Enright and Comcare
[2005] AATA 603
•27 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 603
ADMINISTRATIVE APPEALS TRIBUNAL N°V2004/610
GENERAL ADMINISTRATIVE DIVISION Re JOHN ENRIGHT Applicant
And
COMCARE
Respondent
DECISION
Tribunal: Miss E A Shanahan, Member
Date: 27 June 2005
Place: Melbourne
Decision:The decision under review is affirmed with respect to the claim for continuing Comcare‑funded massage.
The applicant withdrew his claim for continuing chiropractic treatment at the hearing.
(sgd) E.A. Shanahan
Member
COMPENSATION – cessation of chiropractic treatment and massage – concurrent payment for chiropractic treatment by Comcare and WorkCover Victoria – temporary benefit from ongoing treatment – medical evidence of little or any therapeutic benefit of massage
Safety, Rehabilitation and Compensation Act 1988 ss 4, 16, 118.
Re Comcare and Watson (1997) 46 ALD 481
Comcare v O’Brien (1997) 49 ALD 293
Re Chowdhary and Comcare [1998] AATA 448
REASONS FOR DECISION
27 June 2005 Miss E A Shanahan, Member
1. This is an application by John Enright (the applicant) for review of a decision of a primary delegate of the respondent dated 24 December 2003, affirmed by an Authorised Review Officer (ARO) on 12 March 2004, to cease the respondent’s payment for the applicant’s chiropractic treatment and massage therapy as of 1 February 2004.
2. The applicant was self-represented. Ms McMahon of Counsel appeared for the respondent, instructed by Australian Government Solicitor. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents). The parties tendered the following documents:
·Report of Mr Russell Miller, Orthopaedic Surgeon,
dated 2 May 2005 Exhibit A1
·Report of Dr Clayton H Thomas dated 28 July 2004 Exhibit A2
·Report of Dr K J Stewart, Chiropractor, dated 29 July 2004 Exhibit A3
·Report of Ms Anne Devenish, Masseuse and Reflexologist,
dated 21 August 2004 Exhibit A4
·Report of Mr Michael Shannon, Orthopaedic Surgeon,
dated 20 October 2005 Exhibit R1
·The Applicant’s Victorian WorkCover file Exhibit R2
Mr Enright gave evidence to the Tribunal.
background to the application
3. Mr Enright began an apprenticeship in Carpentry and Joinery with the Commonwealth Aircraft Factory in Victoria in 1971 at the age of 15. In 1972 he reported a back injury, but there appear to be no details regarding this event on record. In 1976 he suffered a further back injury, the details of which are again unknown, and was off work for a period of two weeks, but is said to have recovered fully. In 1984 he was involved in a motorcycle accident, but the extent of his injuries is unknown. On or about 21 May 1985 Mr Enright reported severe back pain to the respondent, and, while unable to identify an acute injury, attributed this to long-term bending and lifting and, in particular, the making of timber boxes for various aircraft parts. The injury of 21 May 1985 was accepted by the respondent as being work‑caused in accordance with the Compensation (Commonwealth Government Employees) Act 1971. Following the injury, Mr Enright was off work for approximately three weeks and underwent two or perhaps three hospital inpatient treatments in the form of manipulation under general anaesthesia. The first two of these were performed by Mr Wilton Carter in Ballarat and Mr Enright thinks the third was performed at the Melton Hospital. He is uncertain of the details. Mr Enright was paid weekly compensation for incapacity, and ongoing medical expenses, from 1985 to 1990. In August 1990 the respondent ceased liability to pay incapacity and medical and travel expenses. Following an application to the Administrative Appeals Tribunal, the respondent agreed to continue to pay the applicant’s medical expenses.
4. In August 1987, Mr Enright was retrenched, when the Commonwealth Aircraft factory was privatised. He was unemployed for a period of approximately two years and then obtained part-time work as a Handyman for the Melton Shire Council, essentially performing carpentry work for the disabled and the aged. He continued to receive Comcare-funded chiropractic treatment and massages from 1989 to 2004. The chiropractic treatment occurred approximately once per month and the massage twice per week.
5. In 1991, while in the employ of Melton Shire Council, Mr Enright suffered a further back injury while lifting his tool box from his car at home. Liability was accepted by the Council and compensation and treatment payments were made by WorkCover Victoria. These included payment for medical expenses, investigations and chiropractic treatment. The latter commenced on or about 13 May 1991 and is ongoing. WorkCover also paid the sum of $195 for an exercise course at a gymnasium. In May 1995, Mr Enright accepted a settlement payment of $7,635.60, representing a 15% permanent impairment of the back. Payment of chiropractic costs continued.
