D'Amico and Comcare
[2007] AATA 77
•2 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 77
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/265
GENERAL ADMINISTRATIVE DIVISION
) Re DONATO D’AMICO Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date2 March 2007
Place Canberra
Decision 1) The decision of Comcare made 15 August 2005 which affirmed a determination that Mr D’Amico was no longer entitled to compensation under section 16 of the Safety, Rehabilitation and Compensation Act (1988) for pain management treatment prescribed by Dr Cassar is set aside.
2) In substitution for the decision set aside it is decided that up to and including the date of this decision Mr D’Amico is entitled to compensation for the pain management treatment prescribed by Dr Cassar in respect of the compensable injury suffered by Mr D’Amico on 1 May 1984.
3) The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay Mr D’Amico’s reasonable costs in this application.
..............................................
J.W. Constance, Senior Member
CATCHWORDS
Compensation – Commonwealth employees – Lower back injury – Whether treatment obtained in relation to the injury – Whether treatment reasonable to obtain in the circumstances – Therapeutic treatment.
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 16
Comcare v Watson (1997) 73 FCR 273; [1997] FCA 139
Bashar v Comcare (2002) 69 ALD 74; [2002] FCA 834
Re Mikic and Comcare (2002) 67 ALD 144; [2002] AATA 125
REASONS FOR DECISION
2 March 2007 J.W. Constance, Senior Member INTRODUCTION
1. Mr D’Amico was an Attendant at Parliament House in 1984 when he injured his back. Apart from very short periods when he attempted to return to work, he has been unable to work since the accident.
2. Since 2002 Mr D’Amico has been receiving treatment which combines massage, acupuncture and medication. In 2005 Comcare decided that it would no longer compensate Mr D’Amico for the cost of this treatment. Mr D’Amico seeks a review of this decision.
3. For the reasons that follow I have decided that the treatment in question is treatment which is reasonably for Mr D’Amico to obtain. The decision under review will be set aside.
FACTS
4. Unless otherwise stated the following findings of fact are based on the evidence of Mr D’Amico. A reference to a “T” document is a reference to the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) which are exhibit R2. I am satisfied of the facts found on the balance of probabilities.
5. Mr D’Amico is sixty-eight. In 1984 he was working as an attendant in Parliament House, employed by the House of Representatives. His duties included moving furniture. On 1 May 1984 Mr D’Amico injured his back whilst moving a heavy table. As a result of this injury he has not worked since September 1984. The Commissioner for Employees Compensation accepted liability to compensate Mr D’Amico for this injury (described by the Commissioner as “lumbago pain”[1]) in August 1984 and he has received compensation for medical expenses and/or loss of earnings ever since.
[1] T13.
6. In May 1985 Dr Farnbach, A/g Director of the Department of Rehabilitative Medicine at Woden Valley Hospital, advised the Commonwealth Medical Officer at the conclusion of a course of rehabilitative treatment that Mr D’Amico was not fit to return to his former employment and was not fit to undertake any form of employment as his physical abilities were “severely restricted.” [2] In addition Mr D’Amico’s general practitioner at the time, Dr Wardman, and an orthopaedic specialist Dr Calder, between them certified him unfit for work between September 1984 and September 1985.[3] In September 1985 Mr D’Amico was retired from his employment on the ground of invalidity. At the time, the Commonwealth Medical Officer certified that Mr D’Amico was unfit for continued employment by reason of his low back pain.[4] The Commissioner, and subsequently Comcare, accepted that the pain was a result of the injury at work and compensated Mr D’Amico accordingly. It is not in dispute that Mr D’Amico injured his back in the manner described in 1985.
[2] T29.
[3] T14, 16, 18, 19, 22, 24 and 30.
[4] T27.
7. When he gave evidence Mr D’Amico indicated that the pain he now suffers is in the middle of his back from just below the belt line radiating down both legs. I accept his evidence that he has suffered pain in his back since the time of the injury and the pain in his legs developed sometime later.
