Farrugia and Comcare

[2006] AATA 438

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 438

ADMINISTRATIVE APPEALS TRIBUNAL      )

)Nos   N2004/414 N2006/24

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NICOLA FARRUGIA

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr M Thorpe, Member 

Date22 May 2006 

PlaceSydney

Decision The decisions under review are affirmed.

..............................................

Ms N Bell
  Presiding Member 

COMPENSATION – Claim for Medical Treatment – Accepted Condition – Non Specific Forearm Pain – Claim for Complementary Type Therapies – Reasonableness of Treatment – Treatments Found Not Reasonable – Medical Support for Therapy not Significant Minority – Decisions Under Review Affirmed

Safety, Rehabilitation and Compensation Act 1988

Re Jorgensen v Commonwealth of Australia (1990) 23 ALD 321

King v Comcare AAT No  13350 [1998] AATA 822

Kentish and Telstra Corporation Ltd [1999] AATA 661

REASONS FOR DECISION

22 May 2006 Ms N Bell, Senior Member
Dr M Thorpe, Member       

1.Ms Farrugia began working with the Department of Defence as a Climatologist/Oceanographer.  Her work involved the manipulation of computer graphics requiring heavy use of a mouse.  In June 2001, Ms Farrugia developed pain in her arms and hands.  After consulting her General Practitioner, she was placed on modified duties.  Comcare accepted liability for “synovitis and tenosynovityis (bilateral)” and she continued on light duties.

2.Ms Farrugia has had physiotherapy, taken anti-inflammatory medication which caused some side effects, used wrist splints and undertaken a work conditioning program that included gym attendance.  She has also undertaken a pain management program.  Comcare paid for these treatments.  However, in early 2003, Ms Farrugia began consulting Dr Myers, General Practitioner, who recommended she take Lyprinol, Omega 3, Arthro Aid and sports gel (“the complementary medicines”).  Comcare has refused to meet the cost of these preparations on the basis that they do not constitute “treatment that it was reasonable for the employee to obtain in the circumstances”.  This is the first decision under review.

3.The second decision under review concerns the classification of Ms Farrugia’s condition.  At the commencement of the hearing it became clear that the correct diagnosis of the condition suffered by Ms Farrugia was a relevant issue in the proceedings.  While liability had been accepted for “synovitis and tenosynovityis (bilateral)”, Ms Farrugia sought to have the question of reasonable treatment considered in the context of fibromyalgia or chronic regional pain syndrome.  Following a request made by Ms Farrugia for “bilateral chronic regional pain syndrome” to replace the initial diagnosis of “synovitis and tenosynovityis (bilateral)”, Comcare initially determined not to change the classification of the compensable condition but on review decided to reclassify the condition as “pain in limb (unspecified)”.

issues

4.The primary issue in this application is whether the preparations listed above constitute “medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances)” (s. 16(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act)).   The dispute in this application centres particularly on the question of whether the preparations are treatment that it is reasonable for Ms Farrugia to obtain.  There is no dispute that the preparations amount to “treatment” within the meaning of the Act.

5.The leading decision on this question is that in Re Jorgensen and Commonwealth of Australia, (1990) 23 ALD 321, in which Gray J characterised the relevant test as an objective one. That decision was applied by the Tribunal in King v Comcare AAT No  13350 [1998] AATA 822, in which Deputy President Blow said that if a form of treatment is regarded by the majority of the medical profession as controversial but a “significant minority” advocates the treatment, then it may be considered to be reasonable medical treatment.  The Tribunal considered that the question of whether a particular form of treatment in particular circumstances is sufficiently supported by the medical profession as to be considered reasonable is a question of degree.

6.As to the question of the correct diagnosis of Ms Farrugia’s condition, this is only relevant, for the purposes of these applications, to the issue of the reasonableness of the treatment.  Following expert medical evidence the parties agreed, for these purposes, that Ms Farrugia currently suffers from synovitis or tenosynovitis.

is the treatment reasonable?