6. It would appear that Mr Enright was sacked by the Melton Shire Council in 1991.
7. In 1992 Mr Enright established his own business as a Handyman and he continues in this occupation.
8. The applicant claims ongoing constant back pain resulting from his 1985 injury and appears to regard the further injury of 1991 as a totally separate and unrelated event. He has not informed doctors examining him for Comcare purposes of his Victorian WorkCover^ claim, nor has he informed the WorkCover doctors of his ongoing Comcare payments. Since 1993, Mr Enright has attended Ms Devenish, a masseuse, twice a week for what appears to be a whole-body massage, and has had 910 sessions of massage. These have been paid for by Comcare. With respect to the chiropractic treatment, it would appear that Mr Enright instructed his chiropractor to bill Comcare, and WorkCover alternately over the same period.
9. To assess the need for ongoing massage and chiropractic treatment, Comcare had the applicant examined by an orthopaedic surgeon. The respondent, acting on the medical advice obtained, then denied liability for massage, hydrotherapy and chiropractic treatment from 1 September 2003. On review of this decision by an ARO, liability was accepted for further chiropractic and massage therapy up to and including 31 January 2004. Mr Enright applied for review of this decision by the Administrative Appeals Tribunal on 20 May 2004.
10. At the commencement of the hearing, Mr Enright indicated, and subsequently confirmed, that he would not be continuing the claim for continuing chiropractic treatment. Thus, the only issue for the Tribunal to determine was whether the ongoing massage therapy was of therapeutic benefit and reasonable for the employee to obtain in accordance with s 16 of the Safety, Rehabilitation and Compensation Act 1988 Act (the Act).
evidence before the tribunal
Mr John Enright
11. At the commencement of his evidence before the Tribunal, Mr Enright stated that he was seeking continuing payment for his massage therapy and the cost of his consultation with and the provision of a report by Mr Russell Miller (exhibit A1). His claim for continuing cost of chiropractic treatment was no longer afoot.
12. Mr Enright confirmed that he was now self-employed as a handyman, performing minor carpentry in the Melton area. He had established his own business in 1992. From 1971 he had worked at the Commonwealth Aircraft Factory, having commenced his apprenticeship as a Carpenter and Joiner in that year. He said he first injured his back in 1972, but could not recall the circumstances of that injury and believed that he had received injections in his back by the Works doctor at that time. Mr Enright had no recollection of a motor vehicle accident on 26 May 1984. That was reported by Dr Shaw (exhibit R2). The motor vehicle accident was also recorded in the clinical notes of Dr Lee, which had been made available to the parties but not the Tribunal. Ms McMahon asked Mr Enright for details of an injury that occurred on 25 June 1984 which resulted in a claim against Comcare, but Mr Enright could not recall a 1984 injury. He said that on 21 May 1985, after some hours of constructing box containers, he had noted severe lower lumbar back pain and reported to his general practitioner, Dr Lee, and also attended a chiropractor for treatment in July 1985. Mr Enright acknowledged that he was later referred to Mr Carter, an Orthopaedic Surgeon, but he could not recall the details of the referral, prior to March 1987, when Mr Carter performed a manipulation under general anaesthetic. Following that treatment, Mr Carter advised Mr Enright to swim and exercise. Mr Enright had undertaken a daily exercise program, but he only practises swimming and hydrotherapy occasionally.
13. Mr Enright said he had been retrenched in August 1987, when the Commonwealth Aircraft Factory was privatised. He was off work from that date until October 1989, during which time he received incapacity benefits from Comcare. Mr Enright thought he had had three manipulations of his back, two in Ballarat and one at the Melton Hospital, but could not remember the exact details. Mr Enright commenced regular chiropractic treatment in October 1988 or 1989. Mr Enright could not recall having told his general practitioner, Dr Stobart, in October 1988 that he was now symptom-free with respect to his back pain. In fact he said his pain has been present since the 1985 injury and fluctuates daily. Mr Enright denied that he had told those doctors assessing him for WorkCover purposes that his 1985 injury had fully resolved in two to three weeks’ time. He agreed he had not told his employer, the Melton Shire Council, of his back injury in 1985, nor had he informed the Administrative Appeals Tribunal or any representative of Comcare about his 1991 accident and payment received from WorkCover Victoria.
