Evans and Comcare (Compensation)
[2016] AATA 827
•20 October 2016
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
Biba Evans (“the Applicant”) suffered an accepted ‘soft tissue strain to the cervical spine (neck)’ injury on 15 June 1990 (“the accepted condition”).
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.
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.
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.
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.
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.
On 15 June 2015, the Applicant sought a reconsideration of that decision. On 8 July 2015 the Respondent affirmed its determination to cease the payments for physiotherapy. It is the Respondent’s affirmation of 8 July 2015 that is now the subject of review by this Tribunal.
WHAT IS THE MEDICAL OPINION?
From the Applicant’s side I had reference to the following experts reports:
· Dr Mark Bown (General Practitioner);
· Dave Stevens and Russell Smallwood (physiotherapists);
· Dr Luke McDermott (independent Orthopaedic surgeon); and
· Ms Julie Gear (physiotherapist).
From the Respondent’s side I had reference to the Clinical Panel Review report prepared by Mr Papagoras (physiotherapist) on 19 May 2014 and his updated report dated
20 January 2016. Mr Papagroas also provided oral evidence at the hearing.
Mr Harry Papagoras (Physiotherapist)
The Respondent’s decision on 3 June 2015 to cease paying for physiotherapy treatments seems primarily based on the recommendations and findings of the initial Clinical Review Panel[1], lead by Mr Papagoras. He thought the long period of physiotherapy treatment received by this Applicant:
· had not improved her condition to any measurable functional extent;
· had caused her to effectively ignore modification of her overall health management as an alternate means of improving her condition;
· had rendered her virtually reliant on that treatment;
· had caused her to not set any other goals to improve her condition in terms of self-administered therapy at home.
[1] Exhibit 4, T-documents, T40, Clinical Panel Review dated 19 May 2014, pages 75-78.
Mr Papagoras could not point to any independent and credible research supporting the proposition that regular, ongoing and long term physiotherapy is the best method of managing persistent pain. Likewise, having regard to the key messages of the Clinical Framework For the Delivery of Health Services (“the Clinical Framework”), Mr Papagoras opined that lengthy and ongoing physiotherapy treatment was not in the best interests of this Applicant. He thought the provision of regular and lengthy physiotherapy treatment was not consistent with the elements of the Clinical Framework because:
(i)it was not resulting in sustainable improvement;
(ii)it was not in accordance with a biopsychosocial approach to the management of pain;
(iii)it did not empower the Applicant to take on a greater role in self -management;
(iv)it did not appear to have any functional goals; and
(v)it was not evidence based.[2]
[2] Exhibit 8, Report prepared by Mr Harry Papagoras, Physiotherapist Clinical Panel, dated 20 January 2016, page 4.
Dr Mark Bown (General Practitioner)
In his report of 28 February 2014 Dr Bown opines that the regular physiotherapy has minimised the Applicant’s neck and upper back pain. Although noting other symptomatic benefits in terms of pain reduction he does not consider physiotherapy will finally resolve the Applicant’s condition.
On 8 May 2015, Dr Bown opined that ongoing physiotherapy treatment was somehow consistent with the Clinical Framework. He thought ongoing physiotherapy was justified to reach the objective of pain management rather than a finally resolved cure. I think it is notable that Dr Bown, although referring to the Clinical Framework, does not address the principles contained in the Clinical Framework in this report.
On 26 June 2015, Dr Bown further opined that the ultimate objective of the lengthy physiotherapy treatment had always been pain management. Dr Bown notes that “degenerative change is seen in all people of 70 years old…”. He makes reference to an MRI scan dating from 2002 which in his view showed evidence of multi-level disc degeneration in this Applicant. Dr Bown seemingly agitates for ongoing physiotherapy treatment. I find this recommendation tenuous at best because it is, to my mind, somewhat unconvincing to purportedly justify a very long period of subsidised physiotherapy (and ongoing physiotherapy) on the sole basis of it somehow acting as a pain management measure for defined symptoms and symptoms arising from inevitable degenerative factors.
Treating physiotherapist – Mr Dave Stevens
In his report of 28 August 2014, Mr Stevens noted positive outcomes from the long course of physiotherapy mainly in the form of short term resolution of the Applicant’s headaches and improvement in the range of her cervical movement. He thought the physiotherapy only relieved this Applicant for four (4) day periods at a time. He thought ongoing weekly physiotherapy sessions were required to manage her symptoms and reduce the risk of further deterioration.
Treating physiotherapist – Ms Julie Gear
In her report of 30 May 2016, Ms Gear thought, consistently with the findings of Dr Bown and Mr Stevens, that physiotherapy treatments were providing the Applicant with only short term relief but on a consistent basis. She also thought ongoing physiotherapy would not be curative but serve to improve the Applicant’s quality of life. She noted the Applicant’s symptoms have deteriorated in the absence of regular physiotherapy treatments.
Dr Luke McDermott (Orthopaedic surgeon)
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.
WHAT DOES THE LAW SAY?
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
The Respondent’s primary liability to meet the cost of any ongoing physiotherapy treatment derives from section 16(1) of the SRC Act. The amount of those payments is “such amount as Comcare determines is appropriate to that medical treatment”.