7.Ms Farrugia gave evidence of the history of her condition and the various treatments she has undertaken since the onset of her pain in mid 2001.  Treatment has included anti inflammatory medication which produced side effects of diarrhoea, heartburn and stomach pain; physiotherapy; anti inflammatory gel which produced dry and itchy skin; weights exercises, which she said has helped her and which she continues to do; and a pain management program.  However, Ms Farrugia said she has obtained the most relief from her pain from a combination of complementary medicines recommended by Dr Myers in early 2003.  These were:

(a)Lyprinol 50

(b)Arthro Aid Direct

(c)Reflux Free Omega 3

(d)Sports Gel

8.Ms Farrugia said she obtained immediate relief from the cream and after taking the preparations for about two months noticed a significant improvement in her condition.  She said she decided to “test” the effectiveness of these complementary medicines and in about mid 2003 stopped taking Lyprinol.  She said within a week she noticed a significant increase in her level of pain and after about two weeks her pain became much worse.  When she began to take Lyprinol again she noticed her pain had decreased in two weeks.  In cross examination, Ms Farrugia conceded this says nothing about the role of Omega 3 in relieving her pain but she said she recently increased her dose of Omega 3 and her pain improved significantly.

9.Dr Shenstone, Rheumatologist, who had seen Ms Farrugia after referral from general practitioner, Dr Myers, diagnosed chronic regional pain syndrome.  He considered Ms Farrugia had no inflammation, this being a difference between chronic regional pain syndrome and tenosynovitis.

10.Dr Shenstone took a pragmatic view of the reasonableness or appropriateness of the complementary medicines, saying that, even if Ms Farrugia was taking sugar pills, “if they are helping the patient they are helping the patient”.  He added that there are no studies on the effects of these complementary medicines on chronic regional pain syndrome.

11.Dr Sydney Smith, General Practitioner with a PhD in Nutrition Medicine, said his diagnosis is “chronic pain disorder consistent with a fibromyalgia problem as an underlying disorder”.  He noted a number of areas of pain including legs, neck and shoulder in addition to her forearms.

12.Dr Sydney Smith conceded that fibromyalgia is not an inflammatory process, but noted that there are two types of inflammation: gross inflammation and micro inflammation.  He suggested that fibromyalgia may involve micro inflammation or microcirculatory compromise.

13.Dr Sydney Smith agreed there have been no clinical outcome trials concerning the therapeutic use of the complementary medicines by patients with chronic regional pain syndrome or fibromyalgia.  He said, however, that there are associated studies that look at the effect of Omega 3 fatty acids, Glucosamine and Lyprinol on a range of physiological factors that influence inflammation.  He noted that these studies are not clinical outcome studies but, rather, biophysiological studies that can be extrapolated from for clinical purposes.

14.Dr Sydney Smith’s opinion is summarised in his report of 21 April 2005:

“Ms Farrugia has Chronic Regional Pain syndrome and probable Fibromyalgia syndrome.

I consider that the weight of scientific research establishes the occurrence of multiple causal pathophysiological mechanisms in patients with Chronic Regional Pain syndrome and Fibromyalgia syndrome.

I consider that there is clear scientific evidence that supports the beneficial modulatory effect of glucosamine, omega-3-fatty acids and Lyprinol on these pathophysiological mechanisms.

I conclude that Dr Myer’s therapeutic regimen does constitute “medical treatment” prescribed for the specific purpose of beneficially modulating these pathophysiological mechanisms and alleviating Ms Farrugia’s work related illness.

Thus, I conclude Dr Myer’s prescription of Arthro Aid (glucosamine), omega-Fatty Acids and Lyprinol is logically and medically “reasonable … in the circumstances”.

15.Dr Whittaker, Consultant Rheumatologist, considered Ms Farrugia suffers from fibromyalgic syndrome which he described as a spectrum disorder involving modulation of one’s responses to normal pain stimulae.  He said it is not a nutritional disorder and any such opinion is not supported by the medical literature. 

16.Dr Whittaker said most of the medical profession considers fibromyalgia is not a disease of the tissue and Dr Sydney Smith is alone, in the medical fraternity, in his view that there is a pathological cause of the condition.  He said the extrapolation sought to be made by Dr Sydney Smith is without foundation.  He allowed, however, that Omega 3 fatty acids may assist with osteoarthritis, but noted that Ms Farrugia does not have that condition.

17.Dr Stevenson, Consultant Physician, considered Ms Farrugia suffers from non specific forearm pain.  He said he found no inflammation.  He also agreed there have been some clinical outcome tests concerning the use of the complementary medicines for osteoarthritis but noted that Ms Farrugia does not have osteoarthritis.

18.Dr Stevenson agreed there is a difference of opinion in the medical community as to what, if any, pathophysiological phenomena cause non specific pain.  However, he did not consider that a significant minority of the medical profession recommend the complementary medicines.  He said the significance of such a minority is determined by both quantity and quality and he referred to practitioners with specialist qualifications, none of whom he considered would recommend them, and to the majority of general practitioners who he considered would also not recommend them.

