Hallmann v Southern Cross University
[2024] NSWPIC 209
•26 April 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Hallmann v Southern Cross University [2024] NSWPIC 209 |
| APPLICANT: | Geoffrey Peter Hallmann |
| RESPONDENT: | Southern Cross University |
| MEMBER: | Gaius Whiffin |
| DATE OF DECISION: | 26 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claims for spinal injuries, aggravation of myalgic encephalomyelitis/chronic fatigue syndrome with fibromyalgia, and other consequential conditions (accepted injuries); claim for treatment expenses pursuant to section 60; consideration of applicant’s and other statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the treatment expenses are reasonably necessary medical treatment as a result of the applicant’s accepted injuries on 1 July 2020 as well as the applicant’s accepted injuries on 15 October 2020; if so, what is the extent to which the treatment is required and what is the frequency in relation to which the treatment is required; Rose v Health Commission (NSW), Diab v NRMA Limited, and Murphy v Allity Management Services Pty Limited considered; Held – physiotherapy treatment, gym membership, personal training, and exercise physiology are reasonably necessary medical treatment for the applicant as a result of his accepted injuries on 1 July 2020 as well as his accepted injuries on 15 October 2022; he is to be afforded eight weeks of physiotherapy treatment three times per week in accordance with Emile du Plessis’ request dated 6 April 2023, gym membership for three months in accordance with the tax invoice from Byron Gym dated 11 April 2023, 13 weeks of personal training twice per week in accordance with Jason Mickan’s request dated 30 August 2023, and eight weeks of exercise physiology once per week in accordance with Tim Boyd’s request dated 9 March 2023; the Commission only has evidence before it to allow it to order these periods of treatment; if the applicant requires treatment for a longer period, he will need to make an appropriate claim upon the respondent in this regard; the Commission currently makes no determination regarding the applicant’s entitlements following the periods referred to; award for the applicant accordingly. |
| DETERMINATIONS MADE: | The Commission determines: 1. Physiotherapy treatment is reasonably necessary medical treatment for the applicant as a result of his accepted injuries on 1 July 2020 as well as his accepted injuries on 15 October 2022. He is to be afforded eight weeks of physiotherapy treatment three times per week in accordance with Emile du Plessis’ request dated 6 April 2023. The Commission only has evidence before it to allow it to order this period of physiotherapy treatment. If the applicant requires physiotherapy treatment for a longer period, he will need to make an appropriate claim upon the respondent in this regard. The Commission currently makes no determination regarding the applicant’s entitlements following the period referred to in Emile du Plessis’ request. 2. Gym membership is reasonably necessary medical treatment for the applicant as a result of his accepted injuries on 1 July 2020 as well as his accepted injuries on 15 October 2022. He is to be afforded gym membership for three months in accordance with the tax invoice from Byron Gym dated 11 April 2023. The Commission only has evidence before it to allow it to order this period of gym membership. If the applicant requires gym membership for a longer period, he will need to make an appropriate claim upon the respondent in this regard. The Commission currently makes no determination regarding the applicant’s entitlements following the period referred to in the tax invoice from Byron Gym. 3. Personal training is reasonably necessary medical treatment for the applicant as a result of his accepted injuries on 1 July 2020 as well as his accepted injuries on 15 October 2022. He is to be afforded 13 weeks of personal training twice per week in accordance with Jason Mickan’s request dated 30 August 2023. The Commission only has evidence before it to allow it to order this period of personal training. If the applicant requires personal training for a longer period, he will need to make an appropriate claim upon the respondent in this regard. The Commission currently makes no determination regarding the applicant’s entitlements following the period referred to in Jason Mickan’s request. 4. Exercise physiology is reasonably necessary medical treatment for the applicant as a result of his accepted injuries on 1 July 2020 as well as his accepted injuries on 15 October 2022. He is to be afforded eight weeks of exercise physiology once per week in accordance with Tim Boyd’s request dated 9 March 2023. The Commission only has evidence before it to allow it to order this period of exercise physiology. If the applicant requires exercise physiology for a longer period, he will need to make an appropriate claim upon the respondent in this regard. The Commission currently makes no determination regarding the applicant’s entitlements following the period referred to in Tim Boyd’s request. The Commission orders: 5. The respondent is to pay for the costs of and incidental to the applicant undergoing the following treatment, pursuant to s 60 of the Workers Compensation Act 1987: (a) eight weeks of physiotherapy treatment three times per week; (b) gym membership for three months; (c) 13 weeks of personal training twice per week, and (d) eight weeks of exercise physiology once per week. |
STATEMENT OF REASONS
BACKGROUND
Geoffrey Peter Hallmann (the applicant) is 55 years old. He was employed by Southern Cross University (the respondent) from 2008, pursuant to various contracts from time to time. He was employed as a tutor (study assist officer) and his employment was casual.
After the applicant was required to work from his home from 27 March 2020 (during the height of the COVID 19 pandemic) until around September 2020, he aggravated cervical spine, thoracic spine, and lumbar spine conditions, due to sitting down for long periods of time in an unsuitable chair, as well as due to generally being provided with an unsuitable work station and work environment in order to perform his employment duties from his home. As a result of these aggravations, he also exacerbated his myalgic encephalomyelitis/chronic fatigue syndrome with fibromyalgia (ME/CFS with F).
The respondent initially accepted that the applicant had sustained these injuries, and it initially paid him weekly benefits compensation as well as his medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
However, following various liability denial notices issued by the respondent pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the applicant commenced previous proceedings before the Personal Injury Commission (Commission), which were determined by Member Isaksen on 15 June 2022. Although that determination was varied slightly following an appeal, the following findings of the Member remain:
(a) the applicant sustained injury in the course of his employment with the respondent by way of a disease injury – pursuant to s 4(b)(ii) of the 1987 Act;
(b) the deemed date of this injury pursuant to s 16(1) of the 1987 Act is 1 July 2020, and
(c) the applicant has had a partial incapacity for work since 1 December 2021.
