Cremona and Comcare (Compensation)

[2017] AATA 1363

Cremona and Comcare (Compensation) [2017] AATA 1363 (25 August 2017)

Division:GENERAL DIVISION

File Number(s):      2015/6367

Re:Maria Cremona

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:25 August 2017

Place:Brisbane

The decision under review is affirmed.

...................[sgd]..............................................

Senior Member T. Tavoularis

CATCHWORDS

COMPENSATION – medical treatment – therapeutic treatments – previously accepted injury – where Applicant suffered from somatization disorder – where Applicant claimed physical treatments – whether treatments were “therapeutic” – whether treatments were reasonable in the circumstances – treatments were not “therapeutic” – treatments not reasonable in the circumstances – decision under review affirmed

PRACTICE AND PROCEDURE – where Applicant had a claim previously determined by the Tribunal – where current application pre-dated previous Tribunal decision – whether issues the same – whether there was a “good reason” to re-litigate the issues – re-litigation allowed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 16
Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 43

CASES

Alamos and Comcare

[2014] AATA 629

Chowdhary and Comcare

[1998] AATA 448
Comcare v Holt [2007] FCA 405
Comcare v Rope (2004) 135 FCR 443
Cremona and Comcare [2015] AATA 971

Durham and Comcare

[2014] AATA 753
Re Jorgensen and Commonwealth (1990) 23 ALD 321

Popovic and Comcare

[2000] AATA 264
Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80

SECONDARY MATERIALS

Clinical Framework for the Delivery of Health Services

REASONS FOR DECISION

Senior Member T. Tavoularis

25 August 2017

INTRODUCTION

1. Ms Maria Cremona (“the Applicant”) is seeking review of a decision by Comcare (“the Respondent”) dated 5 November 2015 that it was not liable to pay compensation to her under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) in relation to the following treatments for the Applicant’s accepted somatization disorder:

   (a)Physiotherapy;

   (b)Podiatry; and

   (c)Massage treatment.

2. These claims – and the Applicant’s condition – stem from an incident in 1998 where the Applicant injured herself in the workplace. Although her physical injuries from that incident healed, the Applicant has developed ongoing psychological injuries, which have not.

3. Importantly for present purposes, the Applicant has been diagnosed with somatization disorder,[1] which manifests itself in the Applicant feeling pain in her back, legs and hand.[2] The crucial thing to note about somatization disorders is that, although they usually take the form of pain of one kind or another, that pain is purely psychological in terms of its genesis: the pain people with somatization disorders suffer from is entirely lacking in a physiological basis. However, it is for this pain that the Applicant claims the physiotherapy, podiatry and massage treatments.

   [1] See e.g. Exhibit 1, T Documents, T 180, p 344.

   [2] Ibid, T 187, p 354.

4. Although it initially accepted liability to pay for, inter alia, physiotherapy for the Applicant, the Respondent empanelled a “Clinical Panel Review” to determine its ongoing liability to pay for that treatment. This Panel determined that the Respondent would pay the Applicant compensation for the cost of physiotherapy for her somatization disorder at a decreasing frequency until 22 June 2015, after which it would cease. This recommendation was upheld in a reviewable decision dated 4 December 2014.

5. The Applicant appealed that decision to the Tribunal, which handed down a decision affirming the decision under review on 16 December 2015 (“the 2015 Decision”).[3]

   [3] Cremona and Comcare [2015] AATA 971.

6. While her first Tribunal review process was ongoing, the Applicant lodged a medical certificate for compensation dated 3 August 2015 from Dr Powers with the Respondent.[4] Dr Powers recommended that the Applicant should receive compensation for podiatry, massage and physiotherapy in relation to her somatization disorder. The Respondent rejected liability for this on 21 August 2015. The Applicant reviewed that determination, which was affirmed on 5 November 2015.

   [4] Exhibit 1, T Documents, T 209, p 410.

7. On 8 December 2015, before the Tribunal made its decision relating to her earlier claim, the Applicant lodged another application with the Tribunal, this time to review the decision dated 5 November 2015. It is this application that the Tribunal is presently concerned with.

   RELEVANCE OF THE EARLIER TRIBUNAL DECISON

8. Before determining whether the Respondent is liable to the Applicant under s 16 of the Act for the claim of the Applicant, I must determine the relevance of the earlier Tribunal decision.