8. I am satisfied that prior to May 1984 Mr D’Amico suffered some episodes of back pain but not as severe and disabling as that suffered since the incident on 1 May 1984. This appears from medical practice notes now held by Dr Guirguis (Mr D’Amico’s present general practitioner) and which relate to a period of some years prior to his treatment of Mr D'Amico.[5] In the opinion of Dr Guirguis the notes indicate that an episode of back pain experienced by Mr D'Amico in 1978 was “just a casual brief back pain which responded well to brief physiotherapy.” [6] The notes do not record Mr D’Amico complaining of back pain between 1978 and 1984.
[5] Exhibit R1.
[6] Transcript of Proceedings, 11 September 2007, p. 38.
9. Over the years Mr D’Amico has tried many forms of treatment for both rehabilitation purposes and for pain relief. These include medication, heat packs, wearing a brace, hydrotherapy, chiropractic treatment, laser treatment and extensive physiotherapy and extensive massage. He also uses a massage chair to help him to relax and sleep. All these treatments have been funded by Comcare as treatment for the 1984 injury. He was also offered spinal injections but declined these when the associated risks were explained to him.
10. Since 2002 Mr D’Amico has been treated by Dr Cassar, Consultant Physician. This treatment has consisted of a continuation of the massage therapy already being received, needle acupuncture and analgesic and neuralgic medication.[7]
[7] Exhibit A3.
11. Mr D’Amico described the outcome of the treatment by Dr Cassar as follows:
“Well, I feel much better after the treatment, for a couple of days I feel a little bit better, then get worse again. That's why I keep going two times a week, that's all there is. I try once a week and I get too much pain and I couldn't cope with the pain, not during the day but in the night time when I sleeping it's very hard for me to sleeping. Get sore in the back and my legs start itching, you know, arms sort of thing. Couldn't sleep and that's why two times a week still what I really need.” [8]
“……with massage [I] could get 70 per cent better, with Dr Cassar I get maybe 80 per cent better, 90 per cent better, but a little bit better, that's what I - like little bit better. I cannot be 100 per cent, I never asking for that.” [9]
[8] Transcript of Proceedings, 11 September 2006, p. 6.
[9] Transcript of Proceedings, 11 September 2006, p. 25.
12. With encouragement from Dr Cassar, Mr D’Amico did try to reduce the treatments from twice to once per week but he felt that he could not manage the pain as well as he had been able to and he resorted to greater use of narcotic drugs to compensate. He continues to take Panadeine Forte as a last resort for pain relief but prefers to limit its use as it makes him feel dizzy and to suffer stomach cramps and vomiting.
MEDICAL EVIDENCE
13. Dr Guirguis has been Mr D'Amico’s family care physician since 1985. He provided a report of 11 June 2006 [10] and gave evidence. He affirmed the contents of his report.
[10] Exhibit A2.
14. Dr Guirguis described Mr D'Amico’s present condition as follows;
· complaint of ongoing lower back pain, altered sensations in the right leg and right sided sciatica;
· tenderness on palpitation of the lower back, reduced mobility, restricted leg raising and weakness of the right leg (these symptoms have been demonstrated on examination over a number of years);
· Mr D'Amico’s lifestyle has been compromised due to his chronic pain;
· he is suffering from anxiety and depression requiring medication as a result of his chronic pain.
15. Dr Guirguis diagnosis of Mr D'Amico’s condition is “acute disc injury as a result of the work injury of 1-May-1984 aggravating pre-existing degenerative lumbo-sacral spinal disease.”[11] In his opinion the condition has stabilized on the current treatment program administered by Dr Cassar.
[11] Exhibit A2.
16. In his report Dr Guirguis set out the pathological changes which in his opinion have occurred in Mr D'Amico’s spine and which account for his present symptoms:
· “Microdamage to the various soft tissue structures (ligaments, tendons and muscles) of the lower back. This damage leads to inflammation and pain.
·Following the aforementioned inflamatio nthe damaged tissues heal with the formation of fibrous tissue which has less resilience and less supportive properties. This fibrous tissue is much less effective than normal tissue in adapting to the changes of posture and the various dynamic activities of the spine.