Member Isaksen specifically found:
“103. I accept that the applicant experienced spinal pain due to the unsuitable work conditions at his home which commenced in March 2020. This is supported in the opinions of Dr Bird and Dr Cleaver. I accept that this spinal pain caused the applicant to decrease his activity and gain weight, which in turn led to symptoms associated with ME/CFS, such as swelling of the lower limbs and problems with balance. That is supported by the opinion of Dr Bird, who has had the benefit of many years of treating the applicant.”
The applicant then suffered a further aggravation of his cervical spine, thoracic spine, and lumbar spine injuries in a motor vehicle accident on 15 October 2022. He further sustained new injuries to his right hip and right elbow in that accident, as well as alleged injuries to his styloid and sacrum.
Since the previous Commission determination, the applicant has continued to receive weekly benefits compensation from the respondent, and some of his medical and treatment expenses pursuant to s 60 of the 1987 Act have also been met.
The applicant has however experienced significant difficulties with the respondent meeting all his claims for medical and treatment expenses pursuant to s 60 of the 1987 Act.
The applicant has therefore now lodged a further Application to Resolve a Dispute (ARD) in the Commission with respect to expenses which the respondent has refused to pay.
The ARD was listed for conciliation/arbitration before the Commission on 20 December 2023.
Although the ARD refers to a number of different types of expenses, some of those expenses have already been met by the respondent, and at the conciliation/arbitration, the respondent further conceded:
(a) it agreed to voluntarily pay the gastrointestinal treatment expenses, as particularised by the applicant at pages 2,811-2,814 of the ARD, and
(b) it agreed to voluntarily pay for the applicant’s reasonably necessary travel expenses associated with his approved treatment (on dates up to and including 25 October 2023 – being the date when the ARD was lodged), with credit being given to it for payments already made by it in this regard.
It was therefore agreed between the parties that the only disputed claims for expenses by the applicant related to expenses required by him for physiotherapy treatment, gym membership, personal training, and exercise physiology.
The respondent had denied liability for expenses required by the applicant for physiotherapy treatment, gym membership, and personal training, by way of a notice pursuant to s 78 of the 1998 Act dated 4 May 2023 (at page 554 of the ARD).
In relation to the exercise physiology expenses, I cannot see that I have been provided with any notice issued by the respondent pursuant to s 78 of the 1998 Act. However, there is a request that the respondent pay such expenses completed by the applicant’s exercise physiologist, Tim Boyd (Boyd), dated 9 March 2023 (at page 2756 of the ARD). In the circumstances, should the respondent not have issued the necessary notice pursuant to s 78, the applicant would still nevertheless be entitled to proceed before the Commission to claim exercise physiology expenses, pursuant to s 289(2) of the 1998 Act as the respondent would have then failed to determine that claim within the 21 days required by s 279 of the 1998 Act.
At the conciliation/arbitration, the respondent also conceded that the injuries which the applicant received in his motor vehicle accident on 15 October 2022 to his right hip, right elbow, cervical spine, thoracic spine, and lumbar spine, were consequential injuries, resulting from his accepted work-related injuries. The respondent continued to maintain however that the applicant’s allegations of receiving injuries to his styloid and sacrum in the motor vehicle accident were disputed.
The styloid and sacrum injuries are not relevant to my consideration of the disputed claims referred to in paragraph 12 above. Further, most of the consequential injuries alleged by the applicant in the ARD (including sleep apnoea, other sleep issues, endocrine issues, orthostatic intolerance, hypogonadism, weight gain, diabetes onset, dental disease, gastrointestinal issues, visual issues, and cardiac issues) are also not directly relevant to my consideration of these disputed claims.
ISSUES FOR DETERMINATION
The parties therefore agreed at the conciliation/arbitration that the issues in dispute in the Commission proceedings are:
(a) whether physiotherapy treatment is reasonably necessary medical treatment as a result of the applicant’s accepted injuries on 1 July 2020 (this is the deemed date found by Member Isaksen even though the date in the ARD and the date referred to in the respondent’s notices pursuant to s 78 of the 1998 Act is 18 May 2020) as well as the applicant’s accepted injuries on 15 October 2022 (see paragraph 15 above) – if so, what is the extent to which the treatment is required and what is the frequency in relation to which the treatment is required;
(b) whether gym membership is reasonably necessary medical treatment as a result of the applicant’s accepted injuries on 1 July 2020 as well as the applicant’s accepted injuries on 15 October 2020 – if so, what is the extent to which the treatment is required and what is the frequency in relation to which the treatment is required;
(c) whether personal training is reasonably necessary medical treatment as a result of the applicant’s accepted injuries on 1 July 2020 as well as the applicant’s accepted injuries on 15 October 2020 – if so, what is the extent to which the treatment is required and what is the frequency in relation to which the treatment is required, and
(d) whether exercise physiology is reasonably necessary medical treatment as a result of the applicant’s accepted injuries on 1 July 2020 as well as the applicant’s accepted injuries on 15 October 2020 – if so, what is the extent to which the treatment is required and what is the frequency in relation to which the treatment is required.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
A lengthy conciliation conference was held in the dispute on 20 December 2023. On that occasion, the applicant represented himself. Mr Stuart Grant of counsel appeared for the respondent, instructed by Mr Simons, and Ms Lawrence from the respondent’s insurer also appeared.
The dispute did not resolve during the conciliation conference, and therefore proceeded to an arbitration hearing. The respondent provided oral submissions at the arbitration hearing, and a timetable was then put into place for the provision of further written submissions. I considered this to be the most procedurally fair way of proceeding considering:
(a) following the extensive conciliation conference, there was inadequate time left on 20 December 2023 for all submissions to be made;
(b) the respondent volunteered to make its oral submissions first, and
(c) the applicant represented himself and should therefore be given time to review the respondent’s oral submissions (following the perusal of a transcript in this regard).
