Cruise and Comcare
[2006] AATA 263
•20 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 263
ADMINISTRATIVE APPEALS TRIBUNAL ) No. N2005/574
) No. N2005/861
GENERAL ADMINISTRATIVE DIVISION ) Re PATRICIA CRUISE Applicant
And
COMCARE
Respondent
DECISION
Tribunal R Hunt, Senior Member
Dr J Campbell, MemberDate20 March 2006
PlaceSydney
Decision The decisions before the Tribunal are affirmed. [Sgd] Ms Robin Hunt
Presiding Member
CATCHWORDS
WORKERS COMPENSATION – Claims for injury at work – Extensive physiotherapy treatments - No present condition arising out of or in the course of employment – No entitlement to medical expenses – No incapacity – Ergonomic chair for home use not legitimate claim – Decisions affirmed.
legislation
Comcare Table 9.6
Safety, Rehabilitation and Compensation Act 1988, ss 4, 16, 19, 39.
cases
Bradford and Comcare Australia (1994) 37 ALD 187
Chowdhury v Comcare, (AAT 13003, 22 June 1988)
Comcare v Watson (1997) 73 FCR 273
Re Jorgenson and Commonwealth (1990) 23 ALD 321
Popovic and Compare [2000] AATA 264
Thiele v Commonwealth (1990) 95 ALR 172
REASONS FOR DECISION
20 March 2006
SUMMARY
1. The applicant, Ms Patricia Cruise, sought review of decisions concerning her claims in respect of back and neck pain for which she had undergone extensive physiotherapy. Ms Cruise and Comcare in 1999 agreed to settlement of Ms Cruise’s claim for a neck injury. Ms Cruise subsequently made two further claims against Comcare and Comcare denied liability for those claims. The first reviewable decision of which Ms Cruise sought Tribunal review concerned the cost of physiotherapy after Comcare decided to stop paying for further treatment as at 3 December 2004. The second claim was in relation to Comcare’s refusal to pay for an ergonomic chair for Ms Cruise’s use at home. The tribunal decided that Ms Cruise currently does not suffer from any condition that is work related and is therefore not entitled to payment of further medical expenses. The tribunal also decided Ms Cruise is not entitled to payment for the ergonomic chair which she uses at home. This means Ms Cruise has been unsuccessful. The reasons for the tribunal’s decision are set out below.
BACKGROUND
2. In matter number N2005/574, Ms Cruise sought review of a decision rejecting her claim for re-imbursement of the cost of an ergonomic chair for her use at home. By reviewable decision dated 16 March 2005, a determination of 26 August 2004 was affirmed, disallowing the claim for the chair under both ss 16 and 39 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
3. In matter number N2005/861, Ms Cruise sought review of the decision to reject her claim for the cost of medical treatment, specifically physiotherapy, and to reject her claim for compensation for “incapacity benefits”. The reviewable decision of 26 April 2005 determined that, as at 3 December 2004, Ms Cruise no longer was entitled under s 16 to compensation, being physiotherapy treatment, nor to incapacity benefits under s 19 for the claimed injury.
ISSUES
4. In respect to the physiotherapy expenses claimed, the issues for the tribunal were three:
· Whether Ms Cruise continued to suffer from the effects of an injury on 1 January 1986, being an injury to her neck, right arm and upper back, and continued to suffer from the effects of the nature and extent of her work thereafter;
· Whether, as at 3 December 2004, the injury resulted in an incapacity for work and, further, whether the injury resulted in a continuing requirement for medical treatment; and
· Whether Ms Cruise was entitled to compensation for incapacity in respect of the injury as at 3 December 2004.
5. In respect to the ergonomic chair, the issue for the tribunal was whether Ms Cruise was entitled to compensation to cover the cost of the chair.
