondent’s decision dated 4 September 2018 to approve two psychological consultations between 20 August 2018 and 20 November 2018, Mr Holt provided a report dated 25 September 2018.  He provided that he had grave concerns for the Applicant’s wellbeing and functioning, should treatment be reduced.[32]

    [32] Exhibit 1, T Documents, T161, page 440, Report: Mr Holt.

34. In a report dated 1 November 2018, Mr Holt provided:[33]

    I would like to reiterate that [the Applicant’s] presentation has always been consistent with chronic pain. The diagnosis of Somatocisation Disorder may apply in conjunction with chronic pain.

    I have grave concerns for [the Applicant’s] well-being, should psychological treatment be discontinued. The consequences would be serious for her, as she requires regular treatment to try and maintain quality of life. She continues to present with anxious and depressed mood. She has had previous episodes of severe anxiety with panic.

    In my experience, chronic illness requires chronic treatment. [The Applicant] has attempted to self-manage her symptoms, but requires ongoing psychological and medical assistance.

    [33] Exhibit 2, Supplementary T Documents, ST1, Letter from Mr Holt.

35. In response to the Respondent’s decision dated 30 January 2019 to approve two further psychological consultations over a three month period, Mr Holt provided a report dated 7 February 2019. Mr Holt provided:[34]

    [The Applicant] has had treatment from her general practitioners since her injury for anxiety and depression and has been prescribed antidepressant medication to manage her symptoms. I continue to treat [the Applicant] for pain, anxiety and depression. Her accepted condition by [the Respondent] is Somatocization Disorder. I disagree with the diagnosis as stated in my letter of 1 November 2018. Dr Gregory Apel, Independent Psychiatrist, previously diagnosed [the Applicant] with Pain Disorder. [The Applicant] has also had an independent assessment from Dr Persley, Psychiatrist, confirming that diagnosis.

    I note your comment about Dr Varghese’s statement regarding treatment. [The Respondent] has paid for treatment of anxiety, depression and chronic pain, along with treatment for Somatocization Disorder since her injury. Her presentation remains consistent with anxiety and depression, secondary to chronic pain.

    [34] Exhibit 3, T Documents, T9, pages 14-15, Letter from Mr Holt.

    Evidence of Ms Jane Gierlicz

36. The Applicant’s claims for compensation for ongoing psychological consultations had been referred to the Respondent’s Clinical Panel for assessment and recommendation on a number of occasions.[35] The Panel reports were authored by Ms Jane Gierlicz as a clinical psychologist.  As outlined above, the Panel recommended on 20 August 2018 that compensation be accepted for two sessions of psychological treatment between 20 August 2018 and 20 November 2018 and then cease. The Panel reiterated this recommendation on 18 January 2019.

    [35] Exhibit 1, T Documents, T101, pages 250-253, Clinical Panel Review; T158, pages 414-418, Clinical Panel Review; Exhibit 3, T Documents, T6, page 10, Clinical Panel Review.

37. In making the recommendation of 20 August 2018, MsGierlicz provided:[36]

    I note the following:

    - the [Applicant] (also referred to as "the worker" in this report) has had an enormous amount of psychology treatment, 500+ sessions, close to 20 years of contact.

    - despite this amount of treatment, the [Applicant] has not attained goals of managing her pain, anxiety or depression and has required ongoing input. Arguably the treatment has not been efficacious, nor has it empowered the [Applicant] to manage her injury, therefore the treatment has not been consistent with the Clinical Framework.

    - The latest independent examiner, Psychiatrist Dr Varghese, said in April 2017 that the treating psychologist's view that the [Applicant’s] difficulties have a physical basis are confusing as if this is the case it is difficult to see why she is seeing a Psychologist. Further he opines that if the treatment is reinforcing the [Applicant’s] view that her disability is physical this is counter-productive and leading to her difficulties being prolonged rather than treated.

    Based on this information I make a recommendation that the [Applicant’s] psychology treatment is ceased. It is unclear what contact she has had with the Psychologist since November 2017, presumably ongoing but without [the Respondent] having been billed yet. I recommend she have a further two sessions over three months, and then cease treatment. I recommend treatment to date be paid.

    [36] Exhibit 1, T Documents, T158, page 416, Clinical Panel Review.

38. At the request of the Respondent, Ms Gierlicz provided a report dated 26 July 2019[37] which provided a fuller explanation of why the recommendations referred to above were made by the Panel. By way of context Ms Gierlicz provided the following:[38]

    In my role on the Clinical Panel [for the Respondent] I reviewed the psychology treatment of [the Applicant] four times. I first reviewed the claim in August 2012, then again in December 2016, August 2018 and January 2019. I had a phone discussion with Mr Holt, her treating Psychologist, in August 2012. By August 2018 I formed the view that the psychology treatment was not consistent with the Clinical Framework and made a recommendation to the Claim's Manager that the treatment cease, with provision of two sessions over three months to allow for the treatment to be weaned before ceasing.

    I note by way of background that [the Applicant] is 74yo. She was injured in 1998. She last worked in about 2001. In 2002 she relocated from ACT to Queensland where she remains resident.

    [The Applicant] first had psychology treatment with Janine Mahoney in the ACT from 1998 to 2002. They met for 212 sessions. She then recommenced psychology treatment with Mr Holt on her relocation to Queensland. They first met in December 2002 and have had 366 sessions to 7.2.19. Therefore, [the Applicant] has had a total of 578 sessions of psychology treatment from 1998 to 2019.

    [37] Exhibit 6, Report of Ms Gierlicz, Clinical Psychologist pages 1-6.

    [38] Exhibit 6, Report of MsGierlicz, Clinical Psychologist page 1.