All written submissions have now been provided and considered by me, and I thank the parties in this regard.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents, and
(b) the respondent’s Reply (the Reply) and attached documents.
Oral evidence
There was no oral evidence called at the arbitration hearing.
Applicant’s evidence
The ARD is lengthy (2,902 pages) and contains a large number of documents in relation to the applicant’s treatment history and his interactions with the respondent’s insurer, as well as his previous interactions with the Commission. While I have considered the ARD in its entirety, I will be concentrating in these reasons upon my review of the documents which specifically relate to the issues which I need to determine (see paragraph 17 above).
The applicant’s statement evidence includes a statement signed by him on 2 February 2021 (at page 2 of the ARD). As at the date of the statement, he was having physiotherapy treatment twice per week, but had not been “approved for exercise therapy to assist with the weight gain and the loss of flexibility” arising from his injuries. His treatment was otherwise being co-ordinated by his long-time general practitioner, Dr Bird, who he had first consulted about his injuries on 1 July 2020.
The applicant then provides a statutory declaration on 26 May 2022 (at page 37 of the ARD). In that declaration, he refers to his current state of health, which included severe pain in his lower back, back spasms, difficulties driving, sleep disturbance, pain into his legs, reduced range of movement, difficulties dressing, swelling into his hands and legs, significant weight gain, severe fatigue and malaise, as well as diabetes. He says that he has “deteriorated across the board since the insurer took away the physiotherapy and exercise physiologist in October 2021”.
The applicant’s partner (Jacqueline Watson) also provides a statutory declaration on 26 May 2022 (at page 93 of the ARD). She says that she has witnessed the deterioration of the applicant’s spinal condition from April 2020, and that he now experiences headaches, swelling, weight gain, major sleep disruption, and an inability to travel. She also says that he has “deteriorated physically since ceasing treatment in October 2021”.
In the applicant’s 11 September 2022 statutory declaration (at page 95 of the ARD), he advises that:
(a) the respondent’s insurer approved for him to have physiotherapy treatment within a month or so of Dr Bird’s initial 1 July 2020 certificate of capacity;
(b) the respondent’s insurer approved for him to have exercise physiology treatment in about April 2021, and
(c) on 7 October 2021, the respondent’s insurer denied “all elements of the claim”.
The applicant’s most recent statutory declaration was declared on 7 October 2023 (at page 124 of the ARD).
The applicant says that after his ongoing treatment needs were withdrawn by the respondent’s insurer on 7 October 2021, he experienced a “significant deterioration”, involving increased spinal pain, increased spasms, elevated fatigue levels, numbness, reduced flexibility, reduced range of movement in his neck and back, shortened time frames for the onset of malaise, sleep pattern disturbances and changes in onset and duration, as well as mood disturbances, depression and anxiety. His activities of daily living were impeded and his ability to ambulate deteriorated.
He says that following the determination of the Commission on 15 June 2022, his treatment resumed in July 2022 with one exercise physiology session (with Boyd) per week and two physiotherapy sessions per week (which increased to three sessions per week for a brief period of three weeks in early 2023). Further, in around September 2022, he paid for a gym membership, and in around November 2022, the respondent’s insurer agreed to pay for a personal trainer, Jason Mickan (Mickan), who had developed a supervised gym program for him in consultation with Boyd.
He says:
“During this period of treatment with the full modalities in place, I began to make objective and subjective progress. This was measured by way of standardised instruments and objective measures…When the treatment was removed in April 2023, I deteriorated abruptly”.
After April 2023, he experienced symptoms similar to those that he experienced after 7 October 2021 (see paragraph 30 above), and he spent much of the next six months housebound. He says:
“The impact of the removal of treatment has been nothing but adverse and has effectively subjected me to torture for the past 6 months at a time that the effects of the 15 October 2022 car accident were in significant need of treatment.”
The applicant advises that medication has not been effective in alleviating his symptoms of spinal pain and ME/CFS with F, and often produced side-effects. In relation to the positive effects of physiotherapy and exercise physiology in treating those symptoms, he advises:
“The physiotherapy, at 3 times per week, was the sole treatment that was effective at managing the muscle and fascia issues. It was the only intervention that alleviated the effect of day-to-day activities and participation in exercise (particularly exercise programs) on these areas…The exercise physiology program at 2-3 times per week, was the sole treatment that was effective at managing issues of muscle strength, core strength and flexibility. It was the only intervention that enabled improvement of physical strength, flexibility and function, whilst preventing deterioration. Furthermore, it assisted in maintaining weight and keeping the glucose resistance from deteriorating into diabetes.”
He also explains the multiple purposes of physiotherapy as:
“(a) To alleviate the impact of day to day living and activities on ME/CFS and FM;
(b) To alleviate the impact on the ME/CFS with FM, of the rehabilitative stretching and exercises undertaken as a part of treatment;
(c) To prevent deterioration of the ME/CFS and FM as a result of the impact of day to day living and activities on ME/CFS;
(d) To prevent deterioration on the ME/CFS with FM, of the rehabilitative stretching and exercises undertaken as a part of treatment;
(e) To improve the spinal injuries and ME/CFS with FM.”