19.Much was made, in this application, of a large number of articles referred to by Dr Sydney Smith and articles referred to by Dr Whittaker.  Some of the articles dealt with the use of the complementary medicines for osteoarthritis and rheumatoid arthritis and reached positive conclusions.   However, none of the articles dealt specifically and positively with the use of the complementary medicines for either fibromyalgia or chronic pain syndrome.   Dr Whittaker annexed to his report articles dealing with the management of fibromyalgia, but none of these considered the use of the complementary medicines in that management.

consideration

20.Mr Perry, for Ms Farrugia, submitted that the absence of research evidence proving the unreasonableness of the use of the complementary medicines for the treatment of fibromyalgia or chronic pain syndrome leaves open the possibility of the reasonableness of that treatment.

21.As to the question of whether a significant minority of the medical profession advocates the treatment of fibromyalgia or chronic regional pain syndrome with the complementary medicines, Mr Perry submitted that there is controversy within the medical profession as to whether fibromyalgia has a pathophysiological origin and that those who consider that it does amount to a significant minority.  He then urged us to regard the extrapolation made by Dr Sydney Smith (that the complementary medicines beneficially affect that pathology) as being a view shared by a significant minority of the medical profession.

22.Even if we were to accept the first limb of Mr Perry’s argument (concerning the pathophysiology of the conditions), we cannot accept his contention that a significant minority of the medical profession advocates the treatment of that pathophysiology with the complementary medicines.  In reaching this conclusion we are mindful, in particular, of the evidence of Dr Stevenson, who considered a significant minority to be determined not only by the quantity of medical opinion but also the quality of that opinion.

23.In this regard, we heard evidence from three specialist medical practitioners, all experienced in the treatment of fibromyalgia and chronic pain syndrome, and none of whom advocated the use of the complementary medicines in that treatment.  Dr Shenstone, we note, did not object to that use, but only on the pragmatic basis of a placebo effect.  We must note that, by contrast, Dr Sydney Smith is medically qualified as a general practitioner and Dr Myers, who recommended the complementary medicines, is also a general practitioner.  This goes to the question of the quality of opinion and we note, in that regard, the evidence of Drs Whittaker and Stevenson that no specialist practitioners would advocate the treatment.  Other than the evidence of advocacy of the treatment by Drs Myers and Sydney Smith, there was no evidence of such advocacy by other general practitioners.

24.Mr Perry referred us to the decision of the Tribunal in Kentish and Telstra Corporation Ltd [1999] AATA 661 which concerned the treatment of degenerative disc disease with vitamin supplements. We consider that, as the Tribunal itself explained, that decision turned on its facts. The Tribunal found that the supplements were of benefit to the applicant and that the prescription of the supplements in such cases is supported by a minority of the medical profession. In this case, we have no reason to doubt Ms Farrugia’s honesty in her perception of the benefits accruing from the complementary medicines. However, we are mindful that she also persists with a program of strengthening exercises, which is one of the recommended mainstream treatments for her condition, and that the “test” she underwent in relation to the efficacy of the medicines was limited to the Lyprinol and did not extend to the other medicines she takes.

25.On this basis, we do not find that a significant minority of the medical profession advocates the treatment of either fibromyalgia or chronic regional pain syndrome with the complementary medicines.  It follows that we conclude that the treatment is not reasonable for Ms Farrugia to obtain in the circumstances.

26.As to the classification of Ms Farrugia’s condition, we consider the classification adopted on the basis of Dr Stevenson’s opinion is appropriate.  We are led to this conclusion by the divergence of opinion between Dr Shenstone (chronic regional pain syndrome) and Dr Whittaker (tending towards fibromyalgia syndrome) and Dr Stevenson’s very thorough discussion, in his report of 24 November 2005, of the diagnostic criteria for chronic or complex regional pain syndrome and fibromyalgia with reference to the American Medical Association Guidelines to Permanent Impairment, 5^th edition, and his reference to the British Orthopaedic Association recommendation of the term “non specific forearm pain”.  He described that term as “very similar to what the College of Physicians recommended as regional pain syndrome.  It means essentially the patient has complained of pain, but there is not specific pathology.”  For these reasons we consider the Respondent’s classification of the condition as “pain in limb (unspecified)” to be correct.

decision

27.The decisions under review are affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr MEC Thorpe, Member.

Signed:         .........[Linda Blue]     .........................................
  Associate

Dates of Hearing  3, 4, 5 April 2006
Date of Decision  22 May 2006
Counsel for the Applicant         Mr M Perry
Solicitor for the Applicant          Slater & Gordon
Counsel for the Respondent     Mr B Kelly
Solicitor for the Respondent     Phillips Fox