·Lack of support to the articular system of the spine. Prior to the injury, the normal resilient support structures of the spine can adapt to protect the nerve structures from the degenerated bony areas. After the injury and the formation of fibrous tissue, this support function is much less efficient and the nerve protective properties are significantly reduced. Also the nerve structures are involved in the inflammatory process and the subsequent healing causing pain.”
17. Dr Guirguis agreed in cross-examination that since 1984 Mr D'Amico has suffered a number of exacerbations of his back pain and that the severity of the pain he has suffered fluctuated from time to time. He also agreed that the treatment being offered by Dr Cassar is palliative, not curative. In the opinion of Dr Guirguis the treatment is working and since the treatment commenced Mr D'Amico’s need for the more harmful medication (such as anti-inflammatories and strong painkillers) substantially diminished.
18. Dr Cassar gave evidence and confirmed his report of 29 March 2006.[12] Dr Cassar first assessed Mr D'Amico in March 2002. The purpose of the referral from Dr Guirguis was to endeavour to rehabilitate Mr D'Amico to the state of functional capacity and comfort that existed in early 2001. In early 2001 Mr D'Amico’s chronic low back pain and right leg sciatic pain required less medication and treatment than was required at the time of the referral.
[12] Exhibit A3.
19. On examination at the time of referral Dr Cassar noted the following:
· evidence of tenderness over the lumbosacral junction of his lumbar spine with limited extension and flexion of the lower back which reproduced back pain;
· evidence of impaired straight leg raising on both sides;
· absence of right knee and ankle jerks consistent with sciatica;
· x-rays of the lumbar spine taken in February 1987 suggested that by then Mr D'Amico had back spasm and pain substantial enough to show as scoliosis convex to the painful right side.[13]
[13] Exhibit A3.
20. Dr Cassar’s diagnosis was acute lumbar discogenic compression with disc degeneration L4/5 and subsequent disco vertebral pain generation as well as regional nerve root irritation and radicular pain generation. In his opinion it was more probable than not that the disability was caused by the incident of 1 May 1984.[14]
[14] Exhibit A3.
21. The treatment Dr Cassar has been providing to Mr D'Amico since 2002 has been a combination of analgesics, including Panadeine Forte and neuralgic pain medication (Epilim), needle acupuncturing and massage. On occasions Mr D'Amico has reported to Dr Cassar in distress, but only when he has not received regular treatments. Pain assessments of Mr D'Amico have been conducted to assess the need for ongoing treatment. In addition Dr Cassar says that evidence of Mr D’Amico’s inability to move his legs and back properly and his obvious distress have supported the conclusions drawn in the assessments.
22. Dr Cassar was questioned as to the changes in diagnosis he has made during the time he has been treating Mr D'Amico. He said that the addition of spinal cord stenosis in May 2003[15] was a result of the extra information provided by MRI scans but that the diagnosis was not based on degenerative changes that develop separate to an injury. In his opinion Mr D'Amico suffers “degenerative changes from a combination of ageing and the injury triggered problem which irritates the bone in the area.” [16] In this context Dr Cassar was referring to ageing as being from sixty years onwards.
[15] T97.
[16] Transcript of Proceedings, 11 September 2007, p. 56.
23. In the opinion of Dr Cassar, Mr D'Amico consistently presented, each and every time, with a fixed continuous stable lesion and this presentation has never changed. In his view there had been a rupture which irritated the nerve root on the right. In his report to Comcare Dr Cassar noted that there had been a benefit of the treatment in that the lumbago back condition had been contained. When asked to explain this, Dr Cassar stated that while Mr D'Amico continues the treatment he no longer suffers lumbago, another term for back spasms. Dr Cassar has tried at all times to minimize treatment, just to maintain Mr D'Amico’s stability, but without the range of treatments the spasms and pain in the right leg return. Dr Cassar has not encouraged Mr D'Amico to have any more treatment than has been absolutely necessary to manage his pain. Since introducing Epilim, Dr Cassar has not needed to prescribe as much Panadeine Forte.