In relation to the applicant’s need for physiotherapy treatment, the ARD contains the following documents from his physiotherapist, Emile du Plessis (Plessis):
(a) a request dated 21 August 2020 (at page 2,688) – referring to the applicant as having been referred by Dr Bird with a diagnosis of “low back, cervical spine postural strain…History of work-related…CFS/ME and Fibromyalgia” – requesting eight sessions of physiotherapy treatment (weekly to bi-weekly) with a stated goal of “improve current functional status, prevent deterioration, manage flair ups” – the rationale for services being “reasonable treatment considering the condition and multiple pathologies”;
(b) a request (at page 2,693) in almost identical terms to the 21 August 2020 request – requesting a further eight sessions of physiotherapy treatment (two sessions per week) from 28 October 2020;
(c) a request dated 21 December 2020 (at page 2,698) in almost identical terms to the 21 August 2020 request – requesting a further eight sessions of physiotherapy treatment (1 to 2 times per week for four weeks);
(d) a request dated 15 February 2021 (at page 2,703) in almost identical terms to the 21 August 2020 request – requesting a further eight sessions of physiotherapy treatment (1 to 2 times per week for four weeks) - the stated goal in the request also now refers to “transition to EP”;
(e) a request dated 19 April 2021 (at page 2,708) in almost identical terms to the 15 February 2021 request (including in relation to the duration and frequency of treatment required);
(f) a request dated 21 June 2021 (at page 2,713) in almost identical terms to the 15 February 2021 request (including in relation to the duration and frequency of treatment required);
(g) a request dated 26 August 2021 (at page 2,718) in almost identical terms to the 15 February 2021 request (including in relation to the duration and frequency of treatment required);
(h) a request dated 26 September 2022 (at page 2,741) – this request updates the applicant’s current signs and symptoms, noting increased reported symptoms overall and decreased tolerances for functional activities – it requests eight sessions of physiotherapy treatment (1 to 2 times per week for four weeks) with a stated goal of “improve current symptoms, increase activity levels, transition to EP”;
(i) a request dated 22 December 2022 (at page 2,746) – this request updates the applicant’s current signs and symptoms, noting decreased low back pain and stiffness and improved tolerances for functional activities – the request is otherwise in almost identical terms to the 26 September 2022 request (including in relation to the duration and frequency of treatment required);
(j) a request dated 27 February 2023 (at page 2,751) – this request also notes the applicant’s decreased low back pain and improved tolerances for functional activities, and is otherwise in almost identical terms to the 26 September 2022 request (including in relation to the duration and frequency of treatment required);
(k) a request dated 6 April 2023 (at page 2,761) in almost identical terms to the 27 February 2023 request – this treatment request was not approved by the respondent, and
(l) an email to the applicant on 12 May 2023 (at page 679) regarding Plessis’ conversation with John Silcock (Silcock), a physiotherapist who had provided a report to the respondent regarding the applicant’s treatment requirements – Plessis advised Silcock that ongoing physiotherapy was justified as reasonable on the basis of the applicant’s ME/CFS with F, but Silcock maintained that only the applicant’s back injury was to be considered.
In relation to the applicant’s need for exercise physiology treatment, the ARD contains the following documents from Boyd:
(a) a referral to him from Dr Bird dated 11 October 2020 (at page 2,449) – in which Dr Bird stresses the necessity of a management plan being developed to address the applicant’s severe reduction in flexibility, ongoing tightness, spasms, muscle deterioration, and weight gain;
(b) a request dated 2 September 2021 (at page 2,728) – referring to the applicant as having been referred by Plessis with a diagnosis of “chronic lumbar and cervical pain” and with current signs and symptoms of “persistent fluctuating but slowly improving” lower back pain – advising the stated goal of increasing work hours and increasing daily activity tolerance and participation – and requesting eight sessions of exercise physiology twice per week;
(c) a request dated 25 July 2022 (at page 2,723) – referring to the applicant as having been referred by Plessis with a diagnosis of “chronic lumbar, thoraco, cervical pain, with associated: ME/CFS, POTS, Fibromyalgia, cerebral perfusion disorder” – noting that the applicant’s condition had deteriorated after the cessation of his treatment in 2021 – advising the stated goal of “decrease symptoms, increase activity tolerance, increase capacity to support RTW” – and requesting eight sessions of exercise physiology treatment weekly, and
(d) a request dated 9 March 2023 (at page 2,756) – requesting eight weekly sessions of exercise physiology treatment – this treatment request was not approved by the respondent – the request identifies the rationale for treatment as:
“Severe inactivity and disability secondary to severe and complex mix of conditions…Remains high risk of physical and psychological deconditioning…Whilst condition and function is not progressing, treatment for spinal pain does provide symptomatic alleviation and combats functional decline, however exercise continues to trigger unavoidable and unpredictable PEM and aggravation of ME-CFS symptoms…Inability to manage symptoms…Inability to implement independent exercise behaviors, and further impacted by recent flood displacement > will require guided facility based exercise in order to benefit from therapeutic effect of exercise…Yellow flags, significant disability barriers to recovery / RTW > amenable to supported exercise therapy, education and behavioral strategies”.
In relation to the applicant’s need for the services of a personal trainer, the ARD contains:
(a) a referral from Dr Bird to Mickan (at page 2,494) dated 26 September 2022 – in which Dr Bird refers to the applicant’s need for a supervised gym and stretching program (to be discussed with Boyd) – the doctor specifically mentions the applicant’s weight gain, diabetes, sleep issues, and reduced flexibility – the doctor also warns against a graded exercise program or any form of pushing (which would likely aggravate the applicant’s ME/CFS with F), and
(b) a quotation from Mickan dated 30 August 2023 (at page 2,834) – recommending 26 personal training sessions (twice-weekly for three months) at a total cost of $2,080.
In relation to the applicant’s need for gym membership, the ARD contains a tax invoice from Byron Gym dated 11 April 2023 (at page 2,833) in the amount of $435 for gym membership (period of membership not advised).
The ARD contains numerous detailed reports from Dr Bird.
Dr Bird’s first report to the respondent’s insurer is dated 30 July 2020 (at page 690 of the ARD).
