Graham and Comcare
[2007] AATA 1715
•29 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1715
ADMINISTRATIVE APPEALS TRIBUNAL )
) A2006/56
) A2007/30
GENERAL ADMINISTRATIVE DIVISION ) Re TANJA GRAHAM Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date29 August 2007
PlaceCanberra
Decision The decisions under review are set aside and in place thereof the Tribunal decides that:
(a) liability to compensate Ms Graham for medical treatment expenses in relation to the left ankle injury she suffered on 14 October 2003 did not cease on 25 August 2004 or on 15 August 2005; and
(b) the pain management program and intra-articular injections she obtained from Dr Speldewinde were medical treatments in relation to her left ankle injury that it was reasonable for her to obtain in the circumstances.
..............signed........................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - left ankle and psychological injury - medical treatment - intra-articular injections - pain management program - patient followed specialist medical advice – benefits obtained – cost - objective test of reasonableness - treatment was reasonable for the employee to obtain in the circumstances - decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 16, 67
Comcare v Watson (1997) 46 ALD 481
Bashar v Comcare (2002) 69 ALD 784
Re Jorgensen & Commonwealth (1990) 11 AAR 543
Comcare v Rope [2004] FCA 540
REASONS FOR DECISION
29 August 2007 Mr S. Webb, Member 1. Tanja Graham was attacked by a student in the course of her employment as a teacher. She suffered an injury to her left ankle and a psychological injury, and claimed compensation. Her claim was accepted. Subsequently she claimed compensation for specific medical treatment expenses. However, her claims relating to a pain management program and intra-articular injections to her left ankle were rejected by primary determination and on reconsideration. Those matters now rise for review.
2. In October 2003, Ms Graham was employed as a Special Teacher’s Assistant by the ACT Department of Education, Youth and Family Services. Thus she is an ‘employee’ within the meaning of s.5 of the Act. It is not disputed that Ms Graham suffered an injury to her left ankle on 14 October 2003 in the course of her employment in relation to which Comcare accepted liability under s.14 of the Safety Rehabilitation and Compensation Act 1988 (the Act). Nor is it disputed that the pain management program and the intra-articular injections Ms Graham obtained from Dr G. Speldewinde constitute ‘medical treatment’ for the purposes of s.4 and s.16 of the Act. I will proceed on that basis.
3. There are two matters for determination. The first is whether the effects of Ms Graham’s left ankle injury ceased on or before 25 August 2004 or 15 August 2005. The second is whether the pain management program and the intra-articular injections she obtained from Dr Speldewinde in 2004 and 2005 are medical treatments in relation to the left ankle injury that it was reasonable for Ms Graham to obtain in the circumstances.
4. Considering all the material placed before me and the oral evidence, I make the following factual findings. In the course of her employment on 14 October 2003, Ms Graham was attacked by a student wielding a Stanley knife in an art room. During the attack the student lunged at her, hitting her glasses with the knife. Ms Graham moved backwards to avoid the blow and grasped at a trolley with her left hand. Her evidence is that the trolley moved under her weight and “the next thing I remember I was standing looking at the student across a desk.” Ms Graham had no recollection of any physical injuries immediately after the attack, and returned to her duties. Later that day she “lost it” and went home “very upset.” The following day she returned to the school, but was unable to continue after 3 hours. She returned home and went to sleep in the lounge. Later that day her young son drew her attention to her left leg, which was “swollen, red, veins bulging from the knee down, round the ankle was worst”. She attended the Canberra Hospital Accident and Emergency Department. Her left leg was bandaged and she obtained analgesic medication. Ms Graham’s evidence was that her left leg and ankle were sore, especially when touched, but the pain was not excruciating. On 17 October 2003 she consulted her general practitioner, Dr Somasundaram, who recorded “swollen L ankle” “O/E possible: soft tissue injury L/S ankle.”[1] Dr Somasundaram certified that she was unfit for work as a result of a “work related incident – stressed and possibly twisted L/S ankle – bruising only.”[2]
[1] Exhibit A7.
[2] AT3.
5. On 30 October 2003 Ms Graham lodged a claim for compensation in relation to “work related incident, stressed & twisted left ankle,”[3] describing her claimed injuries as “swollen (L) ankle, some bruising, lots of pain, very difficult to walk, feelings of sadness and lots of crying, very little sleep.”[4]
[3] AT4 folio 6; AT4 folio 8; AT5 folio 12; and AT6 folio 15 refer.