14. Ms McMahon took Mr Enright through all his medical examinations for Comcare and WorkCover purposes. He agreed that he had not told the Comcare doctors about his May 1991 back injury and on most occasions had not told the WorkCover doctors assessing him for the 1991 injury about his previous 1985 injury and the payments he was receiving from Comcare. He regarded these two incidents as quite separate and isolated; and therefore he deemed it not relevant to his treatment to tell these two groups of doctors about the other injuries.
15. Mr Enright agreed that Mr Russell Miller, Orthopaedic Surgeon, was the only doctor he had told about the two instances in any detail, and this he had done after he had consulted a solicitor who had advised him to be “open and upfront”. Mr Enright said he had suggested to his chiropractor Dr Stewart that alternate accounts for his chiropractic treatment be sent to Comcare and WorkCover Victoria. Ms McMahon pointed out that Dr Stewart had written almost identical letters to Comcare and WorkCover Victoria, the only difference relating to the date of the injury, i.e. the Comcare injury of 1985 and the Workcover injury of 1991.
16. Mr Enright said he had started having twice-weekly massages from Ms Devenish, a masseuse, in 1993. He found this beneficial in that it relaxed his back muscles, but the massage did include his legs, knees, feet, neck, arms and wrists. It was noted that the liability for massage had only been accepted for treatment of Mr Enright’s back. Mr Enright agreed that all accounts for his massages had been billed to Comcare between 5 July 1994 and 26 January 2004.
17. Ms McMahon and the Tribunal asked Mr Enright if he would have mentioned the 1991 injury to his back in his evidence, if Comcare had not discovered his WorkCover file. To which he answered No.
18. Mr Enright said he had not seen a specialist for treatment of his back since 1987. Nor were any of his general practitioners supervising either his massage or his chiropractic treatment, although they had provided him with short notes to continue this form of treatment. The only times he had gone without his twice‑weekly massages were when Ms Devenish or he were on holidays. In 2003 there was a period of two months when he was travelling overseas and did not have any massages, and he did not suffer any deterioration of his symptoms. This he attributed to the fact that he was not working, was on holiday and was relaxed.
19. Mr Enright acknowledged that none of the specialists he had seen had recommended massage for his back, although Dr Clayton Thomas had suggested this might continue on the basis that Mr Enright had become dependant on such treatment.
20. Mr Enright said he had lodged a claim for WorkCover after the 1991 injury on the recommendation of his solicitors, who he had told about his ongoing Comcare payments. His solicitors had advised that his application for review of Comcare’s decision of 16 August 1990 (T22) would be unsuccessful, given the compensation being paid by WorkCover, and because of this advice Mr Enright had represented himself at the hearing on 9 May 1994. Mr Enright admitted that he had not done “the right thing”, but as far as he was concerned both (Comcare and WorkCover Victoria) were responsible for his injuries. Mr Enright admitted he had been sacked by the Melton Shire Council. Mr Enright also admitted that he had told the doctors, including Mr Shannon (exhibit R2), that he had left voluntarily, or that he did not mention the method of termination of employment unless he was asked that question directly.
21. Mr Enright was quite familiar with the diagnosis of his back condition, which he described as degenerative disc changes at L4-5. He had however not discussed his condition at length with any specialist, for fear that they might recommend surgery, and he did not discuss his back symptoms with his current general practitioners. He agreed that no-one at any time had recommended that he might require surgery and that all the orthopaedic opinions had recommended structured exercise programs including swimming and walking. Mr Enright believes that his current treatment regime of chiropractic treatment and massage keeps him going and enables him to continue working. He has not seen an orthopaedic surgeon since 1987. Nor has he seen a physiotherapist for many years. He abandoned his hydrotherapy more than ten years ago, except when being treated for a knee cartilage injury. Mr Enright said he also saw Ms Devenish socially on a relatively frequent basis, which involved going out for drinks and meals.