39. In her report Ms Gierlicz responded to a series of questions. In response to the question “Why ongoing psychology sessions do not satisfy the Clinical Framework?” she provided full analysis of each of the principles of the Clinical Framework in relation to the psychological treatment received by the Applicant.[39]  The principles of the Clinical Framework For the Delivery of Health Services (Clinical Framework) are:[40]

    (1)  Measure and demonstrate the effectiveness of treatment

    (2)  Adopt a biopsychosocial approach

    (3)  Empower the injured person to manage their injury

    (4)  Implement goals focused on optimising function, participation and return to work

    (5)  Base treatment on the best available research evidence

    [39] Exhibit 6, Report of Ms Gierlicz, Clinical Psychologist pages 1-6.

    [40] Exhibit 4, Secretary’s Statement of Facts, Issues and Contentions, Attachment A, Clinical Framework For the Delivery of Health Services.

1. Ms Gierlicz concluded that in her view the psychological treatment provided by Mr Holt did not meet any of the principles of the Clinical Framework. In particular, having reviewed 5 treatment plans submitted by Mr Holt, his session notes from 20 December 2002 to 27 December 2018 and the reports Mr Holt provided to the Respondent over those years, Dr Varghese’s reports of 11 April 2017 and 18 April 2019 and her Clinical Panel Reviews of August 2012, December 2016, August 2018 and email of January 2019 she provided:[41]

   [41] Exhibit 6, Report of Ms Gierlicz, Clinical Psychologist pages 1-6.

   ·In my opinion the treatment provided by Mr Holt was not measured appropriately or adequately and given the [Applicant’s] fluctuating mental state with significant deterioration in her mental state at times, the psychology treatment was not demonstrably effective.[42]…

   [42] Exhibit 6, Report of Ms Gierlicz, Clinical Psychologist page 3.

   ·The [Applicant] has been diagnosed with Somatisation Disorder, that is, she experiences somatic complaints which cannot be fully explained by a general medical condition. In my opinion it is likely that [the Applicant] has the following barriers to improvement:[43]

   [43] Exhibit 6, Report of Ms Gierlicz, Clinical Psychologist page 3.

   ·Unhelpful beliefs about the injury. The [Applicant] believes that her symptoms have a physical basis as per her seeking physical treatments, eg, Physiotherapy, massage treatment, podiatry. She has also sought household help given her "physical" disability. This is in a situation where her diagnosis indicates that she experiences somatic symptoms in the absence of any physical explanation of these.

   ·Poor coping strategies. The [Applicant] has pursued resolution from a medical perspective together with passive physical treatment, eg. massage, rather than developing cognitive and behaviour strategies to manage. Dr Varghese outlines a Cognitive Behavioural approach to Somatisation Disorder in his report of April 2017. This is in fact the evidence based treatment for Somatisation Disorder which I will detail later in this report.

   ·Passive role in recovery. The [Applicant] has not developed strategies to self manage and has relied on passive treatments, eg. massage, ongoing psychology treatment at high frequency, rather than developing the ability to manage without this type of passive, frequent input.

   ·The [Applicant] has difficulties with depression and anxiety.

   ·It is possible the [Applicant] has had little social support with her move from the ACT to Queensland, and then with her divorce which has occurred sometime since her move.

   ·The [Applicant] has pursued legal options with [the Respondent’s] decisions to limit or cease treatment.

   ·Mr Holt makes reference to the [Applicant’s] need for assistance from physiotherapy (Letter to [the Respondent] 5.2.15) massage (Letter to GP 22.12.15) and home help (Letter to [the Respondent] 16.11.16). From this I infer that Mr Holt has not challenged the [Applicant’s] belief that the injury has a physical basis, and that he has reinforced and supported her need for passive treatment. In supporting her use of these strategies, he has reinforced a belief that the basis of her difficulties is physical, and encouraged a passive approach to managing her injury. Arguably this has been detrimental to the [Applicant].[44]…

   ·In reviewing Mr Holt’s session notes and letters to [the Respondent] he does not refer to developing strategies for the [Applicant] to self manage her condition. He does not refer to the principle of self management at all.  He has not reduced the frequency of sessions, indeed at times when the [Applicant] has experienced crises he has increased the frequency of the sessions. A reduction in session frequency, that is more time between sessions, allows the patient time to utilize self management strategies. He has not promoted the [Applicant’s] independence from treatment. Rather the ongoing high frequency psychology treatment has promoted dependence on treatment, it has also potentially reinforced illness behaviour leading to persistent pain and long term disability.[45]…

   ·Mr Holt does not refer to any goals of treatment, or only refers to these in the broadest terms.[46]

   ·Mr Holt refers to many treatment modalities, including CBT, in his correspondence and treatment notes, but gives no specific information on the treatment provided therefore it is difficult to confirm that he has actually used CBT with the [Applicant]. Presumably if he did actually use CBT with the [Applicant] it would have targeted her beliefs about her injury and pain, and these do not appear to have changed in the 17 years they have been meeting. Mr Holt does at times in his notes refer to providing support to the [Applicant] (22.11.5; 28.2.6), the [Applicant] needing sessions for ventilation (26.8.8), and to "...give her coping skills on a day to day basis to work through issues as they arise ..." (29.8.6). These types of input do not meet the definition of CBT, rather they reflect a supportive input. After 17 years of treatment it is entirely understandable that treatment comes to be supportive in nature. Maintaining a focused CBT approach becomes more difficult the longer treatment continues.[47]

   [44] Exhibit 6, Report of Ms Gierlicz, Clinical Psychologist page 3.

   [45] Exhibit 6, Report of Ms Gierlicz, Clinical Psychologist page 4.

   [46] Exhibit 6, Report of Ms Gierlicz, Clinical Psychologist page 5.

   [47] Exhibit 6, Report of MsGierlicz, Clinical Psychologist page 5.

2. In response to the question “What psychological therapy is ordinarily administered to a person suffering from somatoform disorder?” Ms Gierlicz referred in her response to Principle 5 which relevantly provided:[48]

   From the Australian Psychological Society (APS) document "Evidence based Psychological interventions in the treatment of Mental Disorders", there is sound research support for Cognitive Behaviour Therapy (CBT) as an effective treatment for Somatisation Disorder. The study referred to in this document compared 40 studies of research on treating Somatisation Disorder to 2013. CBT when compared with treatment as usual or waitlist was found to be significantly more effective in reducing the severity of somatic symptoms at post—treatment. The effect size was small to medium. This result was maintained at 1 year follow up. The mean number of sessions was between 1 and 13 provided over 1 day to 9 months.

