Drummey and Comcare (Compensation)
[2016] AATA 738
•23 September 2016
Drummey and Comcare (Compensation) [2016] AATA 738 (23 September 2016)
Division
GENERAL DIVISION
File Number
2015/3792
Re
Jeffrey Drummey
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President I R Molloy
Date 23 September 2016 Place Brisbane The Tribunal affirms the decision under review.
…………………[Sgd]…………………………….
Deputy President I R Molloy
Catchwords
COMPENSATION – Compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – claims for massage therapy and pharmaceuticals – medical treatment obtained in relation to an injury – whether treatment was reasonable to obtain – reviewable decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19
Cases
Drummey v Comcare [1997] AATA 789;
Popovic v Comcare [2000] AATA 264;
Bayani v Australian Postal Corporation [2015] AATA 342;Alamos v Comcare [2014] AATA 629.
REASONS FOR DECISION
Deputy President I R Molloy
23 September 2016
INTRODUCTION
The applicant, Mr Drummey, has applied for review of a decision of Comcare (“the respondent”) dated 8 July 2015 affirming a determination dated 14 April 2014 denying his claims for massage therapy and pharmaceuticals under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act”).
BACKGROUND
Mr Drummey was born on 28 April 1957. He suffered an injury on 2 June 1992 for which liability to pay compensation under s 14 of the SCR Act was accepted in respect of “injury left scapular, back injury”.
Liability was subsequently ceased under ss 16 and 19 of the SRC Act but that decision was set aside and substituted with a decision that Mr Drummey was entitled to compensation under the SRC Act beyond November 1993.[1]
[1] Drummey v Comcare [1997] AATA 789.
Section 16(1) of the SCR Act provides that Comcare is liable to pay, in respect of the costs of medical treatment obtained in relation to an injury (being treatment that it was reasonable to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Massage therapy
Mr Drummey had been receiving treatment from Alfio Sorbello, a remedial massage therapist. Mr Sorbello said he first saw Mr Drummey when he walked in one day. He said he treated him for approximately seven years on a weekly basis until May 2015. The cost of treatment at that time was $81.32 per session.
The purpose of the treatment is pain relief. Mr Sorbello considers the treatment is “highly beneficial for reducing pain and freeing up the scapular and shoulder girdle to reduce tension on the trigger points and to improve the quality of life for Mr Drummey.”[2] He based this opinion on what Mr Drummey told him and his experience.
[2] Exhibit 1, T Documents, T 15, page 57, Letter from Alfio Sorbello dated 27 May 2015.
Mr Sorbello described how he treated the whole body. His method is to balance the body having regard to “stress lines”. This may call for treatment in an area seemingly far removed from Mr Drummey’s left shoulder, such as his knee. Mr Sorbello has not suggested that Mr Drummey seek any other treatment.
Mr Drummey says he suffers back pain which has never gone away. However the pain is reduced for three or sometimes four days after massage. He says that on occasions, once or twice, the pain has been more severe after massage. Nine times out of ten the treatment feels beneficial.
Mr Drummey says he has not changed his activities since the massage ceased but he is in more pain. Those activities are typically watching the morning news, going on the computer, and walking for 6 to 7 kilometres. He says he does some of the housework which could include vacuuming (but not cleaning the bathroom). He does not do any shopping which he says he despises. He does not cook which he leaves to his wife.
The evidence discloses that Mr Drummey had been receiving massage treatment before he visited Mr Sorbello.[3] Comcare estimates the Commonwealth has paid for 648 sessions of massage therapy since 2002 at a cost of between $63.00 and $81.32 per session.
[3] Exhibit 1, T Documents, T 35, Summary of entitlements paid.
Comcare concedes that massage therapy constitutes medical treatment for the purposes of the SRC Act, and that it is obtained in respect of Mr Drummey’s injury. This issue is whether it is treatment that is reasonable for Mr Drummey to obtain in the circumstances.