[4] AT4 folio 7.
6. On 12 November 2003, Comcare accepted liability pursuant to s.14 of the Act in relation to “anxiety state” and “bruise – ankle (left).”[5] Subsequently Comcare accepted liability for certain medical treatments in relation to the left ankle injury, including diagnostic imaging and consultations with her treating doctors. On 2 December 2003, Dr B. Flynn reported “quite marked synovitis arising within the talonavicular joint” and “an abnormality of the deep aspect of the tibialis posterior tendon”, and “ Using ultrasound guidance I have infiltrated the region of the sheath tear and the talonavicular joint with a mixture of Celestone Chronodose and local anaesthetic.”[6] On 5 December 2003, Dr Paoloni “injected 2mls celestone and 5ml local anaesthetic into the pre-Achillies space with 30% relief of pain.”[7] Ms Graham’s evidence is that these procedures were not effective in providing relief from symptoms and, in fact, increased the pain in and around her left ankle. Ms Graham continued to complain of symptoms of pain and swelling in her left ankle and adjacent areas. On 12 December 2003, Dr J. Price observed a small quantity of fluid in the talocrural and subtalar joints that he considered to be normal and reported a normal MRI examination.[8]
[5] AT12 and AT13.
[6] Exhibit A5.
[7] Exhibit A2, 5 December 2003.
[8] AT28 folio 40.
7. Ms Graham’s left ankle pain symptoms had not resolved when she was examined by Dr P. Miniter (orthopaedic surgeon) on 6 February 2004 on referral by Dr Paoloni. However, Dr Miniter was unable to provide an orthopaedic explanation for her complaints of pain and suggested referral to a pain management physician.[9] Dr Miniter reported to Comcare[10] and suggested referral to a psychiatrist.[11] On 30 January 2004, Dr Murphy referred Ms Graham to Dr G. Speldewinde (Consultant in Rehabilitation, Pain and Musculoskeletal Medicine) for medical treatment.[12] On 23 February 2004, Dr Speldewinde reported that Ms Graham described symptoms in “around the Achilles paratenon wall laterally” and “deep in the region of the tarsal tunnel”. He reported “marked allodynia around the lateral malleous, and tenderness in the same region, particularly in the region of the plantar facia and superiorly”, and noted “posterior tibial tendinopathy on ultrasound and bone scan with talonavicular synovitis”. Dr Speldewinde claimed payment in the amount of $383.00 from Comcare for treatment provided to Ms Graham, including a “joint injection”, purportedly on 30 March 2003,[13] although there is no corresponding clinical note to confirm such treatment. The claim was not paid.
[9] AT41.
[10] AT42.
[11] AT49.
[12] Exhibit A3.
[13] AT113 refers.
8. On 2 April 2004, Dr Speldewinde noted that Ms Graham “feels better no ∆ pain.”[14] On 21 April 2004, Dr Speldewinde recommended that Ms Graham undergo a Pain Management Program.[15] On 22 April 2004, Comcare informed Ms Graham of its intention to “cease liability” in relation to her accepted claim for “bruised ankle – left.”[16] On 23 April 2004, Dr Speldewinde agreed with Dr Miniter that there was no orthopaedic cause for Ms Graham’s left ankle pain.[17] On 18 May 2004, Ms Graham commenced a Pain Management Program that concluded on 28 June 2004. On 3 June 2004, in reference to Ms Graham’s “accepted claim for anxiety state (Unspecified)” Comcare accepted liability for time off work, pain management counselling, an exercise program, and analgesic and antidepressant medications.[18]On 14 July 2004, Dr Speldewinde administered “a left ankle intra-articular injection with cortisone and a peri-tendinous injection at the tibialis anterior”[19] and a further similar injection on 18 August 2004. However, on 25 August 2004, Comcare determined that “there is no current liability for any form of medical treatment under section 16 of the Act for your left ankle condition.”[20] Dr Speldewinde administered further injections to Ms Graham’s left ankle and adjacent areas on 1 February 2005, 3 March 2005, 3 June 2005 and 9 September 2005.[21]
[14] Exhibit A6.