   CBT is defined in the APS document "Evidence based Psychological interventions in the treatment of Mental Disorders", as "...a focused approach based on the premise that cognitions influence feelings and behaviours, and that subsequent behaviours and emotions can influence cognitions. The clinician works with individuals to identify unhelpful thoughts, emotions, and behaviours. CBT has two aspects: behaviour therapy and cognitive therapy. Behaviour therapy is based on the theory that behaviour is learned and therefore can be changed. Examples of behavioural techniques include exposure, activity scheduling, relaxation, and behaviour modification. Cognitive therapy is based on the theory that distressing emotions and maladaptive behaviours are the result of faulty patterns of thinking. Therefore, therapeutic interventions such as cognitive restructuring and self-instructional training are aimed at replacing dysfunctional thoughts with more helpful cognitions, which leads to an alleviation of problem thoughts, emotions, and behavior [sic]....".

   [48] Exhibit 6, Report of Ms Gierlicz, Clinical Psychologist page 5.

3. In response to the remaining questions asked, Ms Gierlicz provided:[49]

   How long should such treatment be administered for?

   See my answer above at Principle five. It is likely that 13 sessions would have been necessary to implement an active CBT approach to treatment producing sustainable change.

   Whether that treatment is different to the treatment that Mr Holt administers and if so, how?

   In my opinion Mr Holt's treatment came to be supportive involvement, reviewing the [Applicant’s] difficulties on a session by session basis rather than treatment which was focused on achieving goals with regard to her beliefs and her functioning. This type of treatment is not CBT. As indicated, CBT treatment of Somatisation Disorder can produce sustainable change in a limited number of sessions.

   Whether, based on your prior discussions with Mr Holt, plans should already have been put into place by him to facilitate the applicant's smooth discharge from treatment?

   In my discussion with Mr Holt in 2012 he was amenable to a plan to wean treatment, and he referred to the possibility of moving the [Applicant] to episodic treatment, that is, a small number of sessions from time to time. He thought the [Applicant] would agree to this plan. In my opinion this would have been an entirely reasonable plan.

   In my opinion Mr Holt should have been considering a discharge from treatment at the end of their first year of contact, ie end of 2003, and most certainly by 2005. By the end of 2005 they had met for more than 60 sessions of treatment. Not forgetting that the [Applicant] had already been in receipt of more than 200 sessions of treatment with her previous treating Psychologist. By then it would have been obvious that treatment to achieve goals and effect change in the [Applicant’s] beliefs and functioning as per a CBT protocol was not going to occur.

   [49] Exhibit 6, Report of Ms Gierlicz, Clinical Psychologist pages 6.

   Evidence of the Applicant

4. At Hearing the Applicant told the Tribunal:[50]

   [50] Transcript pages 11-14.

   ·She had a physical injury that preceded the psychological damage that followed and that both of these situations pertain.

   ·In the last few years she had to get an ACAT assessment that provided her with some help at home and her GP provided her with a mental health plan for Medicare, under which she was, at the time of the hearing, being treated.

   ·She was seeking to be able to continue having her formal sessions with Mr Holt, who had seen her since 2002 fortnightly.

   ·Mr Holt was the only person who really knew about the development of her condition and who had been able to assist her to manage her condition such that she could continue to live independently in her house.

   ·When asked what condition, she considered that her psychology appointments with Mr Holt were treating, that “he is helping me manage all of these things that have caused me so much grief and robbed me of my life.”

   ·When asked if this treatment was helping: “Of course it’s helping. Why would I visit a counsellor fortnightly for such a long period of time if it was to no avail?”

   ·When asked what are the symptoms that Mr Holt was treating her for:

   I have depression that is becoming worse by the week, I have panic attacks.  I’m unable to get out of bed some mornings.  There’s a lot of anxiety, there’s a lot of chronic pain.  Now, chronic pain has been diagnosed by other psychiatrists and it seems to have fallen on deaf ears as far as Comcare is concerned.  I do not even know that the somatisation disorder diagnosis that was made in rather a hurry simply to put a label on what was going on early in the injury is the correct diagnosis.  Craig Holt believes that there is more to the diagnosis than what was originally recognised but I have tried to share this with Comcare again without getting any satisfaction whatsoever.

   This case has been mishandled from the outset.  That is the short of it.

   ….

   He is treating me for depression and anxiety, he is treating me for my panic attacks.  He understands that the chronic pain followed the physical injury, not the other way around.  I am still in physical pain.  I have parts of my body that aren’t working properly as a result of this injury.

5. On cross-examination, the Applicant told the Tribunal that:[51]

   ·She commenced her GP mental health plan earlier that year (being 2019) and had, had a few sessions with Mr Holt.

   ·The mental health plan entitled her to 10 sessions a year and she thought she had probably used half a dozen.

   ·When asked if it was fair to say that she had been using the sessions approximately once a month, that she had been seeing Mr Holt fortnightly for the most part, however it might have reached once a month because of times he was unavailable.

   ·She went to counselling when it was needed. For the most part it had been fortnightly, it might average a bit less than that over the year.

   ·When asked if she had paid for any of her treatments with Mr Holt personally: “No. Not from my pocket, no.”

   [51] Transcript, pages 14-15.

6. The Applicant provided written submissions, post Hearing, dated 6 November 2019 in which she provided relevant background of which she acknowledged was already documented and known to the Tribunal together with her responses to Ms Gierlicz’s report dated 26 July 2019.