9. As noted above, this is not the first time the Applicant has appealed to the Tribunal a decision of the Respondent. In the 2015 Decision (which was, importantly, made after the Applicant lodged her present claim), the Tribunal found that the Respondent was not liable to pay for the Applicant’s physiotherapy after 22 June 2015.[5] Essentially, the Tribunal was “not satisfied physiotherapy is reasonable medical treatment for the purposes of the Act” (emphasis in the original).[6]

   [5] Cremona and Comcare [2015] AATA 971.

   [6] Ibid, [3].

10. The present question is what impact does that decision, made some eight days after the Applicant lodged the present application for review, have on the Applicant’s present claim?

11. The Respondent’s stance in the present matter is thus:

    Comcare also relies on the earlier findings of the Tribunal in Cremona and Comcare [2015] AATA 971 in relation to the claimed physiotherapy. There has been no material change in circumstances or significant new evidence impacting the determinative issues which were previously disentitling to provide any cogent basis to depart from the findings in that earlier decision.

12. As I understand it, this argument does not clearly raise a point of issue estoppel, or a request for the Tribunal to use its power under s 33(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to prevent the re-litigation of this issue. It is, to my mind, not so much a contention as a reminder that the 2015 Decision should be considered highly persuasive by the presently-constituted Tribunal.

13. Ultimately, I cannot determine that any issue estoppel or other power to prevent re-litigation should be enlivened in this case, for three core reasons:

    (a)The present application deals with an altogether different decision to that which was affirmed in the 2015 Decision. The regime with respect to accepting liability for treatments under the Act is by its nature ongoing and the fact that liability is rejected for one course of treatment does not preclude a person from trying to claim that treatment in the future. If someone can claim the treatment, then it stands to reason that they can also appeal the rejection of that claim, as the Applicant has here.

    (b)The present application was made before the publication of the 2015 Decision. Under s 43(5A) of the AAT Act, the Tribunal’s decision only comes into force once it has been made. It is a prerequisite for any issue estoppel or s 33(1)(a) re-litigation power that the issue at stake in the present proceedings be the same as one previously determined in a decision of the Tribunal. At the time the Applicant lodged her application with the Tribunal, then, the issue she sought to raise in the present proceedings had not yet been determined. Consequently, it was open for her to try and claim compensation again under s 16 of the Act, and open for her to appeal against that decision.

    (c)In any event, the Respondent has not, from my reading of its submissions, sought to raise a contention that the Applicant should be prevented from re-litigating her case. As submissions were not made on this point, it should not be taken any further.

14. While the Tribunal lacks a reason to prevent any issues determined in the 2015 Decision from being re-litigated, it does not necessarily follow that the Tribunal’s previous decision should be given no weight. I consider that the proper reading of the Respondent’s arguments is that the 2015 Decision should be given substantial weight in the fresh determination of these issues. If that is indeed their submission, it is well-made.

15. The Full Federal Court in Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80 determined that:

    …the Tribunal may have regard to findings of fact made between the same parties in earlier proceedings before the same or a differently constituted Tribunal. Although a tribunal may not be bound to make the same findings of fact, findings previously made – especially after a contested hearing – may appropriately be adopted in subsequent proceedings…[7]

    [7] Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80, [27].

16. Consequently, the Tribunal can have regard to the findings of fact made by the Tribunal in the 2015 Decision, even if I am not bound by those findings. I note this seems to reflect the Tribunal’s power under s 33(1)(c) of the AAT Act to “inform itself on any matter in such a manner as it thinks appropriate”.

17. I will now progress to determining the merits of the Applicant’s claim.

    IS THE RESPONDENT LIABLE TO COMPENSATE THE APPLICANT FOR THE COSTS OF HER PHYSIOTHERAPY, MASSAGE AND PODIATRY?

    Statutory Framework

18. Liability of the Respondent to compensate the Applicant for the costs of any of her treatments must be determined in accordance with s 16(1) of the Act, which reads:

    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.

19. Section 4 of the Act, in turn, defines “medical treatment” as:

    …

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

    …

    (d)therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or

    …

    (i)any other form of treatment that is prescribed for the purposes of this definition.

20. “Therapeutic treatment”, meanwhile, “includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury”.

21. It is apparent that s 16 of the Act imposes a test that has both subjective and objective elements: one must determine whether the treatment is objectively reasonable given the subjective circumstances of an applicant’s injury. I hasten to add that the subjective element only applies to the state of the injury itself, not to, for instance, the state of the applicant’s personal life.[8]

    [8] Re Jorgensen and Commonwealth (1990) 23 ALD 321, 325 (Gray J).