[15] AT56 folio 78.
[16] AT59 folio 82.
[17] AT60 folio 83.
[18] AT76 folio 111.
[19] Exhibit A1, 14 July 2004.
[20] AT90 folio 128.
[21] Exhibit A6 refers.
9. On 15 August 2005, Comcare returned receipts for medical treatment by Dr Speldewinde[22] to Ms Graham on the basis that “there is no present liability in respect of your left ankle.”[23] On 15 September 2005, Ms Graham requested reconsideration of that decision.[24] On 13 March 2006, Comcare accepted Dr Miniter’s opinion that the injury had “completely resolved” and decided to affirm the decision dated 15 August 2005 on the basis that Ms Graham “does not require medical treatment for the left ankle injury sustained on 14 October 2003 and therefore it is not reasonable within the context of section 16, for her to obtain same.”[25]
[22] AT113 refers.
[23] AT128 folio 185.
[24] AT133 folio 193.
[25] AT164.
10. In Comcare’s submission, for medical treatment to be reasonable for the purposes of s.16 of the Act it must be in relation to an injury under the Act. In Ms Graham’s case, Comcare says, her left ankle injury completely resolved prior to February 2004, when she was examined by Dr Miniter, and did not, therefore, require any further medical treatment after that time. Thus, in Comcare’s submission there was no present liability to compensate Ms Graham for medical treatment expenses in relation to her left ankle injury on 25 August 2004 or on 15 August 2005. Comcare asserts that the medical treatments she obtained from Dr Speldewinde in the form of a pain management program and intra-articular left ankle injections are not medical treatment that it was reasonable for her to obtain in relation to an injury under the Act.
11. As will appear, I do not agree.
12. Comcare is liable to pay compensation in respect of medical treatment obtained in relation to an injury (subs 4(1) of the Act) if it was reasonable for the employee to obtain the treatment in the circumstances (subs 16(1)). Plainly enough, medical treatment obtained by an injured employee that is not in relation to an injury is not compensable under the Act. The test of reasonableness applies at the time the treatment was obtained and is directed to the employee obtaining the treatment: “…being treatment that it was reasonable for the employee to obtain in the circumstances.”[26] Thus, as it is agreed that the injections and the pain management program were ‘medical treatment’ under the Act, three matters must be determined:
(a)Did Ms Graham’s left ankle injury resolve on or before 15 August 2005?
(b)Was the treatment Ms Graham obtained ‘in relation to’ an injury under the Act?
(c)Was it reasonable for her to obtain the treatment in the circumstances?
[26] Section 16(1) of the Safety, Rehabilitation and Compensation Act 1988.
Did Ms Graham’s left ankle injury resolve on or before 15 August 2005?
13. As will appear, I am reasonably satisfied that Ms Grahams left ankle injury did not resolve or cease to have effect prior to February 2004 or 15 August 2005 but was in both cases then ongoing and manifest by symptoms of pain.
14. Ms Graham’s evidence, which was not seriously challenged, is that from 15 October 2003 to at least September 2005 she suffered persistent fluctuating symptoms of pain, as well as swelling and tenderness from time to time, in and around her left ankle that were aggravated by activity. That evidence, which I accept, is supported by contemporaneous medical evidence and the histories taken from her by medical practitioners on subsequent examination.
15. Evidence was led concerning the delayed experience of left ankle symptoms after the incident on 14 October 2003, although what is to be made of such evidence is not clear. As it appears to me the left ankle injury that Ms Graham suffered was described by bruising, swelling and pain in the region of her left ankle. The apparent discrepancy between Dr Somasundaram’s clinical note on 17 October 2003[27] and the medical certificate he provided on that day (referring to “bruising only”)[28] is not explained, and the doctor was not called or required for cross examination. Ms Graham does not recall the specific details of precisely what occurred after she lunged for the trolley in order to avoid the student’s attack. Perhaps surprisingly, she did not notice anything wrong with her left leg until her young son drew her attention to it the following day. I am not able to determine with any certainty the mechanism by which the onset of left ankle symptoms, or Ms Graham’s experience of them, was delayed by more than 24 hours after the incident in question. There is no evidence that Ms Graham suffered from left ankle or leg symptoms prior to the incident, but she has complained of symptoms in her left ankle region since 15 October 2003. Without evidence of other cause, it is more likely than not that the symptoms of left ankle pain, swelling and bruising from 15 October 2003 were the result of an injury to her left ankle that occurred on the previous day, even though the precise mechanism of injury is not apparent on the evidence before me.