Section 4(1) of the SRC Act defines “medical treatment” as “(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner”; and (d) “therapeutic treatment by, or under the supervision of, a physiotherapist… under the law of a State or Territory providing for the registration of physiotherapists…”.
There is a further definition of “therapeutic treatment” in section 4(1) of the SRC Act which includes “an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury” [my italics]. To my mind, the scheme of the Clinical Framework mitigates against any assumption by a decision maker that it is in order to approve a single and seemingly endless mode of treatment of an Applicant’s accepted condition.
The clinical framework guides both medical professionals and decision makers towards a multi-faceted regime of treatment. It alerts one to a range of paradigms – be they biological, psychological or social – from which individual treatments can be conceived into an implemented management plan. It talks about the achievement of functional goals and, depending on the circumstances of a given case, eventual self-management. I cannot accept the simple approval of a treatment regime this Applicant has received on at least 906 occasions for greater that 20 years and which at best, affords her transitory or periodic relief, is what is contemplated and indeed required by section 16 of the SRC Act.
Case law
The trend of the authorities is one of treatment whose purpose is to cure or alleviate an injury. To my mind, this is consistent with my preceding comments about the largely remedial nature of the Applicant’s medical evidence in so far as justification for ongoing physiotherapy is concerned.
Two examples of this appear in the cases of:
(i)Rope and Comcare [2013] AATA 280 at [31] – the Tribunal required the funded therapy to be a “purposeful activity designed, or aimed at, curing or alleviating an injury…” or which otherwise involves “… a person [who] does something in the exercise of his or her skill which is designed to alleviate an injury”.
(ii)Jorgensen and Commonwealth of Australia (1990) 23 ALD 321 at 325[5] – the Tribunal noted that “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 the details of the personal life of an applicant for compensation…”.
[5] Also cited: Jorgensen and Commonwealth of Australia [1990] AATA 129 at [12] (Gray J).
A previous case quite similar to the factual circumstances to the present factual circumstances arose in Alamos and Comcare [2014] AATA 629.[6] There, an applicant who had suffered ligamentous back strain in 2000 received compensation for more than 300 physiotherapy treatments from 2006 to 2014. Deputy President Constance put it aptly when he said:
[6] Which followed the approach adopted by the Tribunal in the cases of Re Popovic and Comcare [2000] AATA 246 and Chowdhary and Comcare [1998] AATA 448.
In considering this requirement, it is necessary to consider all of the circumstances, and not only the beneficial effects experienced by Mrs Alamos. Without intending the list to be exhaustive, some of the factors which may be relevant considerations in the circumstances are:
·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.
There is significant evidence that the provision of long-term physiotherapy is not in the best interest of Mrs Alamos.[7]
[7] Alamos and Comcare [2014] AATA 629 at [23] - [25] (Deputy President Constance).
THE LAW APPLIED TO THIS CASE
Applying those comments to the present facts and with particular reference to the overall theme apparent from her medical evidence, I am not convinced that long-term physiotherapy is in the best interest of this Applicant.
Deputy President Constance placed significant weight (as I do) on the Clinical Framework referenced by the Respondent. He noted that:
One of the stated principles of that framework is to “empower the injured person to manage their injury.” It says in part:
The key measure of treatment effectiveness is the ability of the injured person to manage their condition as independently as possible and participate in activities at home, in the community and at work. Independence does not mean being symptom-free, but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependency on treatment, which reinforces illness behaviour and can lead to persistent pain or long-term disability.[8]
[8] Ibid at [33], quoting the Clinical Framework at pages 9 and 12.
Unpalatable though it may seem, it is necessary for consideration to be given to a determination of whether lengthy and ongoing treatment meets the requirements of a cost-benefit analysis. This analysis essentially involves the comparative cost of the treatment against its therapeutic value. In Holt v Comcare (2007) 94 ALD 576[9] the court (per Justice Mansfield) agreeing with the approach of Justice Stone in the abovementioned case of Rope and Comcare, thought it appropriate to undertake such a cost benefit analysis and made these observations:
… There may be circumstances where treatment is unreasonable because its anticipated therapeutic benefit does not justify the expense involved in the circumstances.
… The extent to which such treatment has been undertaken in the past and the degree of its success may also be relevant…
… There may be cases… where treatment like the proposed treatment which in the past has had therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of the past experience.[10]
[9] Also cited: Holt v Comcare [2007] FCA 405 (Mansfield J).
[10] Holt v Comcare (2007) 94 ALD 576 at [25] and [26] (Mansfield J).
I therefore agree with the contention of the Respondent that the cost of the claimed physiotherapy treatment outweighs the therapeutic benefit derived from the physiotherapy by the Applicant. I endorse the Respondent’s reliance on Mr Papagoras’ opinion that a self-management program would have the same short term benefit to the Applicant as the claimed physiotherapy.[11]
[11] Exhibit 5, Respondent’s Amended SFIC, para [5.13].
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.
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis .....................[sgd]................................
Associate
Dated 20 October 2016
Date of hearing 26 August 2016 Applicant In person Counsel for the Respondent Ms. K Blackford-Slack Solicitors for the Respondent Sparke Helmore Lawyers
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