I have considered the submissions from Mr Drummey and Comcare, and have decided that it is not treatment that it is reasonable to obtain, substantially for the reasons advanced on behalf of Comcare as set out below.
With respect to what constitutes reasonable, Gray J in Re Jorgensen and Commonwealth (1990) 23 ALD 321 at 325 stated:
…The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation.
In Comcare Australia v Rope [2004] FCA 540, Stone J said that ‘the reference in s.16(1) to treatment being ‘reasonable to obtain in the circumstances’ is a clear indication that, in this case, the Tribunal was required to engage in a costs/benefit analysis…’ In Comcare v Holt (2007) 94 ALD 576, Mansfield J at [25] agreed that the costs/benefit analysis is appropriate and, at [26] also considered that ‘the extent to which treatment has been undertaken in the past and the degree of its success may also be relevant’.
In Alamos v Comcare [2014] AATA 629, the Tribunal, at [24], provided the following non-exhaustive list of factors which may be relevant considerations in the circumstances:
·The benefit of the treatment to the injured worker;
·The long-term effect 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.
The respondent contends that massage treatment is not reasonable treatment to obtain in the circumstances because:
(a)According to his letter dated 5 May 2015, the applicant accepts that the benefit he receives from the treatment is only ‘transient and temporary’. [4]
[4] Exhibit 1, T Documents, T 12, page 3, Letter from Applicant to Respondent dated 5 August 2015.
(b)According to the applicant’s general practitioner, Dr Ashok Kumar Chauhan in his report dated 11 March 2014, there is ‘no long term benefit, only short term benefit of few days after massage’.[5]
[5] Exhibit 1, T Documents, T 5, page 10, Medical Report: Dr Ashok Chauhan dated 11 March 2014.
(c)Dr Alan Home, occupational physician, in his report dated 27 March 2015, opined that ‘massage treatment will not be curative’ and it ‘will not ultimately change his outcome or his ongoing symptoms. He will only experience transient symptomatic benefit from massage.’[6]
[6] Exhibit 1, T Documents, T 10, page 39, Medical Report: Dr Home dated 27 March 2015.
(d)Dr Home further considered that ‘there is no accepted therapeutic benefit from massage in the management of chronic back pain’ and ‘there is no evidence base to support ongoing massage treatment’.[7]
(e)In his supplementary report dated 8 December 2015, Dr Home further stated that ‘there is no research evidence to demonstrate an effectiveness of massage treatment in relation to outcomes in the management of chronic spinal pain. Indeed, systemic reviews have demonstrated that passive treatments including massage, has no durable benefit for the management of chronic back pain.’
(f)Dr Home also reasoned that the treatment was not reasonable because it was not having a positive impact on the Applicant’s participation at home, work or in the community. In particular, Dr Home stated:
(i)The Applicant’s ‘work status is not changed by constant attendance at massage treatment’;
(ii)The Applicant’s ‘home based tasks is not improved by the constant receipt of massage treatment’; and,
(iii)The Applicant’s ‘overall function is not changed over time’.
(iv)Application of the Clinical Framework for the Delivery of Health Services indicates that ongoing massage therapy, in the circumstances of this case, may ‘reinforce illness behavior and can lead to persistent pain or long-term disability’.
(g)Dr Home, in his supplementary report dated 8 December 2015 considered the Framework and stated that ‘the constant provision of passive treatment…does not encourage or support independence and treatment but rather encourages or reinforces dependence on such treatment. It is fair to say that Mr Drummey has established counter-productive beliefs in relation to the treatment’. Dr Home further stated that ‘indeed a reliance on passive treatment would be regarded as a negative psychological factor in self-management’.
[7] Ibid, page 42.
In Chowdhary v Comcare [1998] AATA 448 at [53] the Tribunal said:
‘…there is no evidence of any plan to have physiotherapy treatment accompanied by a course of physical exercise such that the applicant might become re-conditioned and better able to cope with pain and manage a return to work. 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.’