7. The Applicant contended that Ms Gierlicz’s report could not be considered as providing a professional up to date review as she did not attempt to contact her or Mr Holt. In response to Ms Gierlicz’s report dated 26 July 2019, specifically the Clinical Framework, the Applicant provided the following submissions:[52]

   ·Unthinking application of Comcare's Clinical Framework, considered by Dr Varghese in his own words to be "rigid", is a poor platform for validation of the needs of injured workers Surely this framework is not the only basis available to psychologists in providing an opinion on preferred treatment needs of clients. The Clinical Framework chosen by Comcare in recent years could justifiably be construed as being for the benefit of the insurer rather than the client.

   ·Since the date of my injury, the therapy process provided to me has centred on maintenance in order to remain functional and able to live as independently as possible. Maintenance therapy, now being provided by Medicare at ten sessions a year, will be required for the foreseeable future.

   ·It goes without saying that chronic ailments require chronic treatment. With the withdrawing of Comcare's treatments other than psychotherapy since 2015, my levels of stress, persistent pain, lassitude and inability to cope with daily living have increased. I often, and sometimes for protracted periods, find that I am unable to face opening my AustPost mail, the result being penalty for late payment of rates or bills for services rendered. This behaviour is not something I enjoy or inflict upon myself. More particularly, the recent disputes with Comcare over my treatment needs together with preparation for several Tribunal conferences have left me with deteriorating mental outlook and coping ability.

   ·Together with (ongoing) medication prescribed by my various treating doctors for a litany of physical as well as psychological symptoms, CBT was introduced by Dr Janine Mahoney in Canberra. Subsequently it was applied by Craig Holt judiciously for the purpose of assisting with the management of pain, stress, anxiety, depression, panic attacks and more during my attempts at recovery.

   ·Latterly, with increasing knowledge, I understand that CBT is being challenged professionally as a means of contemporary treatment. Wishing to introduce hard measures to justify forms of therapy in Psychology is, I expect, an attempt to justify such therapy in the hope of making a science of it. As a formally trained scientist, graduated from the University of Melbourne, I can say it is not. One size cannot fit all in the context of the complexities of chronic pain or mental impairment.

   ·The fact that real pain persists in my case, leading on occasion to hospital admission, only reinforces my questioning of the labelling of my condition as "Somatisation Disorder", made so soon after the injury had occurred. Comcare knows well (through his correspondence to Comcare) that Mr Holt, has questioned the initial diagnosis as erroneously labelled by my then treating doctor in Canberra. It was adopted without question by Comcare. I, too, I have personally raised this question with Comcare only to be discouraged by the responsible desk officers at that time.

   ·With the passage of time, in concern for a physical basis to my symptoms, I undertook at my own expense to consult with Dr Gary Persley (Psychiatrist) who practises on the Gold Coast. Dr Persley, whose report was largely discounted by Comcare's solicitors and possibly the Tribunal, disagreed with comments made by Dr Varghese. Instead, Dr Persley's report supported the diagnosis of chronic pain disorder already made by Dr Apel.

   [52] Applicant’s submissions dated 6 November 2019, pages 3-4.

   Evidence of Dr Frank Varghese

8. Dr Frank Varghese, Consultant Psychiatrist, assessed the Applicant on 4 September 2015 and prepared a report dated 14 October 2015.[53]  He had also provided supplementary reports dated 22 April 2016[54] and 11 April 2017[55] in relation to previous Tribunal reviews.  In relation to the applications currently before the Tribunal, Dr Varghese provided a further supplementary report dated 18 April 2019 in which he provided reference to his opinions expressed in his reports of 14 October 2015, 22 April 2016 and 11 April 2017.[56]

   [53] Exhibit 1, T Documents, T126, pages 304-325, Report: Dr Frank Varghese, Consultant Psychiatrist.

   [54] Exhibit 1, T Documents, T134, pages 344-345, Report: Dr Frank Varghese, Consultant Psychiatrist.

   [55] Exhibit 1, T Documents, T145, pages 379-381, Supplementary Report: Dr Frank Varghese, Consultant Psychiatrist.

   [56] Exhibit 5, Report of Dr Frank Varghese, Consultant Psychiatrist, page 1.

9. The Tribunal had the benefit of reading the reports of Dr Varghese and material referred to by him upon which his reports had been based.

10. In the report dated 18 April 2019, Dr Varghese provided the following relevant overview:[57]

    I have perused Mr Holt's file notes from 20 December 2002 through to 27 December 2018 and also the several reports he has written over this period.

    It seems that [the Applicant] is being treated for a range of symptoms, including anxiety and panic symptoms and depression, as well as depressive symptoms of fatigue and sleep disturbance and self-esteem. At times the depression is described as severe. I also note reference to grief counselling and crisis management and adjustment to injury counselling. There is also reference to pain management, chronic pain and in the earlier consultations somatisation. The nature of the psychological intervention provided by Mr Holt is difficult to ascertain from the file notes, other than there is CBT.

    It seems then that the treatment is perhaps predominately with respect to psychiatric conditions and symptoms other than somatisation (Somatoform Disorder), which is the only accepted condition. On the other hand, it is difficult to see how Mr Holt could restrict himself to treating only specific aspects of the patient's problems in an atomistic way. He would have to deal with what the patient brings to the therapy.

    ……

    In [the Applicant’s] case, she is not getting better from the psychological treatment. Indeed, the indications are that her overall psychiatric status is deteriorating with emergence of depression sometimes described as severe and anxiety. She was certainly not suffering a depressive disorder at the time I saw her in 2015. A chronic Dysthymia may well have been present but certainly not Major Depression. As to whether she previously suffered Major Depression is uncertain.

    ….

    My report of April 2017 is noted. The recommendation is that the psychological treatment cease and there be a further two sessions over three months.

    [57] Exhibit 5, Report of Dr Frank Varghese, Consultant Psychiatrist, page 2.

11. In his report, Dr Varghese responded to a number of questions asked by the solicitors of the Respondent.  Relevantly, he provided:[58]

    [58] Exhibit 5, Report of Dr Frank Varghese, Consultant Psychiatrist, pages 3-4.