ANALYSIS AND FINDINGS
6. Ms Cruise has a history of neck pain and other back and shoulder problems. She refers in her signed statement of 8 July 2004 to having been diagnosed with spondylolisthesis of the spine in Europe some years after a motor bike accident in the late 1970s. She sought no medical help after the accident but did see a doctor a few years later when camping in Europe at an undisclosed date and was admitted to hospital but left before surgery was carried out. Later medical reports before the tribunal also refer to the presence of spondylolisthesis. Comcare previously accepted her claim for compensation for “aggravation of unspecified injury to shoulder and upper arm (right)”. Then, an independent review officer made the reviewable decision of 26 April 2005 that Comcare was no longer liable to pay compensation in the form of physiotherapy treatments nor to pay incapacity benefits for the accepted condition. Comcare considered Ms Cruise’s current problems were a consequence of degenerative change consistent with her age. Ms Cruise continued to work for the Department of Immigration and Multicultural Affairs (DIMA).
7. Ms Cruise told the tribunal she has no particular problems at work apart from the use of a computer mouse. Ms Cruise told the tribunal she had neck problems, shoulder problems and upper back problems. She also complained of muscle spasms. She gave evidence to the effect that she started to experience pain in her right shoulder in 1986 while doing very repetitive work for long hours for several days. Her work involved using a calculator and moving back and forth to change amounts in a budget. She suffered pain in her right shoulder and neck. The pain went away but returned intermittently. She underwent physiotherapy. After moving to a job in Canberra, she found the neck pain was becoming “pretty well permanent”. She sought physiotherapy again and had an x-ray of her neck. Ms Cruise said these problems became more pronounced in 1992. Ms Cruise said she returned to Sydney in 1993 and was doing a lot of work interviewing asylum seekers and typing up the interview reports. Ms Cruise said this meant she was moving to the right and back again to check the tape and the right side of her neck became stiff. In 1995, she took up a new management job involving interpreting and translation services and said that she suffered a lot less pain during this time. She took off about three weeks in 1997 then, at the beginning of 1998, went to another job that involved more computer work and use of the mouse. About 18 months later, Ms Cruise said she moved again into a more high pressure position.
8. Ms Cruise told the tribunal that her symptoms became very bad and, around 1999 and 2000, she started taking “bits of leave” so that the symptoms would ease. Ms Cruise said she started to go to physiotherapy “pretty well every week” or twice a week and that this treatment was paid for by Comcare. While Ms Cruise found physiotherapy helped, she went back to the computer each time, and the symptoms continued. In 2003, Ms Cruise said that she came back from a month’s leave and, on the second day, the thoracic pain was as bad as it had ever been. Ms Cruise described the pain as building up all day in the neck and shoulders with the thoracic pain sometimes becoming so severe as to stop her from working.
9. Ms Cruise continued with regular treatment by physiotherapists. One physiotherapist told her that she had seen a similar problem before and that it was caused by use of the mouse. Ms Cruise said she held out to the end of the year and then took leave. She returned on a graduated return to work program. She said she had convinced people involved she needed something other than a right-handed mouse and was issued with a different type of mouse. She described this as looking like a keyboard with the cursor control in the middle. She still found this instrument hard to use. She gave evidence that it caused her to move her head up and down until her neck seized up. She told the tribunal she looked up and down because she had to look at the control. She thought she might have got used to not looking after a few months. She said this instrument aggravated her neck quite badly. Ms Cruise said she believed the new mouse was a major contributor to her thoracic pain. She also thought it contributed to her neck pain in some way.
10. Ms Cruise said she was very fit and thought she had good posture at her computer and generally. Ms Cruise also spoke about how she kept fit with exercise, swimming and walking. She gave evidence that she had a 20 minute walk to and from her home to the bus stop before and after work and did other walking as well. She said she swam a distance of one and a half to two kilometres four or five times a week. Ms Cruise presented as a physically fit person. She further told the tribunal she practised Feldenkrais techniques every afternoon at work. She went to a small office where she could close the door and do some exercises for about 20 minutes to ease stiffness in the upper spine.
