Cremona and Comcare (Compensation)

[2015] AATA 971

Cremona and Comcare (Compensation) [2015] AATA 971 (16 December 2015)

Division	GENERAL DIVISION
File Number(s)	2015/0178
Re	Maria Cremona
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Senior Member McCabe
Date	16 December 2015
Place	Brisbane

The decision under review is affirmed.

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Senior Member McCabe

Catchwords

WORKER’S COMPENSATION – somatization disorder – whether physiotherapy is compensable medical treatment – compensable treatment must have therapeutic purpose – physiotherapy not obtained in relation to the injury

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16

REASONS FOR DECISION

Senior Member McCabe

16 December 2015

1. Ms Maria Cremona had an accident at work in 1998. She sustained a number of physical injuries. Comcare accepted liability for those injuries under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Comcare subsequently accepted liability for a somatization disorder. In more recent times, Comcare has been paying for physiotherapy sessions pursuant to s 16 of the Act. In its reviewable decision dated 4 December 2014, Comcare confirmed it would not continue paying for physio sessions after 22 June 2015. The applicant has asked the Tribunal to review that determination.

2. Comcare says physiotherapy is not an appropriate treatment for a somatization disorder. Using the language of the Act, Comcare denies physiotherapy is a medical treatment in the circumstances of this case. It also denies the treatment was “obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances)”: s 16.

3. I am not satisfied physiotherapy is reasonable medical treatment for the purposes of the Act. It follows Ms Cremona cannot succeed. I explain my reasons below.

   What is medical treatment?

4. Comcare is not obliged to pay for every treatment demanded by an injured person. To begin with, s 16 refers to a liability to pay for medical treatment, as opposed to other forms of treatment or assistance. The expression medical treatment is defined in s 4. It includes “therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor…” [Emphasis added]. The requirement that the treatment in question must be therapeutic excludes treatments – including treatments provided by a physiotherapist – that do not have a therapeutic purpose.

   What ails Ms Cremona?

5. Ms Cremona experiences pain and other physical symptoms for which there is no clear organic cause. The medical evidence tends to suggest whatever physical damage she sustained in the 1998 accident has long since resolved: see, for example, the report of Dr Thomas Davis dated 3 February 1999 (exhibit one at pp 30-36). These days, she suffers from a somatization disorder, which is a psychiatric condition. (Dr Varghese, the consultant psychiatrist called by Comcare, questioned whether Ms Cremona also suffered from dysthymia. There is no evidence of any other serious medical problem, as opposed to psychiatric issues that may generate physical symptoms.)

6. Ms Cremona has received regular treatment at the hands of a physiotherapist over a long period. She says she needs that treatment to help her manage her body. She says regular physiotherapy treatment assisted her to build core strength and maintain balance and flexibility. She says physiotherapy sessions can sometimes yield short term relief from pain.

   What treatment options are available for a somatization disorder?

7. Dr Holt, the applicant’s treating psychologist, said the applicant required “multidisciplinary treatment”: exhibit 4. He said the applicant derives benefit from the physiotherapy: it helps her manage stress and addresses physical stability issues when she decompensates. Dr Persley, a consultant psychiatrist, offered a more nuanced view in his report dated 6 December 2015: exhibit 6. After recommending the applicant continue seeing her psychologist regularly, he noted the use of physical treatments “is a more vexed question”: [6.3]. He acknowledged physical treatments like massage can promote a sense of well-being but added they were “not necessarily ‘treatment’ for somatoform disorders.” He went on to explain he thought physical treatments like physiotherapy – especially where it involved hydrotherapy – might be useful “in the early stages of treating people with somatoform disorders”: [6.4].

8. Ms Cremona is not “in the early stages” of her treatment. She was diagnosed with a somatoform disorder in 1999 (exhibit 1 p 41) and has been receiving treatment – including physiotherapy – over a long period. It is unclear whether Dr Persley was aware of the extent or history of that treatment.

9. Dr Varghese, a consultant psychiatrist, provided a report on behalf of Comcare. The report is lengthy and contains a detailed discussion of Ms Cremona’s history, her health and the treatment of somatoform disorders. Dr Varghese opined that it would be inadvisable for Ms Cremona to continue physiotherapy. He said the ongoing administration of physical treatments tended to reinforce the somatoform disorder and made it harder to treat.

10. Ms Cremona was critical of Dr Varghese’s opinion, and she criticised Comcare for relying on it when she said many, many other voices told a different story. I disagree. Dr Varghese is a well-credentialed expert in the field of psychiatry. He gave a clear explanation for his view which was obviously developed on the basis of the careful history he took from the applicant when they met, and from an analysis of her medical records. His credentials and the fact he is independent mean he is in a better position to make an objective assessment of appropriate treatments for a psychiatric condition than the treating psychologist, Dr Holt. Dr Holt’s report was short and did not include a detailed or persuasive explanation of the reasons why physiotherapy was appropriate. Dr Persley’s report did contemplate physiotherapy as a possible treatment, but his opinion acknowledged it was a vexed question and suggested physical treatments were only appropriate at an early stage.

    Is physiotherapy reasonable medical treatment in this case?

11. Without needing to settle the “vexed question” of whether a physical treatment can ever be a treatment for a somatoform disorder, it is clear from the evidence of Dr Varghese that physiotherapy is not a treatment for what ails Ms Cremona in this case. I am not satisfied physiotherapy is medical treatment because, in particular, the opinion of Dr Varghese establishes it does not serve any therapeutic purpose in relation to the applicant’s somatoform disorder. It follows it cannot be said the treatment was “obtained in relation to the injury”.

12. I accept the applicant believes in that treatment and desires it. I also accept the sort of stretching, strengthening and stability exercises she was undertaking may be a good idea to assist with her general health and well-being. But none of that turns physiotherapy into a treatment for her psychiatric condition at this point.

13. Even if I accepted physiotherapy was a medical treatment in relation to the applicant’s work-related injury, I am not satisfied it would be reasonable for her to obtain it in the circumstances. The applicant thinks she needs it, and that it helps – but she acknowledges she only ever obtains temporary relief and there is limited evidence of any improvement in her condition following a long period of treatment. I note Ms Cremona’s treating physiotherapist, Ms Kim Bull, doubted whether the applicant would derive significant benefit from further sessions. Ms Bull said in her oral evidence and in her statement that Ms Cremona “should now be able to self-manage her condition”: exhibit 2. It would be difficult to justify the expense of continued treatments in those circumstances. But the evidence of Dr Varghese confirms the treatment is counterproductive. It cannot be reasonable for Ms Cremona to obtain treatment at Comcare’s expense when the most credible, well-informed expert available to me said it is counterproductive.

    Conclusion

14. The decision under review is affirmed. 

15.     I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 16 December 2015

Date of hearing

11 December 2015

Applicant

Ms M Cremona

Counsel for the Respondent

Solicitors for the Respondent

Ms K Blackford Slack

Sparke Helmore