    1. Can you please comment on whether or not you remain of the opinion that the applicant's "condition of somatisation disorder is now beyond treatment as it is firmly imbedded in [the Applicant’s] lifestyle and indeed her sense of identity. No treatment procedure or intervention is going (to) change the situation at this stage in her life". Please explain why or why not.

    I continue to have this opinion. When I last appeared at the AAT regarding [the Applicant’s] applications, I note she remains committed to a somatic view of her symptoms.

    It is quite probable that since the diagnosis of a somatoform/somatisation disorder [the Applicant] has indeed developed degenerative change or other illness of her spine that is causing symptoms that have a physical basis but this is not a result of somatoform/somatisation disorder.

    ….

    4. Is there any reliable evidence that the psychological consultations, by November 2018, had in any reasonably measurable way, contributed to the amelioration or resolution of the applicant's somatisation disorder? Please explain why or why not.

    It does not seem that there has been any amelioration of the applicant's somatisation disorder. It is probably because it is not treatable as per question "1" above.

    5. Can you please comment on whether, by 20 November 2018, the claimed ongoing psychology consultations is treatment that you would recommend the applicant obtain in relation to her somatisation disorder. Please explain why or why not.

    I do not believe [the Applicant’s] somatoform/somatisation disorder is in fact amenable to psychotherapy as per "1" above.

    The treatment I would recommend would be psychological support (supportive psychotherapy) and she would benefit from more active therapy that may be provided by an occupational therapist or exercise physiologist with respect to increasing her overall psychosocial functioning, in particular her social functioning. It is probable that in the absence of psychological support there will be deterioration in Ms Cremona's overall psychosocial health although not necessarily of the somatoform/somatisation disorder.

    6. Please consider the enclosed clinical panel review conducted by a clinical psychologist dated 20 August 2018 (see T158 at page 414 of the T-documents) and comment on whether you agree or disagree with the recommendations and why or why not?

    I have noted the clinical panel review and I believe that there are significant risks in abruptly terminating [the Applicant’s] psychology sessions. She has been seeing a psychologist for several years about once every two weeks, thus it is likely that there is significant dependency and perhaps unresolved transference issues. Abrupt termination of therapy is likely to be significantly harmful to [the Applicant’s] overall mental health.

    There is a place for supportive psychotherapy in maintaining an individual's fragile stability even if there is no "cure" of the condition.

    If the psychotherapy is to be terminated, then [the Applicant] needs to be prepared for this by consultations over several months. I would suggest she continue two weekly psychotherapy with the aim of termination in six months.

1. At the Hearing, Dr Varghese gave evidence in person, under oath.  In response to questions asked by the Respondent, Dr Varghese:[59]

   [59] Transcript, pages 17-19.

   ·Confirmed that he is a medical practitioner and psychiatrist.

   ·Confirmed that he examined the Applicant on 4 September 2015 and as a result prepared a report dated 14 October 2015 and supplementary reports dated 22 April 2016 in relation to whether podiatry and massage was indicated, 11 April 2017 in relation to whether household help was indicated, and 18 April 2019 in relation to whether psychology treatment was indicated.

   ·Confirmed he had his report of 18 April 2019 before him and that the contents accurately reflected his opinion truly held by him.

   ·Confirmed his response to question 5 on page 4 of his report that he did not believe that the Applicant’s somatoform somatisation disorder was amenable to psychotherapy.

   ·When asked to explain the treatment that he was recommending in his response to question 1 in his report, in relation to psychological support, and whether that was in relation to the somatisation disorder or in relation to the other psychological conditions, said:

   No, that’s not in relation to the somatoform or somatisation disorder, which, as I said, I think has become too ingrained within [the Applicant’s] self-concept and lifestyle, so what I’m recommending there, as in psychological support, is really to enhance the quality of her life.  The impression one gets from assessment of [the Applicant], mind you it is several years since I have seen her, was that her overall social engagement is fairly minimal in terms of relationships and the main support she gets is from her psychologist.  So, in terms of enhancing the quality of her life, social engagement, psychosocial functioning, she would benefit from supportive psychotherapy, an occupational therapist assisting her, perhaps improving her fitness, that kind of thing.

   ·When asked if his opinion provided in response to question 6, that there were risks of abruptly terminating the Applicant’s psychological sessions, would change where: the Applicant had access to a GP mental health care plan, which allowed for 10 sessions a year and where the Applicant told the Tribunal that she obtained treatment whenever she needed it, which was approximately fortnightly, and having regard to the fact that the intersection of medicine and law, which in this case was important in that the Respondent’s decision did not require the Applicant to cease treatment, it just meant that the Government would not pay for it anymore under the auspices of Comcare, said:

   Well it doesn’t change my opinion that an abrupt cessation of treatment would be harmful.  [The Applicant] has had psychological treatment with Mr Holt for several years.  There is bound to be significant transference issues, what we call transference issues, and abruptly ceasing a therapeutic relationship over that length of time, without preparation, ongoing preparation of the patient, can bring about depression and anxiety.  That’s what I was concerned about.  But, as you say, the fact that Comcare has ceased the treatment doesn’t mean the treatment needs to stop. [The Applicant] can get the treatment through a mental health care plan.  It is limited to ten sessions, but there is room within the Medicare requirements to extend that; have a further session if the GP feels it’s useful.

2. On cross-examination, in response to questions asked by the Applicant, Dr Varghese told the Tribunal:[60]

   [60] Transcript pages 19-22.

   ·He had seen Mr Holt’s report dated 7 February 2019.

   ·He had not tried to speak with Mr Holt, as that was not part of his task.

   ·He had not examined the Applicant in the last 4 years as he had not been asked to. He had been asked to comment on documentation and on the treatment, not reassess her.

   ·When asked about his comment in his report of 18 April 2019 “As to whether she previously suffered major depression is uncertain.” In particular, why he had not tried to ascertain this information, that:

   I would have asked you about your past history, [Applicant].  Certainly, at the time I saw you there was no major depression.

   …..