24. The cost of treatment provided by Dr Cassar is approximately $35,000. Counsel for Comcare asked Dr Cassar “what’s the end point here, is it just treatment for the next 16 or 17 years?”
Dr Cassar responded:
“Unless he finds something better for him, yes. I mean it's easy to stop the treatment and start providing him with narcotics. Narcotics are going to have its own consequences on morbidity and mortality and reduce that survival significantly. It would also have consequences of increased medical involvement by two doctors on a regular basis to issue those drugs and the patient would be in a very poor state of health at home and wouldn't be doing anything and in bed, presumably, and asking for additional aids including a carer. They're the consequences if the treatment is pulled up.” [17]
[17] Transcript of Proceedings, 11 September 2007, p. 70.
25. In December 2005 Dr Pascall, Occupational Physician, assessed Mr D'Amico at the request of Comcare’s solicitors. The assessment was for about two hours and is the only time Mr D'Amico was assessed by Dr Pascall. Dr Pascall affirmed her report[18] of this assessment when she gave evidence.
[18] Exhibit R6.
26. In her report Dr Pascall stated that in her opinion Mr D'Amico’s low back pain is due to his degenerative lumbar spine and, more recently, also to his degenerative thoracic spine. In her opinion the leg pains can be attributed directly to referred pain from the back and tension around the sciatic nerve caused by tight muscles. When she gave evidence Dr Pascall added that the leg pains may be associated with vascular problems, although this would require additional investigation. Further, in Dr Pascall’s opinion, Mr D'Amico may have suffered a slight musculoligamentous injury in 1984 but the effects of such injury would have almost ceased several months later and there has been no acceleration of the degenerative changes by any injury.
27. Dr Pascall was firmly of the view that the treatment provided by Dr Cassar has failed to achieve anything “sustainable or worthwhile.” [19] It is Dr Pascall’s opinion that Dr Cassar’s treatement has been of no assistance to Mr D'Amico and that Dr Cassar has not been treating the injury (if there was one) suffered by Mr D'Amico on 1 May 1984. She also expressed the view that the treatment had made Mr D’Amico reliant on treatment rather than taking personal responsibility himself for his pain management.
[19] Transcript of Proceedings, 11 September 2007, p. 79.
28. In her report written in January 2006 Dr Pascall expressed the following opinion as to the likelihood of some form of counselling being successful in changing Mr D'Amico’s attitude to treatment and in particular her opinion of what she believes is inappropriate reliance on the treatment offered by Dr Cassar:
“It is going to be exceedingly difficult if not impossible, to convince [Mr D’Amico] that his back pain and leg pains are not associated with an injury in 1984. It is unfortunate that this has been perpetuated all these years by the ongoing liability accepted by the insurer…….
I very much doubt whether, over the years, his disability from his back was so great as to have made him unemployable but his resistance in the early years set the scene for a lifetime of dependency on benefits and a belief that he was unable to work and required whatever he perceived he needed to make himself more comfortable.” [20]
[20] Exhibit R6, pp 16-17.
29. When she gave evidence 9 months later, Dr Pascall expressed a different view:
“The only treatment regime he needs is the weaning process and maybe a psychologist for, you know, four/five months might be able to wean him off the demands for treatment……….It is a process that would take six months, I would say, at the least………GP’s can deliver this sort of thing………If the GP doesn’t feel they [sic] can do it, then it usually gets referred to a psychologist.”[21]
[21] Transcript of Proceedings, 11 September 2007, pp 94 & 96.
30. Included in the “T” documents (exhibit 2), but not referred to by either Counsel, is a report by Dr Cairns, Orthopaedic Surgeon. The report is dated 23 September 1988 and indicates that Dr Cairns examined Mr D’Amico the previous day at the request of the Commissioner. In his report Dr Cairns stated:
“The evidence suggests that he suffered an aggravation of symptoms related to pre-existent degenerative changes in the lumbo-sacral spine, such aggravation being reasonably expected to have resolved within 8-12 weeks………There are overt signs in his clinical examination to confirm psychogenic magnification of his symptoms, and I believe this to be his major ongoing disabling factor.