The doctor provides a diagnosis of the applicant’s injury as:
“Aggravation of back/cervical spine/neck injury leading to exacerbation of ME/CFS with persisting Fibromyalgia (FM)…Note – the back was triggered before the ME/CFS with FM and then caused the triggering of the ME/CFS symptoms of pain, fatigue, migraines, headaches, etc…Weight gain as a result of injury (about 8kgs in a month) resulting from reduced activity caused by injury.”
The doctor obtains a detailed account of the applicant’s unsuitable work environment while he was working for the respondent at home after 27 March 2020, and he advises that the work environment caused his previous neck and back injuries as well as his previous ME/CFS with F to deteriorate – “the circumstances of the employment self-evidently caused the injury”.
In terms of treatment, the doctor records that the applicant was undergoing physiotherapy treatment, and required chiropractic treatment.
In the doctor’s next report to the respondent’s insurer dated 13 October 2020 (at page 697 of the ARD), the doctor discusses the applicant’s treatment needs and makes various recommendations. In relation to exercise physiology, the doctor advises:
“Given the sleep issues reported and the weight gain, and the inability to engage in physical activity, Mr. Hallmann is in decline. The weight alone will exacerbate his back injury. It will likely drive inflammation. His history of glucose resistance places him at risk of diabetes with weight gain. He reports significant loss of flexibility, to the point where he struggles to put clothing on, put his shoes and socks on, and effectively attend to his ability to attend to normal toileting requirements that require stretching. He cannot scratch his back properly. This is a gentleman with 40 years of baseball, so flexibility has been quite significant and has declined across the illness. This decline is beyond what he was already experiencing…I believe it is reasonably necessary for
Mr. Hallmann to undergo a review by an exercise physiologist. Past attendances of several times a week across 2008 – 2010 demonstrated that Mr. Hallmann was capable of improving flexibility, strength and some weight loss. It also demonstrated that it was essential for physiotherapy of 3 times a week and chiropractic once a week, to maintain the adverse effects of the condition, but also the adverse effects of the therapy…Exercise physiology holds potential to strengthen his spinal area and core, as well as improve flexibility and his weight…It is noted that he will go backwards during this time. It will likely trigger his post-exertional malaise hence take time for him to recover…This is an approach encouraged within the literature, but it is also outlined that it can cause harms. Mr. Hallmann has expressed a desire to make a genuine attempt to claim back lost function. This is important to him.”Then, in relation to physiotherapy treatment, the doctor advises:
“Mr. Hallmann has been having treatment with PhysioPlus. His history has demonstrated that physiotherapy is the most successful modality to keep him functional, and to alleviate key deteriorations of the condition, including the effect of exercise…He has muscle spasms, tightness and knotting at multiple points, of varying degree and intensity. The needs change with work load and with activity. The injury has significantly triggered symptoms and this will take time to settle. The physiotherapy will alleviate pain, tightness, spasms and knotting across multiple points throughout the body – particularly neck, back, sacrum, ribs and legs. It will help manage these symptoms…It is my recommendation that the history proves that he has more function with physiotherapy than without, when up to three times a week across multiple body parts. He requires a complex treatment of up to three times a week…The physiotherapy is reasonably necessary.”
In the doctor’s next report to the respondent’s insurer dated 11 April 2021 (at page 777 of the ARD), the doctor warns against the insurer recommending unsupervised therapy for the applicant, and advises:
“The recommendations for structured self-managed pool and gym-based lift/load training concurrent to his prior recommendations is simply unworkable. Respectfully, there is no account for the fact that the aggravation of the spinal injury caused significant sleep disturbances and exacerbation of the ME/CFS. To put this program in place before the ME/CFS aggravation settles would only serve to cause deterioration. At this point the review of the exercise physiologist is still pending. Mr. Hallmann’s existing physiotherapist had experience of Mr. Hallmann’s back and ME/CFS since 2016, hence will have a much better idea of capacity and needs, and can work with the exercise physiologist to meet his needs. Unsupervised therapy at this point in time would be inappropriate and likely lead to significant exacerbation of both issues”.
The doctor provides a further report to the respondent’s insurer dated 9 September 2021 (at page 792 of the ARD). The report confirms that the doctor had been the applicant’s treating doctor since 2003, and that the applicant and the doctor had “discussed his work situation and injury at length on a monthly basis since July 2020”. The report advises that the applicant was continuing to have exercise physiology and physiotherapy treatment, and it warns of a guarded prognosis. It otherwise comments upon the respondent’s refusal at the time to pay various other treatment expenses.
The doctor’s next report to the respondent’s insurer is dated 31 October 2021 (at page 844 of the ARD). The doctor provides a detailed explanation as to the applicant’s unsuitable working environment from 27 March 2020 until September 2020, which he explains involved “repeated occasions of placing a load on his neck and upper back”. He states:
“As the history demonstrates, Mr. Hallmann was forced to utilise the chair from 27 March 2020 until 15 September 2020 – a period of 151 days. That is the reason for the seriousness of the aggravation and the ongoing symptomology once it moved beyond a point of recovery”.
He also explains, in answer to a specific question:
“The current diagnosis, subsequent conditions and consequential conditions are consistent with the aggravation of the underlying pre-existing (previously asymptomatic) spinal injury and ME/CFS with FM…But for the aggravation, the spinal injury was asymptomatic. But for the aggravation of the spinal injury, the deterioration of sleep would not have occurred and the aggravation of the ME/CFS would not have occurred. But for the aggravation of the spinal injury, the headaches and migraines would not have been as frequent and severe. But for the spinal injury and aggravation of the ME/CFS, his self-managed exercise program would not have ceased and his weight would not have increased as rapidly as it did (and it was going down as evidenced by the drop from February to April 2020). But for the sleep issues, his weight would not have increased rapidly. But for all these issues, the diabetes would not have occurred because glucose had been in control and stable for many years below a diabetic level (if it would have occurred, it would not have been accelerated as it was by the work-related injuries)…The current symptoms are solely due to the work-related events that have transpired from 27 March 2020 until present and remains ongoing.”