11. Ms Cruise also drew attention to an article from a newsletter of “Ergoworks”, written by her physiotherapist, Ms Joanna Kelton. Ms Cruise expressed the opinion that physiotherapists understood her injuries better than the doctors she had seen. In her letter to the tribunal dated 23 January 2006, Ms Cruise wrote that the article “provides useful information for the lay person on computer-related soft tissue injuries such as mine” and that it should be read in conjunction with Ms Kelton’s assessment report on her injuries, dated 25 August 2004. In her report, Ms Kelton wrote she believed Ms Cruise’s pain stemmed from an overuse injury related to computer use, especially keyboard and mouse use, and that the injury may have been sustained over a period. Ms Skelton stated that further physiotherapy was required to manage the current symptoms and to progress the movement and strength capabilities of Ms Cruise. Ms Kelton expected a further reduction in symptoms and increased capacity, although not to full time computer duties.
12. In response to questions, Ms Cruise gave evidence that she had purchased an ergonomic chair which she used at home. She did not use her ergonomic chair at home for work purposes and did not need to work on a computer at home for her employer. Ms Cruise agreed with the observation of Dr Anne Charteris, made in a letter dated 9 March 2004, that her pain was increased by sitting unsupported for more than 10 minutes whether or not she was using the computer. Dr Charteris expressed the opinion that Ms Cruise would benefit from having the ergonomic chair at home. Dr David Crocker also thought she would receive some benefit from a special chair.
13. Dr Joan Chen also saw Ms Cruise on 8 October and 3 November 2003. Dr Chen reported that Ms Cruise was unable to sit for extended periods on a chair without back support due to low back pain. However, Dr Chen wrote, on 24 November 2004, that the chair did not, in her opinion, represent specific equipment required for her rehabilitation or treatment, particularly if it was to be used at home. Ms Cruise told the tribunal that she had been provided with the same chair at work and found it so comfortable that she decided she would like to have one at home as well. She gave further evidence that she experienced progressive pain in the neck and shoulders during the day whether or not she was at work.
14. On 20 February 2004, Ms Cruise wrote to the claims management centre at Comcare that “the health professionals who were best informed about her injuries” were the physiotherapists and the Feldenkrais therapist who had treated her. She wrote that she had “no confidence” in the medical consultants to whom Comcare had referred her, saying the first medical practitioner was incompetent and also criticising Dr Chen. She went on to say that the rehabilitation program had been a failure and her pain had returned to the level of severity she was experiencing when she went on leave the previous year. She also asked about approval for referral to a rehabilitation physician, Dr David Crocker, as recommended by her GP, Dr Anne Charteris.
15. Comcare referred her to Dr Crocker as she requested. Dr Crocker subsequently saw Ms Cruise and provided reports dated 8 March 2004 and 26 March 2004. The later report was furnished to Comcare in reply to a request about the ergonomic chair Ms Cruise was using at home and for which she was asking Comcare to reimburse her. Dr Crocker wrote that “it would seem that she has gained symptomatic benefit from this”. In his second report, Dr Crocker advised that he discussed various treatment options including pain management counselling and use of Tryptanol or similar medication for pain management. He noted that Dr Charteris had earlier raised the pain clinic option but that Ms Cruise “did not appear keen to look at these other options”. On 28 April 2004, Ms Cruise wrote to Comcare, “I do not need referral to any more doctors”. Ms Cruise also wrote to Dr Crocker on 26 March 2004. Ms Cruise objected to the contents and circulation of Dr Crocker’s report following the examination on 8 March 2004. She wrote that she objected strongly “to your speculating about adverse psychological factors” and “fear avoidance behaviours”. She further wrote, “I am aware from my own case and from other cases of computer related problems that few people apart from physiotherapists have any clear idea of the causes and extent of the physical injuries”.