[27] Exhibit A7.
[28] T3 folio 4.
16. Ms Graham’s left ankle pain symptoms had not resolved when she was examined by Dr Miniter on 6 February 2004, but the Doctor found no physical pathology to explain her complaints or that would warrant surgical intervention. However, that was not the end of the matter for Ms Graham, who continued to complain of left ankle pain and other symptoms. Dr Miniter’s evidence does not compel any finding other than that he did not find any orthopaedic explanation for Ms Graham’s symptoms. I am not persuaded by his conclusion that Ms Graham’s left ankle injury had completely resolved by 6 February 2004, and prefer the evidence of Dr Speldewinde and Mr J. Powell, exercise physiologist.[29] Ms Graham’s left ankle symptoms were then ongoing. At the time, Dr Miniter suggested referral of Ms Graham to a pain management physician. That is what occurred: Dr Murphy referred her to Dr Speldewinde, who treated her over an extended period. Dr Speldewinde is a specialist in rehabilitation and pain management whose expertise in these areas was accepted by Dr Miniter and Professor Nade. In these circumstances Dr Speldewinde’s analysis is preferred to that of Dr Miniter.
[29] AT51 refers.
17. I accept that Ms Graham’s case is not one that was amenable to an easy diagnosis in February 2004, and that there is disputation concerning the precise mechanism and aetiology of the symptoms of which she complained at that time. Much of Comcare’s case before me went to medical issues concerning pathology and diagnosis. However, as it appears to me, Ms Graham’s complaints of persistent fluctuating left ankle pain and other symptoms from 15 October 2003 were not seriously challenged. There is no evidence that her complaints of pain over a long period were fabricated or exaggerated. Nor is there compelling evidence to suggest that the pain symptomatology ceased prior to her undertaking the pain management program or obtaining injections to her left ankle area in the period from July 2004 to September 2005. I am reasonably satisfied that it did not.
18. Comcare asserts that Ms Graham’s complaints of pain were inconsistent, being located at various specific sites in and around her left ankle and foot. Plainly enough, on the medical evidence, Ms Graham complained of symptoms and obtained treatment from Dr Speldewinde at various specific locations in and around her left ankle over time. Professor Nade gave evidence that such disparity of symptoms and treatment is not consistent with any physical pathology or diagnosis posited by Ms Graham’s treating doctors, and is not consistent with any physical injury as a result of the incident on 14 October 2003. However, that evidence does not establish that the symptoms were not real. Nor does it explain their origin and persistence from 15 October 2003.
19. Professor Nade gave very detailed and helpful evidence drawing on his expertise as an orthopaedic surgeon. He examined Ms Graham on 28 September 2006, sometime after the period in which the treatments in issue were obtained. At the time of his examination of Ms Graham, Professor Nade found no pathology in her ankle. However, under cross examination he conceded that in such cases it would be important to make a diagnosis at the time and that to do so one would have to rely on a thorough clinical examination as well as any radiological evidence. Plainly enough Professor Nade did not have that opportunity prior to September 2006. For that reason, with respect, I prefer the contemporaneous evidence of the doctors who examined and treated Ms Graham during the period prior to September 2005.
20. The precise aetiology of Ms Graham’s left ankle pain symptoms is not clear, other than that they became evident the day after Ms Graham was attacked, and it is not presently explained by any apparent physical pathology. However, the lens through which the matters in issue must be viewed is a temporal one in relation to when the specific treatments were obtained and the dates on which Comcare determined that it had no present liability under s.16 of the Act. Thus, considering the particular period and the relevant dates (prior to September 2005), I am reasonably satisfied that her complaints of left ankle pain and other symptoms were real, and I accept her evidence that the symptoms fluctuated with activity. I am reasonably satisfied that Ms Graham’s left ankle symptoms did not resolve by 25 August 2004 or by 15 August 2005 and were ongoing in September 2005, and that those symptoms were the result of her injury on 14 October 2003.