22. In determining the objective reasonableness of a treatment or course of treatment, the Tribunal is often tasked with, essentially, balancing the long-term benefit of the treatment against its cost.[9] Due to the very nature of the test, the list of factors the Tribunal may take into account in making this assessment varies. In Alamos and Comcare,[10] Deputy President Constance considered the following factors as a helpful, non-exhaustive list:

    ·the benefit of the treatment to the injured worker;

    ·the long-term effects of the treatment;

    ·whether the treatment is likely to cure the injury or significantly reduce its effects;

    ·whether the treatment maintains the status quo;

    ·the cost of ongoing treatment.[11]

    [9] Comcare v Rope (2004) 135 FCR 443, 448 (Stone J).

    [10] [2014] AATA 629.

    [11] Alamos and Comcare [2014] AATA 629, [24] (DP Constance).

23. In a similar vein, Mansfield J in Comcare v Holt gave examples of some circumstances where the treatment would be unreasonable, which included:[12]

    ·“where treatment is unreasonable because its anticipated therapeutic benefit does not justify the expense involved in the circumstances”;

    · “where proposed treatment, although of therapeutic benefit, is unreasonable having regard to the extent of the anticipated benefit of the cost involved, even if no similar treatment had previously been undertaken”; and

    ·“where treatment like the proposed treatment which in the past has had some therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of past experience”.

    [12] Comcare v Holt [2007] FCA 405, [25]-[26].

24. This long-term perspective is particularly important when one considers the potential long-term dependency of applicants upon treatments that were only ever meant to be temporary, as the Tribunal noted in Popovic and Comcare.[13]

    [13] [2000] AATA 264, [28]-[29].

25. This notion of shifting reasonableness is supported by the Tribunal’s decision in Chowdhary and Comcare,[14] where it found that:

    “While provision of temporary relief from pain through physiotherapy will in many circumstances qualify as medical treatment which it is reasonable for an employee to obtain, there will in some cases come a point where it is no longer reasonable unless it is part of a plan for permanent improvement in the health of the employee”.[15]

    [14] [1998] AATA 448.

    [15] Chowdhary and Comcare [1998] AATA 448, [53].

26. In making these assessments, it is often of great assistance to the Tribunal to make reference to the Clinical Framework for the Delivery of Health Services (“the Clinical Framework”).[16] Although this document was neither compiled by the Commonwealth Government, nor representative of Commonwealth policy, it provides useful guiding principles for the delivery of health services. I note that the Respondent referenced this in its Statement of Facts, Issues and Contentions (“SFIC”).[17]

    [16] See e.g. Alamos and Comcare [2014] AATA 629, [32]-[33]; and Durham and Comcare [2014] AATA 753 (SM Ettinger), [56]-[58].

    [17] Exhibit 2, Respondent’s SFIC, [66]-[67].

27. The Clinical Framework lists the guiding principles as:

    ·Measure and demonstrate the effectiveness of treatment

    ·Adopt a biopsychosocial approach

    ·Empower the injured person to manage their injury

    ·Implement goals focused on optimising function, participation and return to work

    ·Base treatments on the best available research evidence.

28. Particularly relevant in considerations such as this is point 3, “Empower the injured person to manage their injury”. The Clinical Framework later elaborates on this point:

    The key measure of treatment effectiveness is the ability of the injured person to manage their condition as independently as possible and participate in activities at home, in the community and at work. Independence does not mean being symptom-free, but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependency on treatment, which reinforces illness behaviour and can lead to persistent pain or long-term disability.

    Are the Treatments “Therapeutic Treatment”?

29. As a preliminary matter, whilst she has not previously raised the point of needing podiatry, I have heard no expert evidence as to why that is the case or which of the Applicant’s injuries it relates to. I accept the Respondent’s submission that it should be treated in the same manner as her other physical forms of treatments.

30. The first question the Tribunal is faced with is whether or not the treatments the Applicant seeks can constitute “therapeutic treatment”. The Respondent contends that they are not.

31. Section 4 of the Act defines a “therapeutic treatment” as including “an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury”. Plainly, physiotherapy, podiatry and massage therapy are not examinations, tests or analyses done for the purpose of diagnosing an injury. If the Applicant’s treatments are to be “therapeutic treatment”, then, they must be “treatment given for the purpose of alleviating, an injury”.

32. As noted above, the injury for which the Applicant seeks these treatments is not a physical one. Rather, it is her somatization disorder. Thus, any treatment she receives, if it is to constitute “therapeutic treatment”, must be given for the purpose of alleviating that injury.