16. On another occasion, Ms Cruise wrote to Comcare complaining about the next doctor to whom they referred her, Dr Hall. Ms Cruise wrote “Dr Hall’s lack of expertise and apparent disbelief in RSI problems and extremely biased assessment enabling him to reach the facile unsatisfactory and plainly wrong diagnosis of chronic pain syndrome”. Dr Hall in his report date 14 September 2004 held that it was not clear from what condition Ms Cruise suffered and found her pain was of undetermined origin. He found no significant abnormal findings clinically or radiologically and no neurological abnormalities. He notes that a “diagnostic label would be chronic pain syndrome”. He found the cause of her condition obscure and he considered her fit to undertake a rehabilitation program. He observed that Ms Cruise was resistant to a pain management program although he thought it the most productive approach and had been suggested by other professionals.
17. Further, as to Ms Cruise’s attitude to pain management, Comcare’s counsel drew attention to the clinical notes of her GP, Dr Charteris, where she made a notation after an entry about Dr Chen’s opinion. The note read: “Pat refused to see a counsellor”. Ms Cruise gave evidence that she did not remember this being brought up. Ms Cruise also gave evidence concerning a reference in Dr Charteris’s notes that Ms Cruise asked her for a sickness certificate in circumstances in which Dr Charteris noted would amount to fraud had she issued the certificate requested. Ms Cruise remembered Dr Charteris telling her that she could not issue a certificate as she did not have a significant deterioration and that it would be unethical for her to issue a certificate. Ms Cruise said she accepted this response to her request.
18. Ms Cruise also told the tribunal that the suggestion from her rehabilitation provider, Ms Julie Clark, that she stopped seeing her Feldenkrais practitioner because she was going to do a workplace assessment was just nonsense. She agreed that she did want Ms Clark removed from her case and gave evidence that this was because Ms Clark did not consult with the physiotherapist.
19. Ms Cruise has seen a number of doctors and physiotherapists. Dr Richard A Evans saw Ms Cruise on 26 July 2004 and provided a report to a firm of solicitors about her neck pain. Dr Evans noted that Ms Cruise was not working at the time and found hers a “most unusual case”. Her noted neck movements were mildly reduced and that movements of the shoulders were normal and pain free. He reported about her back briefly but said he examined her back only because Ms Cruise’s physiotherapist had told her she had scoliosis caused by her work. He examined x-rays of the back and observed that the obvious next step was to have an MRI scan in the face of an “odd situation”. He wrote, under discussion of Ms Cruise’s fitness, that it would be hard to sustain a statement to the effect that she was physically unfit for her present job. He wrote that the case of the neck pain remained obscure. His prognosis was that Ms Cruise would continue to experience neck discomfort. He assessed Ms Cruise’s permanent whole person impairment at 5% (minor restrictions of movement) according to Comcare Table 9.6.
20. Ms Cruise was seen as well by Dr Graham Hall, Occupational Physician, and by James Bodel, Orthopaedic Surgeon, and by Dr Neil William McGill, Consultant Rheumatologist. Ms Cruise was unhappy with all of these doctors and preferred the opinion of her physiotherapist, Ms Joanna Kelton. Ms Cruise provided a written critique of the report and opinion of Dr McGill, whose evidence is discussed later in these reasons. Ms Cruise gave oral evidence to the effect that the doctors she saw did little to help her and did not understand how to treat her pain. She told the tribunal that she had her own pain management program and “could not get any better result from going to a formal pain management program than what I achieve on my own.”
21. Dr Neil William McGill, consultant rheumatologist, saw Ms Cruise and furnished reports on 4 August 1998 and more recently on 15 July 2005. Dr McGill changed his view about Ms Cruise’s condition after seeing her in 2005. Initially, he thought Ms Cruise had some degenerative changes in her cervical spine, being the underlying cause of her neck symptoms, with some possible contributing work-related muscle tension.. Dr McGill told the tribunal he now thought, after his further investigations, that Ms Cruise did not continue to suffer the effects either of the work she was doing back in 1986, when her symptoms first arose, or her work duties at other times since. He thought Ms Cruise had no current condition related to her work.
22. Dr McGill explained that, when he first saw Ms Cruise it seemed reasonable to conclude that temporary symptoms occurred while she was at work and for a short period afterwards. When he saw her again in 2005, the symptoms were much more widespread. Even though she had periods of working less, he found Ms Cruise had actually deteriorated. The persistence of the symptoms and the spread of the symptoms Dr McGill thought were not in keeping with a relationship to physical activity, work-related or otherwise.