Comcare also referred to Tribunal decisions commenting upon treatment which provided only short-term or slight benefit whilst creating a dependency on the treatment, and reinforcing illness behaviour and inhibiting ability to cope.[8] Mr Drummey relied on a recent ultrasound to contend that since the cessation of massage therapy his condition has deteriorated. However the medical evidence was that the ultrasound results had nothing at all to do with either his injury or the cessation of massage therapy.
[8] Popovic v Comcare [2000] AATA 264, at [28]; Bayani v Australian Postal Corporation [2015] AATA 342 at [55]. And see Alamos v Comcare [2014] AATA 629.
In the circumstances, although Mr Drummey may experience some benefit from massage treatment, that benefit is transient only. The treatment has no long term effect on his compensable condition and will not cure or significantly reduce the effects of his injury. It does not improve his functional capacity. In the time since the treatment ceased he has been able to cope with his daily routine and activities as he did before, including taking long walks and doing some of the housework. Having seen and heard Mr Sorbello and Mr Drummey give evidence, I think Mr Drummey had become reliant on massage therapy, and it quite likely had become a negative factor in his self-management. As I have said the Commonwealth has paid for over 640 sessions of massage since 2002. In the circumstances massage therapy is not treatment that Mr Drummey should continue to obtain.
Pharmaceuticals
The determination of 14 April 2015, and affirmed on 8 July 2015, denied what were perceived to be claims made by Mr Drummey for a range of pharmaceuticals. Mr Drummey has made it clear that the decision included pharmaceuticals that he either is not taking or for which he is not claiming because he accepts (and has always accepted) they are unrelated to his compensable injury.
The decision and subsequent determination were in respect of Actenol; Aspirin and Astrix; Arthro-Aid; Coveram and Noten; Crestor, Epilim, Nexium (Esomeprazole), Seretide and Tilade, Temazepam, and Risendronate.[9]
[9] Exhibit 1, T Documents, T 28, page 91-93, Comcare: Reviewable Decision dated 8 July 2015.
Of these, Mr Drummey said he was claiming for Coveram, Artho-Aid, Spren-Aspirin, Esomeprazole, and Actonel.[10]
[10] Exhibit 5, Mr Drummey’s statement: Response to Respondent’s Statement of Facts, Issues and Contentions, par [3.7], dated 18 May 2016.
There is no dispute that these all constitute “medical treatment” because they are recognised pharmaceutical drugs and are prescribed by Mr Drummey’s general practitioner. The issues are whether each is obtained “in relation to” the injury and the treatment is reasonable to obtain in the circumstances.
Artho-Aid
Dr Home says this is a glucosamine.[11] I accept Comcare’s submission as follows. Arthro-Aid is medication that ‘may have some protective effect in relation to the progression of osteoarthritis’. The Medical Review document dated 27 August 2014[12] indicates that this was prescribed for ‘mild degenerative intervertebral disc changes within the thoracic spine’. Liability has not been accepted in relation to osteoarthritis. Dr Home considered that ‘there is no likelihood that the use of glucosamine will change his [Mr Drummey’s] symptoms.’[13] He also considered that this drug was not a ‘reasonable and necessary consequence of his compensable condition.’ There is no specialist evidence to counter Dr Home’s view in this regard. Accordingly, there is insufficient evidence for the Tribunal to be satisfied that Artho-Aid is treatment obtained in relation to the injury. It is therefore not reasonable for Mr Drummey to obtain in the circumstances.
[11] Exhibit 1, T Documents, T 10, page 39, Medical Report: Dr Home dated 27 March 2015.
[12] Exhibit 1, T Documents, T 34, page 105-106, Clinical Notes: Dr Ashok Chauhan dated 27 August 2014.
[13] Exhibit 1, T Documents, T 10, page 39, Medical Report: Dr Home dated 27 March 2015.