He further explains that the “aggravations are now chronic”, and that the respondent’s failure to fund the applicant’s treatment at the time had caused the applicant’s condition to deteriorate. The applicant’s prognosis was “exceptionally uncertain” and he was unlikely to recover his prior level of health and function.
He details the applicant’s exercise physiology and physiotherapy treatment as follows:
“He has now had about 4 months of exercise physiology. He has had some improvement of core and flexibility. EML’s refusal to provide a wearable to monitor his vitals means he cannot pace on aerobic activity and stay within a safe heart rate range and avoid exceeding his anaerobic threshold and thereby caused a crash and severe post-exertional malaise (PEM). Additionally, EML have refused to meet the costs of an echocardiogram to ensure there is no cardiac barrier to his light participation in aerobic activity (noting an existing cardiac issues). As such this has not proceeded. The insurer stifled progress and now, in ceasing it, will cause decline. Mr. Hallmann has significant weakness in his core, muscle strength issues, and significant impairment of range of movement in the back, legs, arms and neck. This will not progress without treatment…Mr. Hallmann had physiotherapy twice a week to alleviate the impact of the aggravation of the spine and surrounding musculature (including tightness and spasms), and ME/CFS and FM related muscle spasms, knotting, tightness, cramping and pain. The treatment also aimed to manage these issues and prevent deterioration. When he did exercise physiology his symptoms would worsen and physiotherapy would break this issue and alleviate it. EML have now cancelled it and Mr. Hallmann is report significant pain increase, lower back pain, neck pain, headaches, stabbing pain between the shoulders, spasms in the shoulder blades, burning sensations, spinal pain, right sacrum and hip pain and general deterioration. It is over 2 weeks since his last treatment.”
Finally, in answer to a specific question regarding the applicant’s ongoing treatment needs, the doctor opines that the applicant inter alia requires physiotherapy twice per week and exercise physiology sessions twice per week.
The doctor provides a further report to the respondent’s insurer dated 20 June 2022 (at page 1,141 of the ARD), following the determination of the Commission on 15 June 2022. The applicant had consulted with the doctor on six occasions between 11 November 2021 and 20 June 2022, and the doctor had noted his deterioration due to the respondent denying him treatment after 7 October 2021. The doctor explains the role of the lack of physiotherapy treatment in that deterioration:
“The purpose of the physiotherapy was to address the spasms that Mr. Hallmann was experiencing. The muscle issues arising spinal aggravation and the aggravation of muscle and joint issues from the aggravated ME/CFS were being alleviated to a point by way of regular physiotherapy. That suddenly ceased during October 2021. That cessation led to a spiral downwards in which spasms and pain increased and was ever present. He experienced increased tightness in the back, significant pain in the sacral area, increased headaches due to the tightness and spasms in the neck. He had periods of difficulty sitting and with mobility.”
The doctor then recommends that the applicant’s ongoing treatment include physiotherapy (two to three times per week) and exercise physiology (up to twice per week). He provides his rationale in this regard as follows:
“The physiotherapy assists in the management of the muscle spasms and muscle tightness pertaining to the aggravation of the spinal injury and the aggravation of the muscle spasms and tightness associated with the ME/CFS and FM. He will experience some decline as his body adjusts to the return to treatment. Treatment should be
2-3 times/week…The exercise physiologist assists in the restoration of his core stability and improving Mr. Hallmann’s flexibility. It will also play a role in the weight loss. Prior to removal, Mr. Hallmann was moving to two times per week. This will impact his recovery times and function due to the known post-exertional impact of exercise. He will be unlikely to work at these times due to inability to predict cognitive or physical function.”The doctor provides the respondent’s insurer with a further report dated 26 January 2023 (at page 1,215 of the ARD). The report generally provides an update regarding the applicant’s various treatments. In relation to physiotherapy, exercise physiology, gym membership, and personal training, the report explains:
“Mr. Hallmann has been regularly attending Mr. Emile du Plessis, Physiotherapist, at PhysioPlus since July 2022. The treatment has been addressing the original aggravation of his ME/CFS and spinal injury aggravation as well as the deterioration caused by the 9-month break from mid-October 2021…Mr. Hallmann has been periodically attending Mr. Tim Boyd, Exercise Physiologist, at PhysioPlus since about July 2022. The treatment has been addressing the original aggravation of his ME/CFS and spinal injury aggravation and the deterioration caused by the 9-month breach
from mid-October 2021…I referred Mr. Hallmann for supervised rehabilitation on 26 September 2022 with an exercise physiologist/personal trainer at Byron Bay gym. I provided EML a short report dated the same day. Mr. Hallmann advises that he received a quote from Mr. Jason Mickan, Exercise Physiologist, on 11 October 2022. Mr. Hallmann states he forwarded the invoice to EML on 12 October 2022. He advised he was given verbal advice that this would be approved for 3-months to start.
Mr. Hallmann paid for a 3-month membership on 25 October 2022. On 30 November 2022, EML approved the personal training. This would seem like an inordinate delay, and a waste of the membership. He was able to obtain an appointment on 15 December 2022 for an initial review and has had several appointments in recent weeks. At this point there is nothing to report.”
The doctor’s next report to the respondent’s insurer is dated 2 June 2023 (at page 1,233 of the ARD). The report mainly deals with the applicant’s travel and accommodation requirements following a notice issued by the respondent pursuant to s 78 of the 1998 Act dated 25 May 2023, which denied liability in relation to a number of these requirements. The report does however confirm ongoing monthly consultations between the doctor and the applicant, and it provides a helpful summary of the aggravations and consequential conditions sustained by the applicant due to his work with the respondent between 27 March 2020 September 2020. The doctor opines that these aggravations and consequential conditions are still present.