22. The Tribunal took Mr Enright to the WorkCover claim forms he had submitted following the 1991 injury (exhibit R2). In the original claim form, dated 22 May 1991, he had left blank the paragraph which asks “Have you previously suffered any similar injury or condition – if so, give details”. In the claim form for compensation for permanent disability, dated 24 January 1995, Mr Enright had declared that his back had not previously been affected by any injury or condition. Mr Enright confirmed that it was his signature on both documents.
documentary evidence before the tribunal
Mr Wilton Carter
23. Mr Carter had provided several reports between 11 March 1987 and 16 September 1987. These confirm that he had first seen the applicant on 6 March 1987 for treatment of lower back pain, evidenced by periodic acute attacks with variable response to chiropractic treatment. The most recent attack of acute pain was said to have been in December 1986. Mr Carter noted slight muscle spasm in the lumbar area, restriction of all movement and normal neurological findings. Plain x-rays of the lumbar spine were considered to be within normal limits. Initially Mr Carter advised conservative treatment, but that if the pain did not settle, manipulation or traction may be necessary. Mr Carter’s diagnosed a facet joint type syndrome. Subsequently, Mr Carter performed manipulations under general anaesthetic, arranged for facet joint injections in 1987, and in his report of 16 September 1987, he was of the opinion that Mr Enright was incapacitated for work at that time and, while he anticipated improvement, he felt that the work in Carpentry would be limited. Mr Carter therefore recommended vocational guidance and retraining for an occupation such as a trade instructor or teacher. Mr Carter did not see Mr Enright again.
Treating General Practitioners
24. The reports of Dr J Sadhai (T6, T8, T9, T14), Dr R Stobart (T12, T13, T18, T23, T34, T35), Dr L Moaven (T19, T21) and Dr J Lee (T41, T42, T44) consist essentially of medical certificates and letters of referral to Mr Carter, physiotherapist and Dr K Stewart, chiropractor. They do not provide any further or new information.
Dr K Stewart, Chiropractor (T20 and exhibit A3)
25. In his letter of 26 October 1989, addressed “to whom it may concern”, Dr Stewart stated that Mr Enright had recently returned to some work duties after a long period off work as a result of a back injury. He considered it necessary for him to continue to receive occasional chiropractic treatment in the short to medium term. In addition, Dr Stewart recommended that Mr Enright continue with his therapeutic massage and swimming exercises. Dr Stewart provided a more detailed report dated 29 July 2004, again addressed “to whom it may concern”. Dr Stewart had first seen Mr Enright on 23 July 1985, with severe bilateral lumbar-sacral pain, present for seven weeks, and attributed to his work at the Government Aircraft Factory. Dr Stewart had diagnosed chronic symptomatic spondylosis of the lumbar spine. Dr Stewart attributed Mr Enright’s ability to continue working at the time of his report, to the daily exercise program Mr Enright followed, the wearing of a support belt, and his ongoing chiropractic treatment. The chiropractic treatment frequency varied with flare-ups of his back symptoms, but generally occurred every four to six weeks.
Reports of Mr Brian Davie (T25, T29)
26. Mr Davie assessed Mr Enright at the request of Comcare. Mr Davie saw Mr Enright on 28 October 1991 and 18 November 1991. He obtained a history of back injury, occurring at work at the Commonwealth Aircraft Factory in 1976, and resulting in two weeks off work. Following this injury, there was intermittent back pain in the lumbar area over the years. The applicant told Mr Davie that in May 1985 a more severe episode of back pain occurred at work and he was off work for three weeks. Mr Enright complained of low lumbar back pain and on examination Mr Davie found spinal flexion to be reduced to two-thirds of normal and lateral flexion slightly reduced by pain. X-rays of the lumbar-sacral spine were considered to be normal. Mr Davie diagnosed early degenerative lumbar disc problems or a musculo ligamentous strain. He attributed the back symptoms to Mr Enright’s employment as a carpenter with the Government Aircraft Factory. Mr Davie concluded that the effects of the work injury had ceased and that any back pain the applicant now had was due to constitutional disorders, which were not work-related but had been aggravated, from time to time, by the activities of daily living and his then employment with the Melton Shire Council. Mr Davie was subsequently provided with the results of an MRI scan performed on 21 July 1992 (T28) which showed a mild right paracentral disc prolapse at L4-5. There was no evidence of nerve root compression. Mr Davie’s opinion was not altered as a result of the MRI scan finding.