Actenol
Actenol, according to Dr Home, is a treatment used to prevent osteoporosis.[14] The document titled ‘Medication review’[15] dated 9 August 2013, indicates that Actenol is prescribed to Mr Drummey by Dr Chauhan for that purpose. Liability has not been accepted in relation to osteoarthritis. Dr Home considered that ‘Actenol is not directly or indirectly arising from his injury’.[16] There is no specialist evidence to counter Dr Home’s view in this regard. Accordingly, I find it is not reasonable for Mr Drummey to obtain this pharmaceutical in the circumstances.
[14] Ibid.
[15] Exhibit 1, T Documents, T 34, page 103-104, Clinical Notes: Dr Ashok Chauhan dated 9 August 2013.
[16] Exhibit 1, T Documents, T 10, page 39, Medical Report: Dr Home dated 27 March 2015.
Aspirin/Astrix
Aspirin and Astrix, according to Dr Home, are different brands of the same drug.[17] According to Dr Home, the dosage that is prescribed to Mr Drummey means that Aspirin/Astrix are being used as blood thinners. This is the purpose of the medication according to the ‘Medication Review’ document.[18] Dr Home considered that ‘there is no relationship between the requirement for this medication and his workplace injury.’[19] There is no contrary medical evidence. Therefore it is not reasonable in the circumstances, meaning in the context of his injury, for Mr Drummey to obtain Aspirin and Astrix.
[17] Ibid
[18] Exhibit 1, T Documents, T 34, page 103-104, Clinical Notes: Dr Ashok Chauhan dated 9 August 2013.
[19] Exhibit 1, T Documents, T 10, page 39, Medical Report: Dr Home dated 27 March 2015.
Coveram and Noten
At the hearing Mr Drummey said he is not claiming for Noten. Coveram and Noten, according to Dr Home, are both drugs administered to manage hypertension. Dr Home has said that Mr Drummey’s ‘hypertension condition does not arise as a consequence of his upper back complaint’ and instead, is related to ‘constitutional factors’.[20] There is no contrary evidence. Accordingly, it is not reasonable for Mr Drummey to obtain Coveram or Noten in the circumstances.
[20] Ibid, page 41.
Nexium (Esomeprazole)
Nexium/Esomeprazole, according to Dr Home, is ‘used in the management of gastric reflux or peptic ulceration.’[21] This is consistent with the reason for the prescription indicated in the ‘Medication Review’ document.[22] Dr Home considered that the Mr Drummey’s ‘requirement for the use of Nexium is not indirectly or directly related to his accepted compensable condition.’[23] Accordingly, in respect of his injury this is not treatment it is reasonable to obtain in the circumstances.
[21] Ibid, page 40.
[22] Exhibit 1, T Documents, T 34, page 105-106, Clinical Notes: Dr Ashok Chauhan dated 27 August 2014.
[23] Exhibit 1, T Documents, T 10, page 40, Medical Report: Dr Home dated 27 March 2015.
Temazepam
At the hearing, and previously in correspondence with Comcare, Mr Drummey said he was not claiming for Temazepam. That concession was rightly made in light of Dr Home’s statement he was unable to determine any relationship between the use of Temazepam and Mr Drummey’s compensable condition.
Some of the pharmaceuticals the subject of the reviewable decision, as I have said, were not (or are not now) the subject of Mr Drummey’s claim. Accordingly, in general I have not found it necessary to deal with them individually. They have, however, been referred to by Dr Home.[24] I have considered what he has had to say. For the avoidance of doubt, I should record that I accept his evidence in this regard. Where Dr Home does not expressly record a relationship between the pharmaceutical and Mr Drummey’s compensable condition I find the treatment is not reasonable to obtain in the circumstances.
[24] Ibid, page 39.
CONCLUSION
The reviewable decision is affirmed.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy ...........................[Sgd].............................................
Associate
Dated 23 September 2016
Date of hearing 22 June 2016 Applicant In person Solicitors for Respondent Sparke Helmore
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