The aggravations related to spinal injuries, ME/CFS with F, orthostatic intolerance, gastrointestinal issues, sleep issues, hypogonadism, visual issues, sleep apnoea, and cardiac issues. The consequential conditions related to blepharitis, weight gain, fatty liver, lung dysfunction, metabolic syndrome, diabetes, sleep disturbances, dental issues, migraines, and psychological issues.
The doctor also refers to the applicant’s motor vehicle accident on 15 October 2022, which he opines led to an aggravation of the aggravations and consequential conditions explained in the paragraph above, as well as a right elbow injury, and a right hip injury.
The doctor finally provides his most detailed report (of 161 pages plus annexures) dated 13 August 2023 (at page 1,248 of the ARD). He commences the report by making it clear to the respondent’s insurer that “ME/CFS with FM is not a condition that goes away and requires ongoing, indefinite medical support to minimise the risk of deterioration and to optimise the patient’s ability to participate in society”.
In relation to the various forms of medical treatment required by the applicant, the doctor details diabetes treatment, gastrointestinal treatment, cardiac treatment, dental treatment, sleep studies and treatment, attendances upon neurosurgeons and investigations, attendances upon orthopaedic surgeons and investigations, the use of IV Saline, physiotherapy treatment, chiropractic treatment, exercise physiology/personal training treatment, in-person consultations with the doctor, as well as domestic assistance. The doctor also details the applicant’s need for aids and equipment, including a Vela 700E chair, a robot vacuum cleaner and mop, a suitable lounge, as well as a suitable mattress and base.
The doctor outlines the background to the applicant’s need for each form of treatment, together with the respondent’s insurer’s history (or lack thereof) of approving each form of treatment, as well as the doctor’s current recommendations (with reasons) regarding each form of treatment. The report is highly critical of the respondent’s insurer’s failures in the past to properly and promptly approve treatment, despite the doctor’s continual warnings regarding how delays in treatment will adversely impact the applicant’s health and cause deterioration.
In relation to physiotherapy treatment, the doctor provides a researched evidence base for the use of physiotherapy in treating ME/CFS with F (by referring to various publications), and he also outlines the applicant’s history of physiotherapy treatment in treating his ME/CFS with F from the date of its diagnosis in 1997.
He notes that since he consulted with the applicant on 1 July 2020, he has consistently recommended physiotherapy treatment for the aggravations of the applicant’s spinal injuries and ME/CFS with F, following his work with the respondent after 27 March 2020. He also notes that when his recommendations in this regard have not been accepted by the respondent’s insurer, the applicant’s range of movement declined (which he evidences by referring to data recorded by both the applicant and Plessis) as did his sleep onset, duration and quality (which he evidences by referring to continuous positive airway pressure data).
The doctor advises that the applicant’s current physiotherapy requirements are to undergo three sessions per week. The purpose of the physiotherapy is both to arrest the deterioration of the applicant’s spinal injuries and his ME/CFS with F, as well as to alleviate the aggravations to both conditions from the applicant’s day-to-day activities, including his necessary exercising. He explains that:
“physiotherapy acts as a circuit breaker to the impact of aggravations so that
Mr. Hallmann doesn’t have a cumulative aggravation that simply results in a complete inability to participate or function. Alleviating as much as possible the impact of aggravations allows him to participate in his exercise”.The doctor concedes that the requirement for three physiotherapy sessions per week is an unusual approach, but maintains that it is necessary for the applicant due to the complexity of his conditions, as well as the “aggravators that are unnecessary perpetuating elements that impede treatment outcomes” (these aggravators being due to the respondent’s failure to approve treatment in the past). There is no “viable alternative” to the physiotherapy approach, especially as self-management is inappropriate due to the applicant requiring assistance to ensure that he does not adversely react to stretching and exercising; to ensure monitoring of his breathing and consciousness; to monitor his exercises and breaks; to assist him to engage in stretching; to monitor his body temperature and risk of fainting, as well as to generally supervise him to ensure “that he does what is required on a consistent and appropriate basis to reduce injury risks and maximise benefits”.
The doctor summarises his opinion:
“The physiotherapy treatment is a key element of the mixed modality approach to
Mr. Hallmann’s case.Mr. Hallmann has multiple injuries and conditions. Some of these issues require attention with physiotherapy. The primary purpose of the physiotherapy is as follows:
• address the musculoskeletal impact of the aggravation of spinal injuries;
• address the musculoskeletal impact of the aggravation of the orthostatic intolerance, including swelling of limbs;
• address the musculoskeletal impact of the aggravation of the ME/CFS and FM;
• address the musculoskeletal impact of the aggravation of spinal injuries arising from the 15 October 2022 motor vehicle accident;
• address the musculoskeletal impact of the aggravation of the ME/CFS and FM arising from the 15 October 2022 motor vehicle accident;
• alleviate the deterioration of the above from participation in the exercise physiology/gym program and day-to-day activities;
• arrest the deterioration of the above from participation in the exercise physiology/gym program and day-to-day activities;
The physiotherapy addresses the following specific issues related to the aggravated spinal issues:
• to address the ‘tightness’, ‘stiffness’, ‘knotting’ and ’spasms’ in the muscles in the cervical, thoracic and lumbar spine regions arising out of the original and ongoing aggravation of the spinal injuries;
• to address the muscle pain in the muscles in the cervical, thoracic and lumbar spine regions arising out of the initial and ongoing aggravation of the spinal injuries;
• to mobilise the joints in the cervical, thoracic and lumbar spine regions arising out of the initial and ongoing aggravation of the spinal injuries;
• to address the above issues aggravated by the 15 October 2022 work-related motor vehicle accident;
• to apply acupuncture into the various trigger points on the back, neck and legs as required;
The physiotherapy addresses the following specific issues related to the issues arising out of the 15 October 2022 motor vehicle accident:
• to address issues arising out of the 15 October 2022 work-related motor vehicle accident including pain in the right elbow joint, right hip and chest, and the surrounding muscles and fascia in these regions;
The physiotherapy addresses the following specific issues related to the aggravated ME/CFS and FM:
• to address the ‘tightness’, ‘stiffness’, ‘knotting’ and ’spasms’ in the muscles in the spine, shoulders, limbs and other regions arising out of the original and ongoing aggravation of the ME/CFS with FM;
• to address the muscle pain in the muscles in the arising out of the initial and ongoing aggravation of the ME/CFS with FM;
• to mobilise the joints in the cervical, thoracic and lumbar spine regions arising out of the initial and ongoing aggravation of the ME/CFS with FM (which overlaps the spinal injuries);
• to address the above issues aggravated by the 15 October 2022 work-related motor vehicle accident;
• to apply acupuncture into the various trigger points on the back, chest, neck, arms and legs as required;
Contrary to the belief of the Independent Physiotherapist, Mr. Hallmann does not have a simple spinal injury that has allegedly resolved and nothing more.
