Cremona and Comcare (Compensation)

Case [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…

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AGLC
Cremona and Comcare (Compensation) [2020] AATA 696
Case
[2020] AATA 696
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute between the Applicant and Comcare concerning the provision of compensation for psychological treatment. The Applicant had a long-standing workers' compensation claim stemming from a workplace injury in 1998, for which liability was accepted for various physical injuries and subsequently for Chronic Pain Disorder associated with psychological factors, later referred to as somatisation disorder. The core of the dispute involved Comcare's decision to cease liability for further psychological consultations provided by the Applicant's treating psychologist, Mr. Craig Holt, from November 2018 onwards.

The Tribunal was required to determine whether the psychological consultations sought by the Applicant from November 2018 were in relation to her accepted injury, somatisation disorder, and whether such treatment was reasonable in the circumstances under section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The Applicant contended that the treatment was beneficial and that ceasing it would merely lead her to seek similar support through other government-funded avenues. Comcare argued that if the Applicant was accessing treatment under other government-subsidised schemes and did not appear to require treatment with high frequency, then the treatment paid for by Comcare was not reasonable.

The Tribunal reasoned that for compensation to be accepted under section 16, the treatment must be directly related to the accepted injury. While Comcare had accepted liability for psychological treatment connected to the Applicant's injury for many years, the Tribunal's task was to assess the appropriateness of ongoing treatment from November 2018. The Tribunal noted that the Applicant's accepted injury, somatisation disorder, involves pain with a psychological origin, lacking a physiological basis. Evidence from Ms. Gierlicz and Dr. Varghese suggested that Mr. Holt's ongoing consultations provided psychological support rather than treatment directly related to the accepted injury. Although Mr. Holt's reports referred to the accepted injury, his view that the Applicant's pain symptoms were not purely psychological in origin raised questions about whether his treatment was truly in relation to or assisting the accepted injury.

Ultimately, the Tribunal concluded that from 20 November 2018, the Applicant's claimed ongoing psychological consultations could not be considered medical treatment in relation to her accepted injury, somatisation disorder, nor could they be deemed reasonable in the circumstances. Consequently, the Tribunal affirmed the reviewable decisions made by Comcare on 4 September 2018 and 30 January 2019, which revoked the determination to pay for these consultations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 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. 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. 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. 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. 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. 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. 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.

Evidence

Evidence Before The Court

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 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. 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. 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. 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. 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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. 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. 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.