Dr Geoffrey Littlejohn (T30)
27. Dr Littlejohn, Rheumatologist, examined Mr Enright at the request of Comcare, seeing him on 11 June 1992 and was subsequently asked to comment on the MRI examination. Dr Littlejohn made a diagnosis of probable musculoligamentous damage related to Mr Enright’s work activity. In light of some conflicting physical signs, Dr Littlejohn regarded the persistence of Mr Enright’s back pain as being, in part, due to pain amplification. The applicant did not provide Dr Littlejohn with the history of the work-related injury in 1991. Dr Littlejohn recommended a daily exercise program. Dr Littlejohn did not change his opinion following the MRI report.
Mr Ian Jones, Orthopaedic Surgeon
28. Mr Jones saw Mr Enright on 26 November 2003. Mr Enright provided the following history. He had first experienced back pain in 1972 while working as an apprentice carpenter for the Commonwealth Aircraft Corporation. Following this injury, Mr Enright said he was off work for a few weeks, resting, and his condition resolved. In 1985 he again developed back pain, was off work for a few weeks and received physiotherapy treatment. Mr Enright said he had suffered, since 1985, from ongoing episodes of lower back pain of sufficient severity to require hospitalisation, traction and manipulation in 1987. He reported constant pain in his lower back, aggravated by any physical activity and associated with restricted spinal movements. Mr Jones' examination revealed a reduction in spinal flexion to half the normal range, with retention of normal rotation and minimal restriction of lateral flexion. There were no abnormal neurological findings. Mr Jones reported that plain x-rays of Mr Enright’s spine in 1984 and 1985 were normal and that an MRI scan on 21 July 1992 showed slight protrusion at L4-5 level. Mr Enright did not provide Mr Jones with any history regarding the 1991 back injury. Mr Jones was of the opinion that Mr Enright suffered from lumbar back pain due to L4-5 disc degeneration and attributed this to the work injury of 1976, further aggravated in 1985. Mr Jones advised that the weekly massage regime, while providing temporary relief, was of no real value, and the chiropractic therapy was only indicated for exacerbations of symptoms. He recommended a self-directed, active exercise program and regular swimming, as opposed to the passive massage and chiropractic treatment. Mr Jones believed the effects of the injury were permanent and that there would be a slow deterioration with increasing age.
Report of Mr Russell Miller, Orthopaedic Surgeon (exhibit A1)
29. Mr Miller assessed Mr Enright on 3 March 2005. He had first seen Mr Enright on 11 November 2002, regarding a left knee problem, and had recommended arthroscopic debridement of this joint. Mr Miller obtained a full history of Mr Enright’s back problems dating back to 1972 when he was working as an apprentice carpenter. This episode resolved completely; but he suffered another event in approximately 1984. (The Tribunal notes this event actually occurred in 1985, not 1984). On this occasion he had developed severe back pain while lifting heavy boxes. The symptoms continued and never fully settled following this episode. The applicant told Mr Miller that after an episode in 1991, when he lifted a toolbox from his car, his back pain became more severe. Pain persisted for several weeks and then settled to the previous level. Mr Miller described Mr Enright’s current condition as ongoing low back pain and discomfort radiating to both buttocks. There were no neurological symptoms or signs. Mr Enright was having monthly chiropractic treatment and weekly massage therapy. Mr Enright felt this gave him good control of his symptoms and allowed him to continue working full time. On examination, Mr Miller detected diffuse tenderness and lower lumbar muscle spasm, which restricted movement to two-thirds of the normal range. There was no neurological deficit.
30. Mr Miller ordered a plain x-ray of the lumbar spine, which showed degenerative disease throughout, with significant disc space narrowing at L4-5 and L5-S1 levels. Mr Miller diagnosed degenerative disease, of significant degree, in the lumbar spine, attributed to by his work throughout his life time. The events in approximately 1984 (in fact, 1985) and 1991 had contributed to his current condition. Mr Miller recommended that Mr Enright continue to take analgesics, anti‑inflammatory agents and to undergo physiotherapy and chiropractic treatment once a month.
Report of Dr Clayton Thomas (exhibit A2)
31. Dr Thomas reviewed Mr Enright with particular attention to his then current treatment regime. He was of the opinion that:
Generally speaking passive interventions are not an ideal form of intervention for anyone, however in Mr Enright’s case I think his circumstances are somewhat different. He tells me that he does a daily exercise program for 15 minutes when he gets up in the morning which consists of stretching. He tells me that the treatment enables him to keep mobile and to lessen his pain. He is adamant that he wishes to continue to work for as long as he possibly can, and he feels that the treatment that he has had enables him to do this. I think that under the circumstances where someone is able to work full time, be productive in the community and where treatment can help maintain someone in that position and assist them in staying off any form of Disability Support Pension, then a very strong argument can be had for supporting such passive interventions combined with an active exercise program that he continues to perform.