   I did try and ascertain [whether the Applicant had suffered any major depression in the past] and in fact my recollection is I looked through the documentation as to whether [she] had major depression and I noted that some psychiatrist in my first report had suggested that there was depression, although that was not the agreement of others.  But, in any case, the accepted condition is not major depression.

   …..

   …. but major depression … is not a chronic condition, it’s an episodic condition, so there may well have been times when [she] had major depression and certainly, when I saw [her], [she] [wasn’t] in a state of major depression.  The mental state was not in keeping with that.  But [she] may well have had episodes of major depression in the past and it seems from Mr Holt’s notes that [she] had periods of depression since, but that’s all I can say, I’m not disputing that [the Applicant] [has] recurrent major depression.  The question I’m addressing is whether [she] needs a specific psychological treatment for the somatisation disorder.

   ·When asked if he had considered that without the treatment the Applicant had received in the 21-plus years that her condition would have become worse, as the Applicant said her physical ailments have certainly become worse and they were the precursors of the psychological condition, that he did not understand what the Applicant meant by her physical condition having become worse. He said:

   My understanding is that the physical injury, the symptoms [the Applicant] had from the physical injury were deemed to be of a somatoform type, in other words psychological.  So if it is the case that [her] physical state has in fact deteriorated then it suggests that the condition has not been amenable to treatment.  Unless of course there is another physical condition that has developed independent of the injuries.

   ·He accepted that the Applicant’s treatment with Mr Holt had helped her through periods of depression or dysthymia or anxiety. The question, which [the Respondent] was asking him, and  the question before the Tribunal was whether the treatment for the somatoform disorder or somatisation disorder had been effective. From what the Applicant was saying it had not been effective because she said her physical symptoms were in fact getting worse.

3. In responses to questions asked by the Tribunal, Dr Varghese:[61]

   [61] Transcript, pages 22-24.

   ·When asked if he could explain what the symptoms of a somatisation disorder were, said:

   A somatisation disorder or somatoform disorder, or it’s now changed to something else, I think we call it now somatic symptom disorder, is when, as a result of underlying psychological problems, an individual expresses their psychological difficulties through physical symptoms.  And they then behave as if they have the physical symptoms, so they complain of pain or they complain of paralysis or complain of lack of sensation or inability to balance or falling over or sometimes even fits.  And that is considered to be due to psychological factors rather than physical factors.  What the patient is attempting to do, that is why it is called somatoform, is actually imitate a physical illness and they do that according to their mindset as to how an injury or an illness will present.  So it’s a behaviour rather than an illness.  As I think I have said in my report, it’s something a patient does rather than something they have.

   ·When asked if the Applicant’s depression or anxiety was something quiet separate to the somatisation disorder, said:

   Yes.  It would have to be said though that when a person is in a state of major depression they are more likely to engage in somatoform symptoms, so a depression can manifest in somatoform symptoms.  And I asked that question in my original report, was this a manifestation of depression.

   ·When asked what psychotherapy would usually look like for somatisation disorder, said:

   Psychotherapy for somatisation disorder would be trying to look at the patient, what’s there in the patient’s background that has led to this somatisation, exploring in detail the developmental history, have they had a model of that illness in the family, has mum behaved like that or dad, is this a way the family has expressed emotional symptoms?  You would also address the alexithymia.  Alexithymia means the inability of a patient to actually describe their feelings and so it comes out in physical symptoms, so you would be encouraging the person to get in touch with their feelings and hopefully that way you don’t have to express it through physical symptoms.  And then you would also be exploring what is it about the patient’s life and circumstances at the present time that is leading them to want to be ill as a solution to life’s problems.

   ·When asked about the Ms Gierlicz’s opinion, that usually 13 sessions of treatment would be required to assist the person to self-manage, said:

   Yes, I think 13 is a bit too prescriptive; it depends on the patient.  And even up to a year or maybe even two years of treatment would be certain acceptable.  But I think what the therapy needs to do is not reinforce the somatisation.  And there is some indication that Mr Holt may not have accepted that there was somatisation disorder and that he’d been reinforcing the view that there is a physical disorder.

   ·When asked about his opinion that the Applicant’s somatisation disorder was not amenable to psychotherapy and if that means that, beyond the treatment she had already received, that further treatment was not reasonable in relation to this condition, said:

   Not for the somatoform or somatisation but I fully accept that in [the Applicant’s] current circumstances, psychosocial circumstances and the history of depression and anxiety, that she requires psychotherapy support to enhance the quality of her life.

   ·That the Clinical Framework was “a bit rigid”.

   Applicant’s Contentions

4. The Applicant contended that liability should be accepted by the Respondent for ongoing psychological treatment. At Hearing, in closing submissions, the Applicant said: [62]

   ….. I do not believe for one moment that Dr Varghese understands the full extent of this injury.  He never did, in my opinion, a full - and I have seen other psychiatrists, he’s not the only person I’ve ever seen in this field - he did not do a full diagnosis of my condition.  He failed to understand that there are physical symptoms that have preceded the psychological damage; that the somatisation disorder, as originally picked up by Comcare in a hurry to put a label on the injury for the sake of accepting liability at the time it happened 20 years ago, is probably not correct and according to Craig Holt, who has seen me since 2002 fortnightly and who knows my condition better than any medico knows, he disagrees with the original diagnosis.  And the third point I make about somatoform disorder is that a couple of years ago that whole concept of somatisation disorder was reviewed and republished and I do not believe that Dr Varghese is across the connection between the physical and the psychological, which is central to the review of what’s being said by the specialists these days.  So that is all I have to say.  Thank you.

   [62] Transcript page 25.

5. The Applicant confirmed that she had not sought review of the diagnosis of her injury or made further claims in relation to what she believed her condition to be.  She said she relied on the reports and her consultations with Mr Holt as to why she said the diagnosis was wrong.[63]

   [63] Transcript pages 25-26.