23. Ms Cruise cross-examined Dr McGill and sought his responses to her own opinions as to the cause of her condition. Dr McGill did not agree with Ms Cruise’s suggestion that her problems were “a functional scoliosis due to right-handedness, over-use, primarily with a computer mouse”. He noted that when he examined Ms Cruise’s back, he did not see any significant scoliosis. He observed that most people do not have absolutely straight spines and that the scoliosis needs to be of a reasonable number of degrees to have any significance. Someone sitting in a normal posture while using a computer mouse would not be expected to develop curvature of the spine form this activity. Dr McGill gave evidence that Ms Cruise’s physiotherapist, Ms Kelton, was wrong in saying there was an increase in presentation of symptoms associated with computer use. The Repetitive Strain Injury (RSI) “epidemic” had reached its peak a number of years ago and had markedly declined. Dr McGill said he saw about 15 people a week with soft tissue problems and that only a very small proportion of those people attributed their problems to use of a computer. However, he said he was very familiar with that presentation.
24. Dr McGill also gave evidence that he had read Ms Cruise’s critique of his examination and report and he commented upon it. He noted that Ms Cruise criticised his examination of her neck and his finding that her neck movements were markedly discrepant on the second examination. He did not retract any of his findings. He emphasised that, when he suggested Ms Cruise suffered possible anxiety depression, he did not attempt an in-depth assessment, as he was not a psychiatrist and, for that reason, he used the word “possible”. He found no objective abnormality and no evidence of any physical disorder that would prevent her from performing her normal work duties. As he could not provide a diagnosis of her symptoms, he agreed with Dr Evans that consideration of the possibility of anxiety depression was warranted even though Ms Cruise denied feeling depressed.
25. In rejecting Ms Cruise’s opinion that she was suffering joint inflammation, Dr McGill gave evidence that he found no signs of such inflammation nor any pattern of the symptoms of joint inflammation. As to Ms Cruise’s reference to “a raised and inward turning right shoulder”, which she thought was caused by curvature and rotation in her thoracic spine, Dr McGill said he found nothing of that nature and that Ms Cruise did not have a curvature of her thoracic spine which would cause any interference with normal shoulder function. Ms Cruise had made reference, during her evidence, to multifocal spectacles and possible effects on her posture. Dr McGill responded to a question about spectacles by saying that the use of spectacles should not result in uncomfortable posture and that, if it did, some modification to the work set up should be made.
26. Ms Cruise suggested that she had inflamed joints as a result of immobilisation due to muscle spasms and Dr McGill responded that inflammation was not caused by immobilisation of the joint. As well, he explained that functional scoliosis might be caused by distortion due to a stroke and not by the sort of muscle tension which Ms Cruise described as occurring in her case. He gave evidence that Ms Cruise’s perception that she suffered inflammation of the joints from muscle tension and spasm was outside mainstream rheumatological thought and physiotherapy as well. Dr McGill said he was not out of touch with physiotherapists’ views. He gave evidence of cross-fertilisation of both disciplines at combined national and international meetings and that he was aware that Ms Cruise’s concept was not accepted by the mainstream and did not have validity. Dr McGill said mainstream physiotherapy was not at a tangent from medical rheumatology. He suggested that Ms Cruise was misinformed through no fault of her own. Ms Cruise made it plain that she disagreed with Dr McGill’s assessment and continued to believe that she suffered a work-related physical injury and pain.
27. Ms Cruise objected to suggestions in some of the material before the tribunal that physiotherapy and Feldenkrais did not improve her condition or that she had discontinued Feldenkrais. She pointed out that physiotherapy relieved and assisted her and that her GP referred her for physiotherapy. She also told the tribunal that she continued to practise Feldenkrais techniques and other exercise routines at home that made her better able to manage her condition.