He remains unfit for employment insofar as he is not physically fit to pursue heavy manual activities, and is possibly physically, certainly psychologically, unfit to resume work of light manual nature.”
LEGISLATIVE FRAMEWORK
31. Subsection 16(1) of the Act provides:
“(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.”
32. Subsection 4(1) contains definitions of “medical treatment” and “therapeutic treatment”.
33. The definition of “medical treatment” includes:
“(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
.……………………….”.
34. Therapeutic treatment is defined as:
“therapeutic treatment includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.”
ISSUES FOR DETERMINATION
35. Two issues arise for determination:
1)is the treatment being prescribed by Dr Cassar treatment obtained “in relation to the injury”;
2)if so, is it treatment that “was reasonable for [Mr D’Amico] to obtain in the circumstances”?
Is the treatment being prescribed by Dr Cassar treatment obtained “in relation to the injury”?
36. This is not a case where it is necessary to decide whether a particular treatment is sufficiently closely related to the injury to enable it to be said that the treatment was obtained “in relation to” the injury. Here the issue has arisen because of the view expressed by Dr Pascall that the condition from which Mr D’Amico suffers since (at the most) several months after the incident of 1 May 1984, is not related to that incident. In Dr Pascall’s view the treatment prescribed by Dr Cassar is not treatment for a relatively minor injury suffered by Mr D’Amico in May 1984 but is treatment for his degenerative spine. It is therefore necessary to assess the evidence as to the nature of the injury suffered by Mr D’Amico and its subsequent progression.
37. The overwhelming weight of evidence is that Mr D’Amico suffered a serious injury on 1 May 1984 and he has suffered the symptoms of this injury for a much greater time than that estimated by Dr Pascall. I have taken into account the evidence (to which I have already referred) of the following practitioners who have expressed an opinion contrary to that of Dr Pascall:
·Dr Wardman
·Dr Calder
·Dr Farnbach
·Commonwealth Medical Officer
·Dr Guirguis
·Dr Cassar.
38. All of the above practitioners have had the opportunity to assess Mr D’Amico over a considerable period of time, in some cases on many occasions. Between them they also have a wide range of experience and relevant qualifications.
39. By reason of the number of experts who share the view that Mr D’Amico’s condition has been caused by the compensable injury and the fact that Dr Pascall only examined Mr D’Amico for about two hours on one occasion over twenty years after the incident, I prefer the opinions expressed by the several practitioners listed above.
40. I have taken into account the opinion of Dr Cairns expressed in his report, which gives some support for Dr Pascall’s view. However Dr Cairns is not definite that the effects of the May 1984 injury had in fact resolved when he expected that it would. I am also concerned as to an apparent inconsistency in his report. He is of the view that psychogenic magnification is the “major ongoing disabling factor” and yet recognizes that Mr D’Amico may be physically unfit to resume even light manual work. I have also taken into account the opinion of Dr Mickelburgh to which I refer later in these reasons.
41. I am satisfied on the balance of probabilities that the treatment being prescribed by Dr Cassar is treatment obtained by Mr D’Amico in relation to the compensable injury suffered by him on 1 May 1984.
Is it treatment that it was reasonable for Mr D’Amico to obtain in the circumstances?
42. It is clear from the definitions to which I have already referred that medical treatment under the Act includes therapeutic treatment which in turn includes treatment to alleviate an injury. In Comcare v Watson (1997) 73 FCR 273 at 276 the Federal Court considered section 16 of the Act. Finn J said:
“A course of treatment designed to, or aimed at, alleviating the pain caused by an injury or disease is, in my view, properly to be regarded as therapeutic treatment.”
43. In Bashar v Comcare (2002) 69 ALD 74 Madgwick J, in reference to the above statement, said:
“Further, it is perfectly clear that his Honour was saying, and again, I agree with him, that the notion of therapeutic treatment includes merely palliative treatment, what his Honour referred to as, ‘the alleviation of the pain of an injury’ .”
