Evans and Comcare (Compensation)

Case [2016] AATA 827


Evans and Comcare (Compensation) [2016] AATA 827 (20 October 2016)

Division

GENERAL DIVISION

File Number

2015/4396

Re

Biba Evans

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Senior Member T Tavoularis

Date 20 October 2016
Place Brisbane

The decision under review is affirmed.

..........................[sgd]...............................

Senior Member T Tavoularis

Catchwords

COMPENSATION – Medical Treatment – Therapeutic Relief - previously accepted injury of soft tissue strain to neck – physiotherapy treatment provided for over twenty-six years - compensation for continued physiotherapy ceased – decision under review affirmed.

Legislation

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

Cases

Alamos and Comcare [2014] AATA 629

Holt v Comcare (2007) 94 ALD 576; [2007] FCA 405

Jorgensen and Commonwealth of Australia (1990) 23 ALD 321; [1990] AATA 129

Rope and Comcare [2013] AATA 280

Secondary Materials

Transport Accident Commission and Worksafe Victoria, Clinical Framework for the Delivery of Health Services (June 2012 edition)

REASONS FOR DECISION

Senior Member T Tavoularis

20 October 2016

INTRODUCTION

  1. Biba Evans (“the Applicant”) suffered an accepted ‘soft tissue strain to the cervical spine (neck)’ injury on 15 June 1990 (“the accepted condition”).

  2. The Applicant wants the Tribunal to review Comcare’s (“the Respondent”) decision of 8 July 2015 that the Applicant was not entitled to ongoing compensation for physiotherapy treatment for her accepted condition.

  3. The central issue for determination is whether the Applicant is entitled to compensation for medical treatments, in the form of physiotherapy, pursuant to section 16 of the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”). I am required to take into account whether the Applicant’s physiotherapy is:

    (a)medical treatment for the purposes of section 16 of the SRC Act;

    (b)sought by the Applicant for the accepted condition; and

    (c)considered reasonable treatment in the circumstances.

  4. Absent her accepted condition, the Applicant otherwise presents as a fit, active and capable lady. The original injury giving rise to her accepted condition occurred on 15 June 1990, over twenty-six (26) years ago, while she was lifting a heavy bag as part of her work duties. The Applicant worked as a catering assistant at Qantas Airways at the time of the injury. She eventually resigned from the position on or about September 1995. In that year, this matter initially came before the Tribunal and was resolved by way of redemption for incapacity payments and compensation for medical treatment for the Applicant’s injury.

  5. The Respondent has paid for something in the order of 906 sessions of physiotherapy at a cumulative cost of $42,198.53. This sum excludes the additional component of gym membership fees, which were also paid by the Respondent.

  6. The Respondent reviewed the matter and made a determination on 3 June 2015, to cease payments for physiotherapy treatments with effect from the previous day, 2 June 2015. The Respondent based its decision to cease the payments on the premise that ongoing physiotherapy treatment was no longer reasonable in the circumstances.

  7. On 15 June 2015, the Applicant sought a reconsideration of that decision. On 8 July 2015 the Respondent affirmed its…

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Details
AGLC
Evans and Comcare (Compensation) [2016] AATA 827
Case
[2016] AATA 827
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against a decision to cease compensation for ongoing physiotherapy treatment. The applicant had sustained a soft tissue strain to the neck over twenty-six years prior, for which physiotherapy had been provided for a significant period. The dispute centred on whether continued physiotherapy constituted reasonable and necessary medical treatment for the accepted workplace injury under the relevant legislation.

The court was required to determine two primary legal issues. Firstly, whether the ongoing physiotherapy treatment was "obtained in relation to the injury" as required by section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). Secondly, the court had to consider whether it was reasonable for the applicant to continue to obtain such physiotherapy treatment in the circumstances, particularly in light of the relevant Clinical Framework.

The Senior Member, T Tavoularis SM, found that the totality of the medical evidence suggested that ongoing physiotherapy was unlikely to have any curative effect and would primarily be directed towards managing age-related degenerative changes rather than the original workplace injury. The court noted a lack of positive application of the principles of the Clinical Framework by the applicant's treating medical practitioners to justify the continued treatment. The Senior Member agreed with the respondent's contention that the physiotherapy was not treatment obtained in relation to the injury and was not reasonable to continue obtaining in the circumstances. Consequently, the decision under review to affirm the cessation of compensation for physiotherapy was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In his report of 14 January 2015, Dr McDermott adopts a similar theme to that expressed by Dr Bown, Mr Stevens and Ms Gear. His opinion is that the Applicant’s overall condition is largely attributable to age related degenerative changes. The “short term relief” theme is also adopted by Dr McDermott who considers the Applicant derived “symptomatic relief from ongoing physiotherapy treatment which is appropriate”.[3][3] Exhibit 4, T-documents, T32, Report of Dr Luke McDermott dated 14 Jan 2015, pages 58 and 59.The medical evidence – a comment I predicate my findings as to the totality of the medical evidence on two things. First, the abovementioned elements to meet the requirements of section 16 of the SRC Act. Second, the requirement for any ongoing physiotherapy treatment for this Applicant to meet the requirements of the relevant Clinical Framework. Turning firstly to section 16 of the SRC Act, I have misgivings about and difficulty in supporting any finding that ongoing physiotherapy for this Applicant is suitable or necessary to alleviate the symptoms of her workplace injury that occurred over 26 years ago. Viewed holistically, the totality of her medical evidence seems to be: (a) there being no prospect of ongoing physiotherapy ever having any curative effect; (b) that any further ongoing physiotherapy treatment would be largely directed towards managing expected and inevitable symptoms arising from degenerative changes; with (c) insufficient focus and attention on the implementation of an overall health management plan as an alternate means of improving her condition. Secondly, with reference to the Clinical Framework, none of the Applicant’s treating medical practitioners positively apply the principles of the Clinical Framework when seeking to justify or warrant the continued physiotherapy treatment. Granted, Dr Bown makes reference to the Clinical Framework in his report of 8 May 2015 but does not apply those principles (or any part thereof) to his rationale for ongoing physiotherapy. The overriding theme of the Applicant’s medical evidence is that any ongoing physiotherapy is most likely to be remedial, not curative. As I have read that evidence, none of those medical practitioners properly or adequately apply the clinical principles to adopt any alternate means of symptomatic management other than ongoing and seemingly indefinite physiotherapy (and, to a much lesser extent, gym membership). In my view, this is not the basis on which a decision maker in my position must determine this matter. The Applicant wants the treatment to continue much as it has since 1995. The Respondent contends that (a) compensation for ongoing physiotherapy treatment obtained from 8 July 2015 until the present (and into the future) should be denied to this Applicant; and (b) that the Clinical Framework “is an appropriate benchmark by which the objective reasonableness of medical treatment can be measured”.[4] I agree with the Respondent’s two contentions. [4] Exhibit 5, Respondent’s Amended Statement of Facts Issues and Contentions (SFIC), paragraph [5.14].Legislation

Decision

Reasons for decision

I therefore also agree with the Respondent’s contention to the effect that for the requirements of section 16 of the SRC Act, the claimed physiotherapy:(i)is not treatment ‘obtained in relation to the injury’; and (ii)is not treatment that is reasonable [for this Applicant] to continue to obtain in the circumstances. CONCLUSION I therefore affirm the decision under review.

Ratio Decidendi

Legal Principle Established

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