Was the treatment Ms Graham obtained ‘in relation to’ an injury under the Act?
21. The term ‘in relation to’ is not given particular meaning under the Act. In the context of s.16 its meaning is plain enough. That is, the particular medical treatment, whereby costs were incurred and claimed, must relate to an injury under the Act: the treatment must be for the particular injury in question (Comcare v Watson (1997)[30]). The particular treatment must be therapeutic to be considered ‘medical treatment,’ and may include palliative treatment to alleviate the pain of an injury (Comcare v Watson (1997);[31] Bashar v Comcare (2002)[32]).
[30] 46 ALD 481 at 484.
[31] Ibid.
[32] 69 ALD 784 at 785.
22. Dr Speldewinde’s contemporaneous reports make it abundantly clear, and I find, that the medical treatments in question were treatments administered in relation to the left ankle symptoms of which Ms Graham complained at that time, especially pain. Even though on 6 February 2004, Dr Miniter was not able to explain Ms Graham’s symptoms of left ankle pain on the basis of any physical pathology, later that month Dr Speldewinde came to a different opinion. In April 2004, Dr Speldewinde reported that there was no orthopaedic cause for Ms Graham’s left ankle symptoms, but reported allodynia, tenderness, tendinopathy and talonavicular synovitis that he related to the injury on 14 October 2003. He proceeded to recommend and administer treatment that he considered to be appropriate in the circumstances.
23. As can be seen, Dr Speldewinde proceeded to treat symptoms that were related to the left ankle injury Ms Graham suffered on 14 October 2003. It follows, therefore, and I find, that the treatments in issue administered by Dr Speldewinde were medical treatments in relation to the left ankle injury.
Was it reasonable for Ms Graham to obtain the particular treatments in the circumstances?
24. Comcare relies on the evidence of Dr Miniter, Professor Nade and Dr Akkerman, that pain management was not necessary and that injections into various locations in and around Ms Graham’s left ankle were futile. On their evidence, Comcare asserts that it was not reasonable for Ms Graham to obtain the pain management program and intra-articular injections from Dr Speldewinde.
25. I do not agree.
26. The question of reasonableness involves objectivity and requires an examination of ‘the circumstances’, including relevant subjective factors related to the nature of the injury, and consideration of whether any alternative treatment, including no medical treatment at all, would have been better for Ms Graham than the treatment she obtained (Re Jorgensen & Commonwealth (1990)[33]). Furthermore, it is necessary to weigh the benefit of the particular treatment against the cost of obtaining it, taking into account any other available treatment (Comcare v Rope [2004][34]).
[33] 11 AAR 543 at 547.
[34] FCA 540 at [17].
27. In submissions advanced for Ms Graham, the question of reasonableness is directed to the employee obtaining the particular medical treatment: was it reasonable for the employee to obtain the treatment. That plainly reflects the language of the subsection.
28. Ms Graham obtained the particular treatments in issue on the recommendation of Dr Speldewinde, her treating specialist, and under the supervision of her treating sports medicine and general practitioners (Dr Murphy, Dr Paoloni, Dr Somasundaram and Dr Ragavan). While one can conceive of circumstances in which an injured employee may refuse treatment recommended in such circumstances, for example, in relation to a high risk treatment or one with a low chance of success, this is not such a case. Ms Graham accepted the recommendations of her treating doctors and obtained the treatments in question. As will appear, I am reasonably satisfied that it was reasonable for her to do so in the circumstances.
29. Dr Miniter is an orthopaedic surgeon. By his own account, it would not be reasonable for him to treat symptoms that were not clearly delineated by physical pathology. There is no evidence that surgical intervention was warranted at that time or subsequently. In February 2004, Dr Miniter suggested referring Ms Graham to a pain management physician. Under cross examination he accepted Dr Speldewinde’s expertise as a specialist in rehabilitation and pain management. Thus I prefer Dr Speldewinde’s evidence concerning the treatment of symptoms that Dr Miniter could not explain or treat.