33. The problem the Applicant runs into here is the same problem she ran into in her previous cases before the Tribunal – there are serious questions as to whether physical treatments can serve to alleviate somatization disorder, particularly where a person has been suffering from it for a number of years.

34. Associate Professor Frank Varghese, a Consultant Psychiatrist, noted in a report dated 14 October 2015 that:

    A patient with Somatisation Disorder does not require long term physiotherapy. Physiotherapy is only required where there is a diagnosable physical problem. Long term physiotherapy in the absence of any physical problem or any physical problem having resolved, will have the effect of merely reinforcing the somatisation and the cognitive mindset that seems a somatic i.e. physical solution to what is not a physical problem.

    …

    In Ms Cremona’s case I suspect that her desire for physiotherapy has a two-fold meaning. In the first place it confirms a physical explanation for her problems when there is none and perhaps more importantly it is a way of engaging in a human relationship when she is in a situation of social isolation.

    …

    I do not recommend ongoing physiotherapy treatment on the grounds that this merely reinforces the somatisation and there is no other indication, assuming that there is no underlying physical injury.

35. In a further report dated 22 April 2016, Associate Professor Varghese made the same points with respect to podiatry and massage therapy – neither treatment serves the purpose of alleviating the somatization disorder from which the Applicant suffers.

36. A medical report from Dr Peter Dodd, an orthopaedic surgeon, dated 30 March 2016, was tendered by the Applicant. Dr Dodd accepted that the Applicant’s symptoms were classified as somatization, and noted that it was a “waste of time” for her to continue pursuing the Respondent for physiotherapy. While Dr Dodd did not elucidate why this was the case, it seems this is because he did not consider the Applicant would satisfy the relevant legislative test.

37. I have also had reference to a report by Mr Craig Holt, a consulting psychologist, dated 5 February 2015.[18] Mr Holt noted that the Applicant “benefits from ongoing physiotherapy”.[19] In a report dated 6 August 2015, Mr Holt further noted that the Applicant’s “access to other treatments, particularly medical and physiological treatments, assists with her psychological recovery.”[20] I note that Mr Holt’s reports only included mention of physiological treatments at the same time as they began mentioning the Applicant’s appeal before the Tribunal.

    [18] Exhibit 1, T Documents, T 203, p 390.

    [19] Ibid.

    [20] Ibid, T 210, p 412.

38. The Applicant’s treating General Practitioner, Dr James Powers, also seems certain that she needs to continue with physiotherapy and other physical treatments. Since at least March 2012, Dr Powers has recommended to the Respondent that the Applicant receive physical treatments, including massage and physiotherapy.[21] Indeed, it is one such recommendation in the present case that led to the decision by the Respondent which is the subject matter of the present appeal.

    [21] Ibid, T 172, pp 329-330; T 181, pp 346-347;

39. In the 2015 Decision, the Tribunal not only had references to Mr Holt’s reports, but also a report of a Dr Persley, consultant psychiatrist, dated 6 December 2015. Dr Persley noted that although physical treatments may promote a sense of well-being, they are “not necessarily ‘treatment’ for somatoform disorders”.[22]

    [22] As quoted in Cremona and Comcare [2015] AATA 971, [7].

1. The issue for me now is how to weigh these competing medical opinions which all go to whether a physiological treatment can actually contribute to “alleviating” the Applicant’s psychological injury.

2. On balance of the above, I have great difficulty in concluding that, especially after nearly 20 years and hundreds of treatments, the physiological treatments the Applicant is seeking compensation for actually serve to alleviate her psychological illness, somatization disorder. Rather, I accept the view of Associate Professor Varghese and Dr Persley – neither physiotherapy, massage nor podiatry is likely to actually alleviate the Applicant’s somatization disorder, as neither goes to its actual cause, a psychological injury.

3. Consequently, I am of the view that the Applicant’s treatments, namely physiotherapy, massage and podiatry, do not meet the threshold for “therapeutic treatment” under s 4 of the Act.

   In Any Event, Is the Treatment Reasonable for the Applicant to Obtain in the circumstances?

4. The Applicant may claim that these treatments fit point (i) of the definition for “medical treatment” in the Act, namely that they are “any other form of treatment that is prescribed for the purposes of this definition.” I doubt that is the case, but for completeness, I will now turn to addressing whether the treatment is reasonable for the Applicant to obtain in the circumstances.