32. The above opinion was in reference to Mr Enright’s 14 to 15 years of chiropractic treatment, at three to four weekly intervals, and his therapeutic massages on a weekly basis.
Report of Ms Anne Devenish, Masseuse (Exhibit A4)
33. Ms Devenish reported that she first saw Mr Enright when he presented with a severe case of spondylosis and sciatica. She attributed this to the injury of 1985 and there is no mention in the report in 1991. She was of the opinion that the best treatment for Mr Enright was a combination of remedial massage and an extensive stretching program, twice weekly, for his back and legs. She had also suggested swimming, self-stretching, relaxation, breathing exercises and some dietary changes. She had observed that when Mr Enright’s stress levels are high, his back tightens up and his range of movement lessens. She reported that over the past eighteen months (the report was written 21 August 2004) both Mr Enright’s pain tolerance and range of back movement had stabilised having improved from 25% to 75%. With this improvement, Mr Enright was able to continue to work full-time as a Handyman and Carpenter.
Mr Michael Shannon, Orthopaedic Surgeon (Exhibit R1)
34. Mr Shannon diagnosed degenerative lumbar disc disease, which was age‑related but aggravated by employment with the Commonwealth Aircraft Factory, possibly by his further employment with Melton Shire Council and his subsequent self-employment. Mr Shannon obtained a history of the injury in 1984 or 1985 which had been a major episode from which Mr Enright had never fully recovered. Mr Shannon questioned Mr Enright about a WorkCover claim with the Shire of Melton, arising out of the lifting of a heavy toolbox, but Mr Enright denied there was any such claim. With respect to the treatment of the condition, Mr Shannon stated:
Self management should be the aim of treatment and neither chiropractic or massage is appropriate. Neither is providing any more than a temporary benefit. A core stabilising exercise program is the most appropriate way for his to self manage his condition.
Mr Enright’s WorkCover File (Exhibit R2)
35. The WorkCover file details Mr Enright’s claim for worker’s compensation arising from an injury at 12.30pm on 13 May 1991, while he was working for the Melton Shire Council. In the original claim form, he did not declare his previous back injury of 1985, leaving this area of the form blank, and in his claim for permanent disability, he declared that he had never before suffered a back injury.
36. The WorkCover file contains numerous medical reports from Messrs Flaim, Billett and Shaw, who assessed Mr Enright for his WorkCover claim. Mr Michael Flaim, a general surgeon, had obtained a history of an episode of back pain, which had not resulted in any time off work, had been treated by physiotherapy and chiropractic and had resulted in full recovery after a matter of weeks. Mr Flaim had assigned a 10% impairment of the back for compensation purposes. Mr Derek Billett (orthopaedic surgeon) reported that there was no past history of lumbar pain, according to the history he obtained from Mr Enright. Mr Billett diagnosed degenerative lumbar spinal disease and assessed Mr Enright’s impairment, in relation to the lumbar spine, at 20%. Mr Billett also questioned the efficacy of intermittent spells of chiropractic treatment and recommended attendance at a gymnasium and swimming in a heated pool. Mr Michael Shaw (orthopaedic surgeon) did not obtain any history of a back injury or back pain prior to the episode in May 1991. Mr Shaw did not regard chiropractic treatment as being appropriate for Mr Enright.
37. Based on the reports of Mr Billett and Mr Shaw, a permanent impairment of 15% was assessed by the WorkCover authority, and Mr Enright accepted a settlement offer of $7,635.60 in May 1995. The WorkCover authority continued liability for the provision of chiropractic treatment.
relevant legislation
38. The Safety, Rehabilitation and Compensation Act 1988 provides:
4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
...
medical treatment means:
…
(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
…
16 Compensation in respect of medical expenses etc.
(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.
39. In addition, s 118 of the Act states:
118 Double benefits
(1) If:
(a)an employee recovers State workers’ compensation in respect of an injury or the loss of, or damage to, property used by the employee; or
(b)State workers’ compensation is recovered by, or for the benefit of, a dependant of a deceased employee;
compensation is not payable under this Act to that employee in respect of that injury, loss or damage, or to, or for the benefit of, that dependant in respect of the injury that resulted in the death.