FINDINGS
28. Based on the medical evidence before me and the evidence of Ms Cruise, we have reached the following conclusions about Ms Cruise’s medical condition:
· Ms Cruise has proven spinal abnormalities.
· On balance, these are likely to be degenerative.
· The evidence points to intermittent problems with a period of recovery and subsequent relative freedom from symptoms.
· Physiotherapy has assisted Ms Cruise’s management of pain but has not improved her underlying condition.
· Ms Cruise is very fit and possibly over exercises. She expects to continue with ongoing physiotherapy and relies on a physiotherapist who encourages her to continue this treatment. She has formed an opinion that her symptoms require exercise and physiotherapy only.
· Ms Cruise has her own strong view about the nature of her condition and has rejected all medical opinions, medication, psychological assistance and pain management treatment recommended by medical practitioners, including her general practitioner and specialists who have examined her.
THE ERGONOMIC CHAIR CLAIM
29. In respect to the claim made for the cost of the supportive chair, the first question is whether it constitutes “medical treatment” as defined under s 16 of the Act. Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury, compensation obtained in relation to the injury that it is reasonable for the employee to obtain. If the chair Ms Cruise bought is not medical treatment, it can’t be dealt with under s 16.
30. Medical treatment is defined under s 4 of the Act as meaning:
(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
(c) dental treatment by, or under the supervision of, a legally qualified dentist; 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
(e)an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or
(f)the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
(g) treatment and maintenance as a patient at a hospital; or
(h)nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
(i)any other form of treatment that is prescribed for the purposes of this definition.
31. The provision of an ergonomic chair has assisted Ms Cruise’s comfort at home but is not “medical treatment” in our view. She has a similar chair for work purposes. As to the chair at home, she simply finds it comfortable when she is relaxing. Having the chair at home has not produced any recorded improvement to Ms Cruise’s condition or brought about any recovery or rehabilitation. While some equipment recommended by a medical practitioner for use by an employee has occasionally been accepted as medical treatment, in the present case no medical practitioner has certified that it is part of Ms Cruise’s medical treatment as such. Dr Charteris wrote to the claims management centre on 9 March 2004 to the effect that Ms Cruise’s workplace chair had proved quite helpful and that one at home would make eating meals, reading and sitting to complete forms at home less difficult. Dr Charteris thought the chair might be reasonable and necessary for any activities that required sitting at home. Dr Crocker thought Ms Cruise’s chronic pain presentation justified access to the chair at home despite unclear diagnosis. He acknowledged that Ms Cruise received symptomatic benefit from it. Nevertheless, he added that he did not anticipate significant change with respect to workplace restrictions given the more protracted nature of Ms Cruise’s clinical presentation. In view of the intended and actual use of the chair, we do not consider that it qualifies as medical treatment. This is consistent with the approach taken by the Federal Court in Thiele v Commonwealth (1990) 95 ALR 172, which disallowed compensation as medical treatment for a swimming pool used for hydrotherapy. Also see the Tribunal case of Bradford and Comcare Australia (1994) 37 ALD 187, where the Tribunal noted that a chair used at home did not come within s 39 when there were suitable facilities were provided at work. Ms Cruise told the Tribunal that she wanted the chair at home because it was the same as the special chair provided for her at work, which she found very comfortable.
32. The claim might potentially come under s 39 where, if an employee suffers an injury resulting in impairment and is undertaking or has competed a rehabilitation program or, alternatively, has been assessed as not being capable of undertaking such a program, then Comcare may be liable for the costs of any aids or appliances reasonably required by the employee having regard to the requirements of the rehabilitation program and/or the nature of the impairment. In the Thiele case, the court allowed compensation for the pool under a similar head holding that the pool was capable of being an “aid”. The medical evidence, in our view however, falls short of establishing impairment. While s 39 does not require permanent impairment, Ms Cruise has not established that there are continuing effects of any aggravation caused by her work. Any injury or aggravation to the injury accepted previously by Comcare has ceased and there is no resulting impairment, so the impairment requirement is not met. Therefore, we find that the chair is not a compensable item and Ms Cruise’s claim for reimbursement is not a reasonable medical expense nor is it an aid or appliance for her use that qualifies under s 39.
