Gordon and Comcare (Compensation)
[2022] AATA 841
•27 April 2022
Gordon and Comcare (Compensation) [2022] AATA 841 (27 April 2022)
Division:GENERAL DIVISION
File Number: 2019/1071
Re:Catherine Gordon
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President I R Molloy
Date:27 April 2022
Place:Brisbane
The reviewable decision dated 14 February 2019 is affirmed.
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Deputy President I R Molloy
Catchwords
Worker’s Compensation – massage treatment – accepted post-traumatic stress disorder and accepted conditions – whether treatment reasonable to obtain - reviewable decision dated 14 February 2019 affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Alamos and Comcare [2014] AATA 629
Comcare v Holt [2007] FCA 405
Comcare v Rope [2004] FCA 540
Re Jorgensen and Commonwealth (1990) 23 ALD 321REASONS FOR DECISION
Deputy President I R Molloy
27 April 2022
INTRODUCTION
The Applicant, Catherine Gordon, has applied for review of a decision of a delegate of the Respondent, Comcare, dated 14 February 2019 (the “reviewable decision”).
The reviewable decision affirmed a determination dated 31 August 2018, denying liability under s 16(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “SRC Act”) for massage treatment for the Applicant’s accepted post-traumatic stress disorder and secondary bruxism, chronic gingivitis, neurodermatitis and tension headaches (the “accepted conditions”).
BACKGROUND
Ms Gordon, or Cath, as she prefers to be addressed, was born in 1968 and is 54 years of age. She has several tertiary qualifications, including a Diploma in Creative Arts. From 1993 she was employed with the Tasmania Symphony Orchestra.
On 28 April 1996, Cath was exposed to and experienced the horrific events at Port Arthur, Tasmania, known as the Port Arthur massacre. In May 1996 she was diagnosed with post-traumatic stress disorder (“PTSD”) for which she completed a claim for rehabilitation and compensation.
On 4 June 1996, a delegate of the Respondent accepted liability for her PTSD. Cath ceased work in 1996 and has received incapacity payments under s 19 of the SRC Act since then.
On 16 December 2010, a delegate of the Respondent accepted liability for Cath’s bruxism, chronic gingivitis, neurodermatitis and tension headaches on the basis that those conditions were secondary to her accepted PTSD.
Cath has been living in Ballina, New South Wales, since about 2003. She cares for her horse which gives her considerable satisfaction. Since 2009, she has been the musical director of an acapella group, ‘Headliners Chorus’, in Ballina. She has received community recognition for her contribution.
Massage therapy
A delegate of the Respondent accepted liability for massage therapy as treatment for Cath’s PTSD on 10 January 2003 based on the recommendation of her then treating general practitioner, Dr MacDonald.
Cath undertook massage therapy from 2003 to 2018. Initially it was monthly, then fortnightly, and then weekly. Cath says the changes in frequency were not brought about by specific events. She referred to increased thrashing about when sleeping.
Between 3 February 2003 and 29 August 2018 Comcare paid $36,605.00 for 323 sessions of massage. Each session was generally one to one and a half hours.
On 26 July 2018, a delegate of the Respondent notified Cath of an intention to determine the Respondent was not presently liable for massage treatment under s 16 of the SRC Act. This eventually led to the reviewable decision on 14 February 2019.
Cath cannot afford to pay for massage therapy herself. She has received occasional massages from acquaintances since the Comcare payments ceased.
Applicant’s evidence
Cath’s evidence was contained in several written statements. She also gave oral evidence including under cross-examination.
She considers she greatly benefitted from therapeutic massage. She reports it helped her deal with chronic headaches and physiological pain which, she says, directly arise from the PTSD, chronic depression, sleep deprivation and low esteem.
In a letter dated 30 November 2019 she said she relied on massage for pain management and stress release from anxiety.
In a statement dated 8 June 2021, Cath described her daily life with and without remedial therapeutic massage. She described being pain free for two days after remedial massage, not needing to rely on anti-inflammatories, feelings of self-worth, less anxiety, less depression, ability to ride a horse twice weekly, and enhanced ability to enjoy music with the chorus.
ISSUES
Section 16(1) of the SRC Act provides:
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.
Comcare submitted there were two issues, firstly, whether massage treatment is or was obtained in relation to the injury, and secondly, whether the treatment is reasonable for Cath to obtain in the circumstances.
I do not think it can be said that massage treatment was not being obtained in relation to the injury. Cath’s general practitioner, Dr MacDonald, recommended the treatment. Although his reasoning varied over the years, a purpose was to assist with Cath’s PTSD and sequelae.
The question is whether massage is reasonable treatment for Cath to obtain in the circumstances. Assistance can be gained from what has been said by previous courts and tribunals.
In ReJorgensen and Commonwealth (1990) 23 ALD 321, Gray J said the idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are subjective factors related to the injury, not the details of the personal life of the applicant.
In Alamos and Comcare [2014] AATA 629, at [24], the Tribunal thought it was relevant to consider 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; and the cost of ongoing treatment.
In Comcare v Rope [2004] FCA 540, at [17], 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] FCA 405, Mansfield J agreed that the costs/benefit analysis is appropriate, and said the extent to which particular treatment has been undertaken in the past, and the degree of its success, could be relevant considerations.