6. The Applicant contended that she had to avail herself of Government-funded assistance because the Respondent had turned its back on her in the last four years. She contended that transferring treatment from the Respondent to Medicare in her opinion was “quite unethical”.[64]

   [64] Transcript, pages 31.

   Respondent’s Contentions

7. The Respondent contended that it was not liable to pay compensation under section 16 of the SRC Act for the Applicant’s claimed ongoing psychological consultations on the basis that the treatment was not treatment obtained “in relation to” the Applicant’s injury and it was not “reasonable for [the Applicant] to obtain in the circumstances”.[65]

   [65] Exhibit 4, Secretary’s Statement of Facts, Issues and Contentions, page 3, paragraphs 4.1, 4.4-4.5.

8. The Responded accepted that the Applicant’s injury remained and that the somatisation disorder existed. The Respondent submitted that if the Applicant wanted the condition changed, this was something they had not had notice of and was not for the Tribunal to entertain.[66]

   [66] Transcript page 26.

9. At Hearing the Respondent contended:[67]

   In my submission, when you look at the evidence that Dr Gierlicz [sic] relies on and the studies that she has regard to, her opinion of the amount of treatment that would be reasonable, and even accepting Dr Varghese’s opinion, then ultimately the tribunal should find that the treatment that Mr Holt provides to the Applicant is either in relation to non-compensable conditions from which she may suffer or is just supportive therapy, being somebody for her to talk to on a regular basis.  Neither of those represents a strong enough connection to satisfy the “in relation to” test in my submission.

   [67] Transcript page 27.

10. The Respondent contended that, based on the report of Mr Holt dated 15 July 2018,[68] he appeared to accept that the Applicant’s complaints of there being a physical basis for her pain, as such how could he appropriately and thoroughly treat a somatisation disorder if he believed that there was a true physical basis for her condition.[69]

    [68] Exhibit 7, Report of Mr Craig Holt.

    [69] Transcript page 28.

11. On this point, the Respondent referred the Tribunal to Dr Varghese’s report dated 11 April 2017[70] where, in relation to Mr Holt’s treatment and CBT therapy, he said:

    I have noted the handwritten comments of treating psychologist Mr Craig Holt.  The views expressed are surprising and curious.  It seems that he considers that [the Applicant’s] physical symptoms have a physical basis in which case it is difficult to see why [the Applicant] is seeing a psychologist.

    …….

    If, on the other hand, the psychotherapy reinforcing the patient’s view that their disability is physical, then it is counterproductive, leading to prolongation of the somatisation as against its extinction.

    [70] Exhibit 1, T Documents, T145, page 380, Supplementary Report: Dr Frank Varghese.

12. The Respondent contended that on this basis the Tribunal ought to infer that Mr Holt’s approach indicated that the treatment he administered was not in relation to the injury.[71]

    [71] Transcript page 28.

13. The Respondent contended that in relation to reasonableness of treatment that the case law established that considerations were objective and also subjective in relation to the nature of the injury, not the details of the personal life of the Applicant and a cost-benefit analysis if required.

14. The Respondent contended that the Clinical Framework was relevant, and had been adopted by various Tribunals including in the case of Alamos v Comcare [2014] AATA 629 and applied by Deputy President Humphries in Oliver v Comcare [2017] AATA 252 as follows:

    The factors set out in the decisions of Alamos, together with the principles in the framework offer a useful checklist against which to assess how reasonable in the circumstances it is to be judged.

15. The Respondent sought to rely on the evidence of Dr Varghese and Ms Gierlicz,[72] in particular submitting that:[73]

    ·     Ms Gierlicz in her report dated 26 July 2019 provided that the Applicant’s claimed psychological treatment had not met the principles set out in the Clinical Framework.

    ·     In the report dated 26 July 2019, Ms Gierlicz applied the facts as she saw them, having regard to the clinical notes of Mr Holt and all of the material that was available as well as her understanding of the Clinical Framework, and methodically addressed why each of the five principles were not satisfied.

    ·     In Dr Varghese’s most recent report he recommended ongoing psychological support, that being supported psychotherapy, however he did recognise that it was not in relation to the injury, it was in relation to other lifestyle factors, other conditions.

    ·     With respect to Dr Varghese’s comment that treatment should not be ceased abruptly, it was not relevant in this case as the Applicant was receiving treatment at the level she wants. She said in her evidence that she obtained treatment when she needed it and had not had to reach into her own pocket to do that.

    [72] Exhibit 4, Secretary’s Statement of Facts, Issues and Contentions, page 3, paragraph 4.2.

    [73] Transcript, page 30.

16. The Respondent contended that “when the treatment that is currently provided for under another Government subsidised scheme is available to [the Applicant], she is availing herself of that treatment and doesn’t seem to be needing it with a high degree of frequency, then that also points to why the treatment paid for by the Respondent is not reasonable.”[74]

    [74] Transcript, page 30.

    CONSIDERATION

17. The evidence before the Tribunal shows that the Respondent had accepted liability pursuant to section 16 of the SRC Act in relation to psychological treatment in connection with the Applicant’s injury from 1998 up until November 2018 and to that date she had been in receipt of regular consultations with her psychologist.

18. While it appears that the ongoing acceptance of liability for this treatment has been an issue considered by the Respondent since at least 2012 (being the first Clinical Panel Review), the Tribunal is tasked to consider whether ongoing psychological treatment should be accepted pursuant to section 16 of the SRC Act from November 2018. The Tribunal is not tasked to consider whether the accepted liability prior to that date was appropriate.

19. Further, it is important to make clear that the Tribunal is limited to consider whether or not psychological treatment should be accepted pursuant to section 16 of the SRC Act with respect to the injury – being the somatisation disorder. The Applicant’s issue in relation to diagnosis and correctness of the accepted condition is a matter she needs to raise directly with the Respondent.