33. As well, in relation to the claim, Ms Cruise has not completed the rehabilitation program designed by Comcare and is not currently undertaking a rehabilitation program. It follows that she does not meet the requirement in respect to the chair being connected to a rehabilitation program. The reason is that Ms Cruise declined to complete the program arranged and the rehabilitation case was closed when she requested removal of her rehabilitation provider. Not only is there no impairment resulting from a workplace injury, there is no current or completed rehabilitation program meeting the requirements of s 39. Moreover, it is apparent from the report of Dr Chen dated 3 November 2003 that the chair was not for use in connection with rehabilitation or in relation to assisting Ms Cruise to work from home or anything of that nature. Dr Chen recorded that Ms Cruise told him she was unable to sit for extended periods on a chair without back support due to low back pain. Ms Cruise agreed under questioning that she uses the chair in ordinary, every day activities such as eating meals, reading and watching TV. Again, that is apparent from the brief report of Dr Charteris.
FINDINGS AS TO PHYSIOTHERAPY
34. It is clear that physiotherapy comes within the definition of medical treatment or therapeutic treatment. This is the case even if it provides only temporary amelioration of symptoms. However, physiotherapy may not be appropriate indefinitely and medical supervision is desirable. This has been pointed out in earlier cases. For example, in the matter of Chowdhury v Comcare, (AAT 13003, 22 June 1988), Senior Member Bayne and Dr Miller observed:
“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”.
IS CONTINUING PHYSIOTHERAPY REASONABLE MEDICAL TREATMENT?
35. Ms Cruise places great importance on her regular and continuing physiotherapy. She believes that it is vital to her pain management and rejects other forms of treatment recommended by medical practitioners who have assessed her condition. However, in our view, passive physiotherapy is no longer appropriate in Ms Cruise’s treatment in the context of her claim against Comcare. The physiotherapy she has been receiving has not particularly improved her condition in the long term. It has limited short term benefit according to the medical opinions before us, noting that those opinions are based on the account given to practitioners by Ms Cruise of the benefits she finds. Any therapeutic benefit received is short‑lived and Ms Cruise finds it necessary to have constant repeat treatments. She expects to rely on ongoing physiotherapy indefinitely. We accept that pain relief, even short‑term relief or reduction in pain, can be therapeutic Comcare v Watson (1997) 73 FCR 273 AT 276 per Finn J). However, as the tribunal commented in the case of Chowdury it may cease to be reasonable. Again, in the case of Popovic and Compare [2000] AATA 264, the tribunal observed that any benefit may well be outweighed by leading the sufferer into a dependent state. The long dependence by Ms Cruise may be inhibiting her ability to learn to cope and preventing her from embarking on pain management programs to assist her. Taking into account the whole of the evidence before us, we consider that it may not be in her best interest to reply on passive physiotherapy modalities over several years while declining to continue with the rehabilitation program designed for her benefit. Also, see Re Jorgenson and Commonwealth (1990) 23 ALD 321.
36. Even if we found that the short-term therapeutic benefit to Ms Cruise was therapeutic for the purposes of the Act, in our opinion it is not reasonable treatment for the reasons mentioned above. To the extent Ms Cruise derives some temporary pain relief or possible therapeutic value from the psychological effect of receiving the treatment, psychologists could better provide this in an appropriately devised pain management plan. All the medical opinions before us suggest that this would be a preferable course of action for Ms Cruise but she has resolutely refused to co‑operate preferring to continue with physiotherapy. Comcare has already expended over $16,000 on physiotherapy treatments for Ms Cruise according to the materials before us and it is not reasonable to let this situation continue indefinitely.