Medical evidence
There is a substantial amount of medical evidence going to the issue including from
Dr MacDonald, Cath’s treating general practitioner until last year, Ms M Temple
(“Ms Temple”), treating psychologist, Dr K Walker (“Dr Walker”), forensic psychiatrist, and Dr M Scurrah (“Dr Scurrah”), consultant psychiatrist. Dr MacDonald and Ms Temple were not available for cross-examination, although Comcare had requested their attendance. The material obtained from Dr Walker and Dr Scurrah was very limited.
I have obtained considerable assistance from Dr J Reddan (“Dr Reddan”) and
Dr T Grotowski (“Dr Grotowski”). Dr Reddan, a consultant psychiatrist, has provided several reports since October 2019 as an expert witness engaged by Comcare. Dr Grotowski is also a consultant psychiatrist, and has been treating Cath since late last year. Dr Grotowski provided a report dated 14 February 2022.
Dr Reddan and Dr Grotowski are specialists in the relevant field, they have provided comprehensive reports, and they were each available for cross-examination although, as it happens, Cath’s representative did not have any questions for Dr Reddan.
In the end I thought there was substantial agreement between Dr Reddan and Dr Grotowski. Where there was disagreement, I prefer Dr Reddan’s evidence. That was because she was independent, whereas Dr Grotowski frankly admitted she had adopted, to some degree, an advocacy role for her patient. Secondly, Dr Reddan had access to material, including in relation to Cath’s treatment over the years, that Dr Grotowski did not have.
Although Dr Grotowski ended her report by saying that she supported Cath’s request for a return to massage treatment, it was clear that this was expressed in her advocate’s role. Elsewhere, including in cross-examination, Dr Grotowski said she thought Cath, until 2018, had not been provided appropriate treatment for PTSD and sequelae. She did not include massage therapy as appropriate treatment.
Dr Grotowski did not place any reliance on Dr MacDonald’s opinions. She thought he lacked objectivity and was not properly qualified to give advice on treatment of PTSD. She thought Cath should have been referred to a psychiatrist. According to Cath, Dr MacDonald’s view was that a psychiatrist or psychologist would not assist her.
Dr Grotowski said that massage was not an evidence-based or recommended treatment for PTSD. She would not recommend treatment which was not evidence-based. Dr Grotowski had not recommended, and was not considering recommending, massage therapy. She thought Cath’s neck and back pain could have physical causes which should be investigated through her new general practitioner.
Dr Reddan assessed Cath on 4 September 2019. She has provided reports dated 8 October 2019, 5 January 2020, 13 June 2021 and 15 March 2022. As I have said, Dr Grotowski did not have all the material available to Dr Reddan and only first saw Cath in late 2021. With those limitations she did not disagree with Dr Reddan’s general conclusions.
On 8 October 2019, Dr Reddan reported there is no evidence-base for the use of massage in treatment of PTSD generally or specifically in Cath’s circumstances. As Comcare submits, in Dr Reddan’s view massage is not curative of psychological conditions; there was no evidence of any change in Cath’s psychiatric disorder arising from weekly massage; in contrast to massage, there is evidence that regular exercise and activity is beneficial in the management of anxiety and depressive disorder; there is no evidence-base for weekly massages maintaining the status quo of psychiatric disorders; massage has not empowered Cath to manage her PTSD in the past and there is no evidence that it would do so in the future; weekly massage would not enable Cath to optimise function, participation or increase her capacity for work; and the use of massage as treatment is not supported by the best available research evidence for psychological conditions.
On 5 January 2020, Dr Reddan reported tension headaches can be a symptom of psychiatric conditions and often improve with more effective management of the psychiatric condition; in contrast to massage, effective anxiety management techniques are likely to reduce symptoms of arousal including tension headaches; and that Cath should be treated by a psychiatrist.
In a report dated 15 March 2022, Dr Reddan reiterated that massage is not an evidence-based treatment for any psychiatric disorder; it is unlikely to affect the natural history or pathophysiology of any underlying somatic condition of which pain is a symptom; and any benefit is non-specific in nature and may well have a strong placebo component.
I accept the evidence of Dr Reddan. Although Cath has reported benefits from massage, there is no evidence of an objective, significant or enduring improvement of her functioning from a psychiatric perspective. The benefits reported from massage are short-term, such as a reduction in physical pain, but are not clearly related to the Cath’s accepted conditions.
After undertaking in excess of 300 sessions of massage therapy, and an increase in frequency from once a month to once a week, there is no evidence of any long term or curative effect to her accepted conditions. The cost of massage therapy is not insignificant. On a cost/benefit analysis the therapy is not reasonable.
CONCLUSION
Having regard to all the matters referred to above, I am satisfied that massage therapy is not reasonable in respect of the Applicant’s accepted conditions.
DECISION
Consequently the reviewable decision dated 14 February 2019 should be affirmed.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy
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Associate
Dated: 27 April 2022
Dates of hearing: 12 and 13 April 2022 Advocate for the Applicant: Ms Brenda Gordon Counsel for the Respondent: Mr Ben McMillan Solicitors for the Respondent: Mr Jamie Watts
Australian Government Solicitor
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