5. The determination of whether the treatment is reasonable for the Applicant to obtain in the circumstances requires consideration of several competing factors: essentially, the long-term benefit to the Applicant of maintaining the course of treatment, whether the Applicant is likely to become dependent on the treatment, and its cost.

6. In a Clinical Panel Review dated 18 August 2014, it was reported that, when the Applicant was receiving physical treatment twice per week, her “condition was improving very, very slowly”. Indeed, “her functional measures and outcome measures had not changed much at all over a long time”.[23] The Applicant’s physiotherapist, Ms Kim Bull, agreed with this observation. Clearly, there is little, if any, physiological benefit to the Applicant receiving this physical treatment.

   [23] Exhibit 1, T Documents, T 196, p 375.

7. Although Mr Holt has stated he considers the physical treatment to be of benefit to the Applicant,[24]  I do not agree. It has now been more than 19 years since the Applicant first suffered her workplace injury. The list of treatments she received until November 2015 runs some 113 pages long.[25] Over this time, she has received compensation for hundreds of massage and physiotherapy sessions, yet there has been no discernible improvement in her state. I have seen no evidence as to why treatment into the future will change this. I therefore find that there will be little or no benefit to the Applicant in receiving physical treatments of any kind.

   [24] Ibid, T 203, p 390

   [25] Ibid, T 222, pp 438-551.

8. I do, however, consider that there may be a long-term detriment in the Applicant receiving this treatment. On balance of the medical evidence before me, particularly the very detailed reports of Associate Professor Varghese, I am inclined to accept his finding that continued physical therapy is likely to further entrench the Applicant’s somatization disorder – the injury she is nominally seeking treatment for.[26]

   [26] See e.g. Exhibit 7, Report of Dr Varghese dated 14 October 2015.

9. Even if I were not to accept the finding that the Applicant’s psychological injury would be further entrenched, I do consider that continued reliance on various physical treatments for her ailments is likely (and indeed has) led to the Applicant becoming dependent upon it. The finding that the Applicant is already emotionally reliant on her physiotherapy and massage in particular is congruent (albeit not explicitly) with Mr Holt’s statement that such treatment was of some assistance to her psychological recovery.

10. While there is no doubt that the Applicant suffers some severe mental health issues, I find that the continued reliance on physical treatments for them will prevent her from truly engaging in their root cause. I accept that these treatments can be of some use in the short term, but it is clear to me that any benefit they may have brought is lost if the treatment continues over the medium or long-term. It appears that the Applicant has, for nearly 20 years, been using physical treatments as a crutch, to the stage where she is now quite dependent upon them. I therefore find that there is a significant long-term harm to the Applicant receiving physical treatments for her psychological issues, be they in the form of physiotherapy, massage or podiatry.

11. The final factor to weigh is the cost of the treatments. The Respondent estimated that the Applicant had undergone some 324 physiotherapy sessions and 573 massage sessions for which she claimed compensation until August 2014.[27] The cost of any one of these sessions seems to range from $40-$70.[28] Even assuming the Applicant does not seek physiotherapy or massage at the, frankly, profligate rate she previously has, it is clear that the long-term cost of her treatment would be great.

    [27] Exhibit 8, Respondent’s further letter of instructions to Dr Varghese dated 4 September 2016, [2.20].

    [28] Exhibit 1, T Documents, T 222.

12. In weighing up these factors, it is clear the best case for the Applicant is that she would get a minor benefit from continuing treatment into the long term, for a cost of between $40-$70 per session, around once per week. The truth, however, is that the physical treatment the Applicant seeks is actively setting her recovery back, and has already reached a stage where the Applicant is dependent upon it, at some cost to the Respondent (and thus to the Australian taxpayer). Consequently, I find that massage, physiotherapy and podiatry are not reasonable treatments for the Applicant in her circumstances.

    CONCLUSION

13. The Applicant’s treatments neither meet the threshold to be “therapeutic treatment” nor that of being reasonable treatment in her circumstances. Consequently, the Respondent is not liable under s 16 of the Act to compensate the Applicant for her physiotherapy, massage or podiatry treatments.

14. The decision under review is affirmed.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

.......................[sgd]...........................................

Associate

Dated: 25 August 2017

Date(s) of hearing:	24 April 2017
Applicant:	In person
Counsel for the Respondent:	Ms Kate Slack
Advocate for the Respondent:	Mr Matthew Hawker
Solicitors for the Respondent:	Sparke Helmore