(2) If, after any compensation has been paid by a relevant authority under this Act:
(a)to an employee in respect of an injury or the loss of, or damage to, property used by the employee; or
(b)to, or for the benefit of, a dependant of a deceased employee;
any State workers’ compensation is recovered by the employee in respect of that injury, loss or damage or to, or for the benefit of, the dependant in respect of the injury that resulted in the death, as the case may be, the relevant authority may recover the amount of compensation paid by it from the person to whom it was paid in a court of competent jurisdiction as a debt due to the authority.
(3) A relevant authority that has received a claim may require the claimant to give it a statutory declaration stating whether any State workers’ compensation has been paid to or in respect of the claimant in respect of the injury or loss of, or damage to, property, as the case may be, to which the claim relates.
(4) Where a claimant for compensation refuses or fails, without reasonable excuse, to give a statutory declaration under subsection (3), the claimant’s rights to compensation under this Act in respect of the injury or loss of, or damage to, property to which the claim relates, and to institute or continue any proceedings under this Act in relation to that compensation, are suspended until the statutory declaration is given.
(5) Where a claimant’s right to compensation is suspended under subsection (4), compensation is not payable in respect of the period of the suspension.
(6) In this section:
State workers’ compensation means compensation recoverable under a law of a State or of a Territory, or of a foreign country, relating to workers’ compensation.
submissions
Mr Enright
40. Mr Enright submitted that, but for his 1985 injury, for which Comcare had accepted liability, his 1991 injury would not have occurred. Had he been taught to lift properly at the Aircraft Factory, he believed neither of the injuries would have occurred.
The Respondent
41. Ms McMahon identified the decision for the Tribunal as one based essentially on the facts as presented. The injury of 1991 has been well-documented in the WorkCover file and it’s contained medical opinions and Mr Enright had not mentioned the injury of 1985 in the vast majority of the reports. In only one report had he admitted to such an injury, but stated it had totally resolved in a short period of time. If this was the case, then he had recovered from his 1985 injury and did not require the treatment he was receiving. It was submitted that as Mr Enright’s lumbar spine x-ray was normal in 1985 and the MRI study in 1992 showed an L4-5 disc prolapse, this pointed to the disc lesion occurring as a result of the 1991 episode. Thus, Mr Enright’s current treatment related to the 1991 injury.
42. The respondent raised the issue of the applicant’s credibility as a witness, given the varying reports and his failure to notify Comcare of his WorkCover claim and vice versa. In addition, in previous hearings before the Administrative Appeals Tribunal, he had not informed any party or the Tribunal of his 1991 injury. It was only Mr Miller who had obtained a history of both events, and Mr Enright had admitted that he had informed Mr Miller of both events on the advice of a solicitor.
43. The respondent contended that even if there was some contribution from the early injury to Mr Enright’s current low back pain, the treatment he was receiving, in the form of massage for the past 11 years, and chiropractic treatment for the past 14 or 15 years, was not reasonable, in terms of s 16 of the Act (Re Comcare and Watson (1997) 46 ALD 481). In addition, the claim by Mr Enright for payment of the consultation and report of Mr Russell Miller was not for treatment of the particular injury, but in order to obtain a medico-legal report for the purposes of the hearing before the Tribunal (Comcare v O’Brien (1987) 49 ALD 296). The respondent also pointed out that there was no evidence before the Tribunal that Ms Devenish is a registered masseur in the State of Victoria, in order to attract s 4(1) definition of “therapeutic treatment”, as provided in paragraph (d). Nor was there evidence to the same effect with respect to Dr Stewart.
44. The respondent submitted that there was no plan in existence for Mr Enright’s ongoing treatment. No goal had been set and no monitoring was occurring. Mr Enright had not seen a specialist since his last visit to Mr Carter in 1987 and while many medical opinions had been obtained, the recommended treatment by various orthopaedic surgeons had not been pursued (Re Chowdhary and Comcare [1998] AATA 448). Both the chiropractic treatments and the massage provided only temporary relief and had continued for an excessive amount of time. The respondent noted there had been 910 visits to Ms Devenish. Of the reporting medical practitioners, none had recommended massage as a therapeutic treatment, although Dr Clayton Thomas, on the basis of Mr Enright’s reported benefit from both chiropractic and massage therapy, had suggested that this treatment should continue; although he himself did not recommend such treatment.