30. Professor Nade is also an orthopaedic surgeon who gave evidence that injections to various sites in the area of Ms Graham’s left ankle and foot were unnecessary as there was nothing to treat, and referral to a pain management physician for a physical injury to her left ankle was not indicated.[35] However, Professor Nade accepted Dr Speldewinde’s expertise in the area of pain management and gave evidence concerning the importance of a thorough clinical examination for the purposes of assessing and treating Ms Graham’s left ankle condition. Professor Nade did not have the opportunity of conducting such an examination of Ms Graham until September 2006. Thus, I prefer the contemporaneous evidence of Dr Speldewinde concerning these issues.
[35] Exhibit R1, 22 May 2007 report, p2.
31. On 19 May 2004, Dr Akkerman reported that “I do not believe that pain management is necessary. The pain is only a problem because of her depression.”[36] His evidence was that, while acknowledging her complaints of left ankle pain when he examined Ms Graham in 2004, at that time it was more important to treat her depression, and doing so may lead to resolution of her pain or an improvement in her pain management. When cross examined, Dr Akkerman agreed that he did not examine Ms Graham’s left ankle in 2004, but noted that she gave a history of fluctuating left ankle pain subject to activity. He accepted that her complaints of left ankle pain were real. I accept that Dr Akkerman identified depression as the major psychiatric concern in Ms Graham’s presentation, greater than any symptoms of pain she was experiencing, and that treating her depression may improve the prospects of treating her pain. However, without examination of Ms Graham’s left ankle, it was not possible for Dr Akkerman to determine whether or not there was a pathophysiological basis for her complaints of pain. I am not persuaded therefore, as a matter of probability rather than mere possibility, that treatment for depression would ameliorate her pain, or that such treatment would render the specific treatments in issue unreasonable for Ms Graham to obtain.
[36] T69 folio 101.
32. Considering the particular treatments in issue, I accept that the approach adopted by Dr Speldewinde was directed to ameliorating Ms Graham’s symptoms in the area of her left ankle. The pain management program Ms Graham undertook in May 2004 was “specifically designed to address the needs of patients with chronic benign musculo-skeletal injuries who have not responded to other treatments within expected timeframes.”[37] The stated objectives of the program were to:
“- Facilitate maximal physical and functional recovery for patients.
- Encourages [sic] individuals to regain independence in their daily lives.
- Reduce patients’ reliance on health care services and medications.
- Facilitate reactivation of ‘normal’ behaviours including return to work and previous physical activities.
- Activate self-management skills in coping with their chronic pain.”[38]
[37] T55 folio 76.
[38] Ibid.
33. At the time she undertook the pain management program, Ms Graham was also obtaining individual pain management counselling from Ms Amanda Lucas, psychologist, and an exercise program from Mr Powell under Dr Speldewinde’s supervision. Comcare accepted and approved these treatments as medical treatment that it was reasonable for Ms Graham to obtain in relation to her psychological injury. Under cross-examination, Ms Graham stated that the benefits she derived from the pain management program included practical techniques and experiences that were discussed and practised in group sessions during that program. Her evidence was that these benefits were qualitatively different than the benefits she derived from the individual counselling sessions, which focussed on her psychological state and related techniques for coping with pain. Dr Speldewinde’s evidence that the one-on-one counselling provided by Ms Lucas in relation to Ms Graham’s psychological injury was qualitatively different than the pain management program which included group therapy sessions and a multidisciplinary approach.[39] I accept that a person may derive therapeutic benefits from multidisciplinary group pain management therapy that may be qualitatively different than the therapeutic benefits that may be derived from one-on-one pain management counselling in relation to a psychological injury.
[39] T55.
34. Ms Lucas was not called to give evidence and was not required for cross-examination. There is scant material addressing the particular content of the individual counselling sessions she provided Ms Graham. The evidence before me suggests that the psychological counselling was directed to alleviate post traumatic anxiety, at least in part in relation to pain, and thereby to improve Ms Graham’s psychological condition. Whereas it appears that the pain management program was directed to improving the physical and functional recovery of participants, including returning to work, at least in part by reducing reliance on medication and increasing independent self-management skills in relation to pain. Considering the evidence in relation to these matters I am reasonably satisfied that the pain management program provided benefits to Ms Graham in relation to her left ankle injury that she did not and could not obtain from the other treatment modalities she was obtaining at the time.