44. I am satisfied that at present it is reasonable for Mr D’Amico to obtain the treatment provided by Dr Cassar and that it has been reasonable for him to obtain that treatment until now. In reaching this decision I prefer Dr Cassar, Dr Guirguis and Mr D’Amico’s evidence as to the efficacy of the treatment to that of Dr Pascall.
45. Having observed Mr D’Amico give evidence I accept him as an honest witness. I am satisfied that he genuinely obtains some relief from pain by reason of the treatment given, even though that relief is relatively short-lived. In this regard I have been assisted in forming this view by the opinion of Dr Mickelburgh, Consultant Psychiatrist. Dr Mickelburgh assessed Mr D’Amico in September 2003 at the request of Comcare. He found no reason to suspect that Mr D’Amico was deliberately exaggerating his symptoms or that there was any unconscious exaggeration.[22] I also have taken into account that since Comcare ceased to pay for the treatment in June 2005 Mr D’Amico has continued with the treatment, partly at his own expense and involving some travelling. I do not accept Dr Pascall’s contention that a visit to Dr Cassar’s rooms is regarded by Mr D’Amico as some type of social outing.
[22] T105 at p. 9.
46. There are several reasons for my preferring the evidence of Dr Cassar and Dr Guirguis. Of particular importance in this case is that both are experienced practitioners who have the advantage of being treating doctors who know their patient well and who have had the opportunity to assess him over considerable time. On the other hand Dr Pascall has assessed Mr D’Amico on only one occasion for about two hours. In these circumstances Dr Pascall’s dismissive attitude in relation to the opinions of the treating practitioners caused me to regard her views to be of lesser value. I do not find that Dr Pascall has greater expertise than Dr Cassar in relation to the treatment of Mr D’Amico. Her response to a question from Counsel for Mr D’Amico indicated that she had not even considered the opinion of Dr Guirguis before forming and expressing her own views on the appropriateness of the treatment being prescribed.[23]
[23] Transcript of Proceedings, 11 September 2007, p. 84.
47. There are a number of other reasons I do not accept the opinions of Dr Pascall. She disregards the evidence of Mr D’Amico that he obtains relief from the treatment. She also disregards the evidence of Dr Cassar that the treatment has reduced the level of drugs being taken by Mr D’Amico and contradicts the evidence of Dr Cassar that the treatment, so long as it is maintained, eliminates the back spasms.[24] Dr Cassar was not challenged when he expressed his opinion that the treatment had achieved this outcome. Further, Dr Pascall was reluctant to acknowledge that the treatment under consideration had achieved any positive outcomes and was evasive when asked whether she considered the reduction in the level of pain suffered by Mr D’Amico was an appropriate outcome.[25] I accept the evidence of Dr Cassar and Dr Guirguis that it is.
[24] Transcript of Proceedings, 11 September 2007, p. 79.
[25] Transcript of Proceedings, 11 September 2007, pp 85-86.
48. Dr Pascall’s stated view that the treatment had failed “to achieve anything sustainable and worthwhile” [26] was inconsistent with the following response to a question by Counsel for Comcare:
“Do you think Dr Cassar’s treatment is an appropriate treatment for Mr D’Amico’s legs?”
“I would prefer to have the diagnosis more concrete before I go into the question of whether it’s appropriate, or not appropriate.” [27]
[26] Transcript of Proceedings, 11 September 2007, p. 79.
[27] Transcript of Proceedings, 11 September 2007, p. 81.
49. Dr Pascall does not appear to have given appropriate consideration to the alternative treatment which she says should replace that offered by Dr Cassar. At times she spoke of the need to “wean” Mr D’Amico from his present treatment yet in evidence she said that if Mr D’Amico was her patient she would cease Dr Cassar’s treatment immediately.[28]
[28] Transcript of Proceedings, 11 September 2007, p. 89.
50. Dr Pascall sought to reinforce her opinion that the treatment had failed by stating that Mr D’Amico “must have kept going each for the last six or eight months or whatever it is that he’s gone without Dr Cassar’s treatment.” [29] Dr Pascall did not state the basis for this assumption. I am satisfied on the basis of the evidence of Mr D’Amico that her assumption is incorrect.