45. The respondent submitted that the reports of Dr Stewart, the chiropractor, were unreliable as, in his report of 2004 (exhibit A3), he referred only to the 1985 injury and, in contrast, his 1994 report (exhibit R2), referred only to the 1991 injury. The latter report was to the WorkCover authority. In general all medical specialists had rejected the role of chiropractic treatment as being of long term benefit, although Dr Clayton Thomas again considered that given Mr Enright’s statement that he benefited from such treatment, it should be continued. Mr Miller had agreed that chiropractic treatment once a month should be continued.
46. Finally, the respondent submitted that under s 118 of the Act, relating to double benefits claimed under Comcare and State workers’ compensation, Comcare can recover money paid on Mr Enright’s behalf, given that he continues to claim chiropractic treatment from WorkCover Victoria, has accepted permanent disability payment from this authority (which was obtained under a declaration that he had no previous back injury) and his failure to notify WorkCover Victoria of his Comcare payments and Comcare of his WorkCover payments.
Tribunal’s Deliberations
47. Mr Enright perceives the injuries of 1985 and 1991 as separate and unrelated. However, the medical evidence does not support his perception. While in receipt of Comcare payments, he has claimed what is considered to be an aggravation, in 1991, of the pre-existing 1985 injury from WorkCover Victoria. Comcare has paid the cost of 910 episodes of therapeutic massage commencing in 1993, some two years after the 1991 injury, and fifteen years of chiropractic treatment. At Mr Enright’s suggestion, his chiropractor has claimed payment for alternate sessions of treatment from Comcare and WorkCover Victoria. Mr Enright did not inform WorkCover Victoria of his ongoing Comcare compensation, nor did he inform Comcare or the Administrative Appeals Tribunal, at various hearings in the past, of his WorkCover compensation payments. In his evidence before the Tribunal he admitted that he had probably done the wrong thing.
48. Similarly, Mr Enright tailored the history he gave, depending on whether he was being interviewed by a medical specialist for Comcare or WorkCover purposes, and only provided Mr Miller with a full and accurate medical history after being advised to do so by a solicitor. Section 118 of the Act provides for Comcare to recover monies paid for double claims for the same injury.
49. Several general practitioners have provided continuing referrals for chiropractic treatment and massage at Mr Enright’s request, despite his evidence that his general practitioners do not treat or discuss his low back pain and its management with him.
50. Mr Enright has not seen a specialist for treatment since 1987. There is no evidence of ongoing supervision of his treatment program by a doctor and his current treatment regime is determined solely by himself, with some advice from his masseuse and chiropractor (Comcare and Watson).
51. Treatment recommended by medical specialists who have seen him for medico-legal reasons has not been followed.
52. The treatment Mr Enright has received, i.e. massage and chiropractic treatment, provides temporary relief only. There appear to be no long term goals established by his current treaters, other than providing pain relief and maintaining a degree of mobility. The efficacy of this treatment has not been tested by recommended alternative treatment regimes, or by cessation of the current treatment followed by reassessment. Several medical practitioners, such as Dr Littlejohn and Dr Thomas, have queried whether Mr Enright may have a psychological dependence on his current therapies.
53. In Re Chowdhary, the Tribunal placed some limits on the provision of physiotherapy for the relief of pain. At paragraph 53:
These last two mentioned opinions do however point to a problem. Dr Champion speaks of there being a need for “carefully appraised courses” of physiotherapy, but there is no evidence before us to suggest that there has been such an appraisal. In particular, there is no evidence of any plan to have the 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.
54. The Tribunal finds that the duration of massage therapy and chiropractic treatment is excessive; and in light of the very sparse medical support for this treatment, these are no longer a reasonable form of therapy.
55. Mr Enright, at the commencement of the hearing, had enlarged his claim to include the cost of his consultation with and the preparation of a subsequent medico‑legal report by Dr Russell Miller. As this report was prepared solely for medico-legal reasons, and not for the treatment of the injury, this claim is denied on the basis of Re O’Brien.
56.For the reasons given above, the Tribunal affirms the decision under review.
I certify that the 56 [fifty‑six] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
signed: Olympia Sarrinikolaou
Clerk
Date of Hearing: 06 May 2005
Date of Decision: 27 June 2005
Advocate for the applicant: Self represented
Counsel for the respondent: Ms A. McMahon
Solicitor for the respondent: Australian Government Solicitor
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