35. The stated cost of the pain management program was $3,000 (12 three hour sessions over a six week period). As I understand Comcare’s submissions, the individual counselling sessions and exercise program are posited as alternative treatments that were available to Ms Graham at the time. I agree. However, there is insufficient evidence on which to conduct a comparative cost benefit analysis, and no submissions were made by either party in this regard. Nevertheless, doing the best with the available evidence, Ms Graham obtained therapeutic benefits from multidisciplinary group therapy during the pain management program that were qualitatively different than the benefits she obtained from individual treatment programs. The additional benefits obtained from the pain management program were derived at a cost of $3,000. I am not persuaded that Ms Graham would have derived similar benefits from individual treatment over a longer period. It appears that the initial cost of the psychological counselling was $2,077 (initial assessment and up to 8 individual 1.5 hour sessions at $204 per session)[40] and the initial cost of the exercise program was $1,414 (initial assessment, 14 sessions at $63 per session and home based final assessment).[41] No evidence was adduced in relation to the cost of other comparable treatments in Canberra at the time and no submissions were made by either party in this regard. Nevertheless, what can be said is that the cost of the pain management program is not great when compared to the cost of the other treatments then being obtained ($3,000 for the pain management program compared with a combined cost of $3,491 for initial psychological counselling and exercise therapy). To the extent that the pain management program provided therapeutic benefits not otherwise available from other treatments then being obtained, I am satisfied that the therapeutic benefits to Ms Graham justify the cost incurred.
[40] AT45 refers.
[41] AT51 refers.
36. The cost effectiveness of the pain management program may be measured by improvement reduction in functional incapacity as a result of the left ankle injury. Ms Graham attempted to return to work in July 2004 but was prevented by her psychological injury. I accept Ms Graham’s evidence and that of Dr Speldewinde, that her attempt to return to work at that time was related to benefits she derived from the pain management program as distinct from the ongoing psychological counselling and exercise program that were ongoing at that time. I note in passing that the cost of the program is comparatively small when compared with the cost of Ms Graham’s incapacity entitlements as a result of her injury (which, it appears, were paid on the basis of total incapacity at that time pursuant to her psychological injury). To the extent that the pain management program provided benefits to Ms Graham that led her to attempt to return to work, and that apparently improved her functional capacity and ability to manage the symptoms of her injury, I am reasonably satisfied that the therapeutic benefits Ms Graham derived were sufficient to justify the cost of the program.
37. Comcare led evidence and made submissions in relation to the circumstances in which Ms Graham obtained the pain management program. It appears that Comcare did not approve the program as reasonable treatment in relation to the injury prior to her commencing it in May 2004. However, I am not satisfied that Comcare’s position was a determination to refuse compensation in relation to the program. That was not squarely put to Ms Graham then, or during these proceedings. Comcare did not inform Ms Graham of its position or any such determination at that time, and it appears likely that she was ignorant of any position taken by Comcare in relation to the treatment. Even if she was aware of Comcare’s position at the time she obtained the treatment, it would not render her proceeding to obtain the treatment unreasonable in the circumstances. The submission is without merit. It is not necessary for Comcare to approve a particular treatment for compensation purposes prior to it being obtained by an injured employee. S.16 of the Act is not cast in those terms.
38. With regard to the injections and related consultations Ms Graham obtained from Dr Speldewinde, it appears that the cost claimed was $2,061.08.[42] The initial injections that Ms Graham obtained from Dr Speldewinde in July 2004 were, I am satisfied, administered on a trial basis. Dr Miniter and Professor Nade accepted that such an approach may be appropriate to adopt in certain circumstances, and if the procedure results in the alleviation of symptoms, it may be appropriate to administer a small number of further such injections over a period. I am reasonably satisfied that that is what Dr Speldewinde did. I accept Ms Graham’s evidence that she obtained benefit and the treatment resulted in alleviation of her symptoms for a time. Further, I am reasonably satisfied that the beneficial effect after each injection was of increasing duration. The initial trial nature of these injections and the fact that they merely provided symptomatic relief for a time does not render them unreasonable to obtain.
[42] BT8.
