Gordon and Comcare (Compensation) - [2022] AATA 841

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.
...............................[SGD].........................................
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 321
REASONS 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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gordon and Comcare (Compensation)

Details

AGLC: Gordon and Comcare (Compensation) [2022] AATA 841
Case: [2022] AATA 841
Decision Date: 27 April 2022

CaseChat Overview and Summary

This matter concerned an appeal by Ms Gordon against a decision by Comcare affirming a determination that massage therapy was not a reasonable treatment for her accepted conditions, namely post-traumatic stress disorder (PTSD) and secondary bruxism, chronic gingivitis, neurodermatitis, and tension headaches. Ms Gordon had been receiving massage therapy since 2003, with Comcare having accepted liability for this treatment in 2003 based on a general practitioner's recommendation. Payments for this therapy ceased in 2018, leading to the reviewable decision. The appeal was heard by Deputy I R Molloy P.

The primary legal issue before the court was whether the massage therapy sought by Ms Gordon was "reasonable to obtain in the circumstances" under section 16(1) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). This required the court to consider the costs and benefits of the treatment, as well as its past efficacy and the extent to which it had been undertaken. The court was tasked with evaluating the medical evidence presented by both parties to determine the reasonableness of the ongoing provision of massage therapy.

The court's reasoning focused on the expert medical evidence. While Ms Gordon provided evidence of the perceived benefits of massage therapy for her symptoms, the court gave greater weight to the opinions of Dr Reddan, a consultant psychiatrist engaged by Comcare, over Dr Grotowski, Ms Gordon's treating psychiatrist. Dr Reddan was considered independent and had access to a broader range of material. Both Dr Reddan and Dr Grotowski agreed that massage therapy was not an evidence-based or recommended treatment for PTSD. Dr Grotowski, despite initially supporting Ms Gordon's request in an advocacy role, ultimately did not recommend massage therapy and suggested that Ms Gordon's physical pain might have other causes requiring investigation. The court found that, based on the expert evidence, massage therapy was not reasonable in respect of Ms Gordon's accepted conditions.

Consequently, the court affirmed the reviewable decision dated 14 February 2019, meaning Comcare was not liable for the cost of further massage therapy for Ms Gordon's accepted conditions.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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