37. In the present case a number of recommendations were made by a number of doctors whom Ms Cruise attended upon over the years. In particular, Dr Charteris has recorded in her notes that a pain management course has been raised. The matter is again raised in the two reports from Dr Crocker and the report of Dr Hall, who considered it likely to be the most productive approach. Dr Bodell supported physiotherapy but at a greatly reduced rate from that which Ms Cruise had been undergoing prior to Comcare ceasing to cover payment for physiotherapy sessions in December 2004. Dr McGill, in his report of 15 July 2005, thought there was no indication for further physiotherapy. He noted Ms Cruise did regular exercise and did not need supervision in that regard and then went on the say:
“Passive therapy or an ongoing formal supervised therapy, I think, can only be counter productive by encouraging dependency and an inappropriate sick role”.
38. We consider that, unless there is some formal plan or integration with other forms of treatment, which is going to result in more than very temporary benefits that Ms Cruise receives, that Ms Cruise’s faith in the physiotherapist over and above any of the other medical practitioners involved in her case is not justified. The medical specialists who have seen her are well qualified to deal with her sort of problems. Indeed, Dr Evans, who Ms Cruise saw at the request of her own solicitors made a particular comment about that aspect where he said:
“Though physiotherapists are very valuable people they’re taught skills are not particularly those of diagnosis but other hands on treatment.
39. For all of those reasons, it is not reasonable for Ms Cruise to continue to pay for physiotherapy beyond 3 December 2004, when Comcare ceased to accept liability for further treatments. On balance, we are not satisfied that Ms Cruise suffers permanent impairment as a result of a workplace injury. Her early symptoms resulted in a temporary transient aggravation of the underlying degenerative change only. Therefore, the reviewable decision of 26 April 2005 denying treatment costs after 3 December 2004 should be affirmed.
DOES MS CRUISE SUFFER PERMANENT WORK RELATED INCAPACITY?
40. The evidence is that as at the time when Comcare ceased to accept liability, Ms Cruise was working only three days per week. In October or November of 2005, she went back to full-time work as her sick leave was about to run out. She gave no evidence of any substantial improvement. This suggests that for the period between the cessation of liability, 3 December 2004, until she returned to work she was in fact capable of full-time work. This is borne out by Dr McGill who found no problem that would prevent her from carrying out her former duties but also by Dr Evans who made this comment:
“There’s no definite objective evidence of significant damage to her neck”.
41. Dr Evans also wrote:
“Overall it would be difficult to sustain a statement to the effect that she is physically unfit for her present job”.
42. Dr Bodel also saw Ms Cruise on 17 January 2005 and reported:
“Prolonged head down posture or strenuous and repetitive tasks overhead should be minimised in order to optimise long-term outcome. She should be capable of full‑time work as long as she is careful”.
43. The only independent medical evidence to suggest Ms Cruise was not capable of working full-time by 3 December 2004 comes from medical certificates of the general practitioner, Dr Charteris and from physiotherapists. We prefer the evidence of medical specialists who uniformly regard Ms Cruise as no longer suffering any work‑related effects preventing her from working.
44. Even if we found that the short-term therapeutic benefit derived by Ms Cruise was therapeutic for the purposes of the Act, in our opinion it is not reasonable treatment in the circumstances for the reasons mentioned above. To the extent that Ms Cruise derives some therapeutic value from the psychological effect of receiving physiotherapy, psychologists could better provide this in an appropriately devised pain management plan.
45. Essentially, Ms Cruise has suffered no work-related incapacity. Moreover, she has not established that her condition has deteriorated since 1999, and that it has deteriorated as a result of injury arising out of any of the subsequent employment. It follows that we make no finding that she is suffering compensable incapacity.
46. The only matters before the Tribunal were medical costs and the ergonomic chair. We have found that neither claim has been sustained. We therefore affirm the reviewable decisions made to disallow the compensation sought pursuant to s 16 and 19 of the Act.
DECISION
47. The decisions before the Tribunal are affirmed.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of 1
Signed: Margaret Driscoll
AssociateDate/s of Hearing 1 February 2006
Date of Decision 20 March 2006
Solicitor for the Applicant Self Represented
Counsel for the Respondent Brendan Kelly
Solicitor for the Respondent Shelley Johnson
0
4
0