[29] Transcript of Proceedings, 11 September 2007, p. 97.
51. What treatment is reasonable to obtain in the circumstances is a matter to be determined on the facts of each particular case. I have taken into account that the treatment is expensive but I accept Dr Cassar’s evidence that he has endeavoured to keep the amount of treatment sessions to a minimum. In Re Mikic and Comcare (2002) 67 ALD 144 the Tribunal held that it was reasonable to obtain physiotherapy which was part of a broader treatment plan even though the physiotherapy itself was not curative and had cost $20,000 over eight years.
52. I am satisfied that the treatment in question in this matter is of sufficient benefit to Mr D’Amico to justify its continuation at present. I am satisfied that if the treatment is maintained, Mr D’Amico does not suffer the back spasms he would otherwise suffer. It also provides him with some pain relief and, at the same time, allows him to reduce his reliance on narcotic drugs. This is not to say that the present treatment should continue indefinitely and I do not suggest that either Dr Cassar or Dr Guirguis would permit this without proper consideration being given to the effectiveness of the treatment. It may well be that a combination of the present treatment and alternatives such as those proposed by Dr Pascall will be appropriate in future. I do not have the power to make decisions in this regard.
53. Even if I had preferred the evidence of Dr Pascall I would still have been satisfied that at present it is reasonable for Mr D’Amico to obtain the treatment being provided. Notwithstanding that Dr Pascall appeared to be under the impression that Mr D’Amico had ceased the treatment several months ago, on further questioning it became apparent that if her proposal was implemented there would be considerable medical assistance to Mr D’Amico. Her proposed treatment would involve at least six months of psychological intervention, encouragement, assessment of Mr D’Amico’s manner of coping with pain and the development of strategies to assist him in this regard. [30]
[30] Transcript of Proceedings, 11 September 2007, p. 96.
54. Subsection 16(1) of the Act requires consideration to be given to the circumstances in which the treatment is obtained. In this case the circumstances include the fact that Mr D’Amico has been compensated for the injury he suffered in 1984 for the past 23 years and on medical advice was retired from his employment by reason of that injury. Also to be taken into account is the lengthy period of treatment by Dr Cassar which has been approved by Comcare and the fact that it has provided him relief from pain and allowed him to limit his drug intake. It is also relevant that Mr D’Amico is genuinely concerned as to the risks involved in alternative treatments.
55. On one proposal put forward by Dr Pascall the treatment prescribed by Dr Cassar would be reduced over time in conjunction with the introduction of the alternative treatment outlined by Dr Pascall. When Comcare decided it was no longer reasonable for Mr D’Amico to obtain treatment from Dr Cassar there was no
alternative treatment in place or proposed. In those circumstances it is reasonable for Mr D’Amico, at present, to obtain the treatment he has been receiving. It is also reasonable that he obtained the treatment he has been prescribed up until now. Whether or not it will be reasonable to continue the treatment presently being obtained should alternative treatment be offered is not a matter for determination in these proceedings.
DECISION
56. The decision of Comcare made 15 August 2005 which affirmed a determination that Mr D’Amico was no longer entitled to compensation under section 16 of the Safety, Rehabilitation and Compensation Act (1988) for pain management treatment prescribed by Dr Cassar is set aside.
57. In substitution for the decision set aside it is decided that up to and including the date of this decision Mr D’Amico is entitled to compensation for the pain management treatment prescribed by Dr Cassar in respect of the compensable injury suffered by Mr D’Amico on 1 May 1984.
58. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay Mr D’Amico’s reasonable costs in this application.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.
Signed: .....................................................................................
Geoff Foley, AssociateDate/s of Hearing 11 September 2006
Date of Final Submissions 27 November 2006
Date of Decision 2 March 2007
Counsel for the Applicant Mr W Sharwood
Solicitor for the Applicant Pamela Coward & Associates
Counsel for the Respondent Mr A Dillon
Solicitor for the Respondent Australian Government Solicitor
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