39. Comcare submitted that the injections were futile as there was nothing for them to treat in Ms Graham’s left ankle. I do not agree. I am satisfied that Dr Speldewinde administered the injections in order to treat the left ankle symptoms of which Ms Graham complained. Dr Speldewinde’s evidence was that he administered the injections under low intensity X-ray. His evidence was that he did so to ensure proper direction and placement of the needle in a specific location and to avoid misplacement and damage to surrounding structures, such as tendons. Dr Speldewinde explained that he administered the injections at specific locations that he determined in relation to Ms Graham’s complaints and descriptions of her symptoms. He did not rely on previously obtained imaging studies for that purpose. I accept Dr Speldewinde’s evidence on this point and find that he administered the injections in specific locations in order to treat Ms Graham’s pain symptoms. Comcare’s submission is not made out. Dr Speldewinde explained that he gradually decreased the amount of corticosteroid administered in each injection, without reducing the benefits Ms Graham derived. Comcare says that those benefits may be characterised as a placebo effect, being in Ms Graham’s mind. I do not accept that submission. The injections contained anaesthetic which was effective in reducing symptoms for a period after an initial increase in pain of short duration. There is no evidence that the proportion of anaesthetic in the injections administered by Dr Speldewinde decreased over time. No serious challenge was made against the evidence that the injections provided increasing periods of symptomatic relief despite the reduction in corticosteroid content.
40. No evidence was adduced in relation to any other alternative treatment modalities that may have been available to Ms Graham or beneficial to her left ankle injury. Considering the alternative of no treatment at all, I am not persuaded by the evidence of Dr Miniter and Professor Nade, that no treatment would have been more beneficial to Ms Graham than the treatment she obtained. Without the pain management program, Ms Graham would not have obtained the practical techniques and group therapy benefits, and without the injections she would not have obtained increasing periods of symptomatic relief. It is difficult to properly assess the relative benefit to Ms Graham of not obtaining the treatments she did, simply because the treatments she obtained delivered benefits that have subsequently assisted her progress in relation to the injuries she sustained in employment. I accept, however, that no orthopaedic surgical treatment was warranted in relation to the injury. I note in passing that both Dr Miniter and Professor Nade accepted that, in the absence of apparent pathology and an adequate explanation of her ongoing pain symptoms, they could offer no treatment for Ms Graham’s left ankle condition, and in those circumstances, accepted that it may be appropriate to refer her for expert assessment and treatment by a pain specialist, such as Dr Speldewinde.
41. Considering all of the evidence and the submissions that were made, I am reasonably satisfied that the pain management program and the injections Ms Graham obtained from Dr Speldewinde were treatments that it was reasonable for her to obtain in the circumstances. I so find.
42. It follows that Comcare is liable to pay Ms Graham compensation in relation to those medical treatments pursuant to s.16 of the Act.
43. Finally, no issues were raised concerning any present liability to compensate Ms Graham for medical treatment expenses in relation to her left ankle injury. Ms Graham’s evidence was that she did not continue to obtain medical treatment from Dr Speldewinde after September 2005. That was so, she stated, because Comcare refused to compensate her for the cost of such treatment and she could not afford to purchase it herself. I am satisfied that liability to compensate Ms Graham pursuant to s.16 of the Act did not cease on 15 August 2005. Thus, there is no bar to further claims for medical treatment in relation to Ms Graham’s left ankle injury, however, any such claim must be tested on the evidence and on the merits at the time.
decision
44. The decisions under review are set aside and in place thereof the Tribunal decides that:
(a)liability to compensate Ms Graham for medical treatment expenses in relation to the left ankle injury she suffered on 14 October 2003 did not cease on 25 August 2005 or on 15 August 2005; and
(b)the pain management program and the intra-articular injections she obtained from Dr Speldewinde were medical treatments in relation to her left ankle injury that it was reasonable for her to obtain in the circumstances.
45. As the matter is resolved in a manner favourable to Ms Graham it is appropriate to consider orders for costs. However, no submissions were made in relation to that subject during the hearing. In the circumstances, it is appropriate to order Comcare to pay Ms Graham’s reasonable costs in these proceedings as agreed or taxed. The parties have 14 days in which to make submissions on this point. If no submissions are received, the orders proposed will be made.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: …………signed……………………….
Jane Gribble, AssociateDate of Hearing 6, 7, 8 August 2007
Date of Decision 29 August 2007
Counsel for the Applicant Jane Gotschalk
Solicitor for the Applicant Bill Redpath
Counsel for the Respondent Cathy Dowsett
Solicitor for the Respondent Rosa Pezzella
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