20. The Tribunal notes that the Applicant’s injury is one where she has symptoms of pain, for which there is no physiological basis but rather is purely psychological in terms of their origin. While the reference to the accepted diagnosis has changed over time, having considered the report of Dr P Grainger-Smith dated 23 April 1999 which made the initial diagnosis of “Chronic Pain Disorder associated with psychological factors” and made reference to making this diagnosis rather than the “alternative diagnosis of Chronic Pain Disorder with psychological factors and a general medical condition, in the understanding that whatever physical injury occurred during the fall has resolved,”[75] together with the subsequent reports before the Tribunal, the Tribunal is of the view the actual status of the accepted injury has not changed over time.

    [75] Exhibit 1, T Documents, T11, pages 32-36, Report: Dr P Grainer-Smith, Psychiatrist.

21. For liability for medical expenses to be accepted pursuant to section 16 of the SRC Act the treatment must be in relation to the injury. The evidence of both Ms Gierlicz and Dr Varghese clearly sets out their opinions that the ongoing psychological consultations provided by Mr Holt to the Applicant are not in relation to the Applicant’s injury but rather provide psychological support.

22. The evidence of Mr Holt makes reference to him treating a number of psychological conditions of the Applicant, of which he includes reference to the accepted injury. However, it appears that Mr Holt does not accept that the pain symptoms experienced by the Applicant in relation to the injury are psychological in origin rather than physiological. As such, it is questionable as to whether the treatment provided by Mr Holt is in relation to or of assistance to the Applicant’s injury.

1. The Tribunal accepts the Applicant’s evidence that she continues to require psychological consultations with Mr Holt to maintain her current level of independence.

2. The Tribunal also accepts the Applicant’s contentions that she experiences pain, for which she has been hospitalised and has sought treatment. It is not unreasonable that the Applicant may have over the period of time developed physical pain and associated medical conditions, however this is quiet separate to the accepted injury.

3. There is no suggestion by the Respondent, Ms Gierlicz or Dr Varghese that the Applicant may not need or continue to benefit from psychological support from Mr Holt, however the contention being made by the Respondent is that such treatment is no longer in relation to the accepted injury.

4. Based on the evidence provided by Ms Gierlicz and Dr Vargese, as outlined above, the Tribunal accepts this contention. The Tribunal, therefore, finds that by 20 November 2018 the claimed ongoing psychological consultations were not treatment obtained in relation to the Applicant’s accepted injury for the purposes of section 16 of the SRC Act.

5. Although the Tribunal considers that the claimed psychological consultations are not in relation to the Applicant’s accepted injury, for completeness the Tribunal will briefly address whether the treatment is reasonable for the Applicant to obtain in the circumstances.

6. The determination of whether treatment is reasonable for the Applicant to obtain in the circumstances requires consideration of a number factors, which may include the benefit of the treatment to the Applicant, the long-term effect of the treatment, whether the treatment is likely to cure the injury or significantly reduce its effects, whether the treatment maintains the status quo and the cost of ongoing treatment.[76]

   [76] See Deputy President Constance’s decision in Alamos and Comcare [2014] AATA 629.

7. While the Tribunal accepts that the Clinical Framework may be a rigid form of analysis in relation to the reasonableness of treatment it notes that it is a tool that has been adopted by the Respondent and other workers’ compensation agencies to:[77]

   ·     Optimise participation at home, work and in the community, and to achieve the best possible health outcomes for injured people.

   ·     Inform healthcare professionals of [their] expectations for the management of injured people.

   ·     Provide a set of guiding principles for the provision of healthcare services for injured people, healthcare professionals and decision makers.

   ·     Ensure the provision of healthcare services that are goal orientated, evidence based and clinically justified.

   ·     Assist in the resolution of disputes.

   [77] Exhibit 4, Secretary’s Statement of Facts, Issues and Contentions, Attachment A, Clinical Framework For the Delivery of Health Services.

8. The Clinical Framework provides an appropriate starting place in considering the effectiveness of treatment in the Applicant’s case and the Tribunal notes that it has been adopted by previous Tribunals when considering similar questions in relation to section 16 of the SRC Act.

9. The Tribunal accepts that based on the evidence before it, the treatment provided by Mr Holt does not meet the principles of the Clinical Framework.

10. The Tribunal considers that the evidence provided by Ms Gierlicz is consistent with that of Dr Varghese in that the provision of continued psychological treatment will no longer assist the Applicant’s injury as the evidence shows that the injury is no longer amenable to treatment. As such, even if the Tribunal did find that the treatment was in relation to the injury, it would not be reasonable treatment in the circumstances as the evidence suggests there is no immediate or long-term benefit to the treatment of the Applicant’s injury. Therefore, it is not reasonable for the cost of such treatment to be placed upon the Respondent.

11. The Tribunal notes the expressed medical concerns with a sudden cessation of psychological treatment being made available to the Applicant. The Tribunal further notes that, based on the Applicant’s evidence that she has continued to receive the treatment, at the frequency she requires, at no personal cost through avenues available under the Medicare system, this concern has been met.

12. The Tribunal acknowledges the Applicant’s contentions that the Respondent has provided access to psychological treatment for a long period of time, which she considers has been beneficial to her, and that it is inappropriate for the Respondent to then refuse to continue to provide such support, where not to do so will just mean she seeks it from an alternative Government pathway. The Tribunal does not agree with the Applicant’s contentions.  The purpose of the Comcare Scheme is to provide compensation and support in relation to the treatment of accepted injuries that resulted from injury suffered in the course of a person’s employment.

    CONCLUSION

13. For the purposes of section 16 of the SRC Act, the Tribunal finds that by 20 November 2018 the Applicant’s claimed ongoing psychological consultations could not be considered to be:

    (a)medical treatment in relation to her accepted injury, being somatisation disorder; or

    (b)medical treatment reasonable for the Applicant to obtain in the circumstances.

14. Accordingly, the reviewable decisions made on 4 September 2018 and 30 January 2019 are affirmed.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.................................[SGD]............................................

Associate

Dated: 1 April 2020

Date(s) of hearing:

9 October 2019

Applicant:

By phone

Counsel for the Respondent:

Solicitors for the Respondent:

Ms Kate Slack

Sparke Helmore