There are multiple conditions, and one in particular that is of significant relevance to the physiotherapy, is the ME/CFS with FM.
The ME/CFS with FM reacts adversely to stressors such as stressful events, activity, physical trauma or exercise.
In the case of exercise, particularly if it is completed incorrectly, inappropriate for the condition or falls outside of the capacity of the individual. Graded Exercise Therapy, being an approach with graduated increases (often ignoring pain or fatigue), is not appropriate and not recommended for ME/CFS under the latest research. It can and does cause harm. Mr. Hallmann’s history of using this approach, has resulted in cessation after three months, due to adverse impacts including the onset of flu-like symptoms. Moreover, his specific testing for ME/CFS, being a 2-day cardiopulmonary exercise test and mRNA gene expression test (following exercise) demonstrated a physical reaction to aerobic exercise that was adverse.
The current exercise program will be conducted slowly. The progress will be slow. There will be setbacks. Whilst the exercise is required to address the spinal injuries, it adversely impacts the ME/CFS with FM. There must therefore be patience, care and support in the form of physiotherapy and chiropractic to alleviate the deterioration.
The insurer’s recent correspondence to Mr. Mickan in February, urges the pushing of Mr. Hallmann’s treatment. Similarly, the insurer has apparently communicated with the exercise physiologist, chiropractor and physiotherapist, seeking to push for a progression in the conditions with a view to recovery, self-management and removal from treatment.
This is not appropriate in the current situation due to the nature of the conditions that have been aggravated (and remain aggravated), and the onset of new, consequential conditions that are impacting Mr. Hallmann.
The approach of the insurer represents a fundamental disregard for the complexity of the situation and the safe delivery of treatment. The insurer is pushing for a resolution of the injuries. This push ignores:
• the fact that the decline caused by the insurer between October 2021 and July 2022 has not resolved;
• the fact that the insurer continues to create barriers having delayed many investigations and treatments for issues that directly or indirectly impact the issues that are being affecting the efficacy of treatment;
• the fact that the 15 October 2022 motor vehicle accident represented another significant aggravation that created significant aggravations and caused further decline;
That expectations of the insurer do not reflect the situation as it is and are unrealistic.
In the case of the ME/CFS with FM, as has been repeatedly pointed out in my reports since 2020, once the condition has been aggravated, such deterioration will often become permanent, with no improvement possible. If this were the situation, treatment would be directed at prevention of deterioration.
Arresting deterioration of the existing conditions is a valid objective for the physiotherapy in the workers compensation context.
To date, there has been additional deterioration despite the physiotherapy because of avoidable intervening events that are causing such deterioration (eg actions of the insurer).
The physiotherapy must be carried out with exercise physiology and chiropractic. Each modality addresses a different are of the body that the other does not and cannot address. The exercise will aggravate the various conditions and will require alleviation in order to participate in the exercise program. The physiotherapy will alleviate that deterioration and allow more effective participation in that program.
The primary focus until this year has been the spinal injuries. With the introduction of the gym program in late January 2023 and the exacerbation it caused of the 15 October 2022 motor vehicle accident injuries (particularly the right elbow, right hip, shoulders and chest), Mr. Hallmann increased physiotherapy to 3 times per week on 3 March 2023. He had a third treatment on 17 March 2023 and 31 March 2023 as well. The inclusion of the third treatment allows a focus on the limbs, allowing Mr. du Plessis to focus his attentions of the impact of the motor vehicle accident (and exacerbations) and the impact of the aggravated ME/CFS with FM, which has had minimal attention (incidental to the spinal injuries) due to the insurer disputing that the ME/CFS and FM as being part of the claim.”
In relation to exercise physiology and personal training treatment, the doctor first explains the risks and limitations that the applicant’s exercise program is necessarily subject to as a result of his ME/CFS with F. Graded exercise therapy is not appropriate and potentially harmful. A self-managed program is also not possible.
Prior to the aggravation of his ME/CFS with F from 27 March 2020, the applicant was self-managing his exercise program, but since then, the doctor opines that the aggravation to the condition, as well as the aggravation to the applicant’s spinal condition, have led to the need for a supervised exercise program, due to:
(a) the applicant needs to be reminded to breathe when conducting his exercises or stretches, by his exercise physiologist and personal trainer;
(b) the applicant’s oxygen levels drop to low levels during exercise, and need monitoring;
(c) the applicant needs monitoring for signs of fainting, due to his orthostatic intolerance;
(d) the applicant’s memory issues arising from his ME/CFS with F mean that he needs to be often reminded as to the proper manner of exercising;
(e) the applicant needs to be reminded not to push himself when undertaking his exercises, in order to protect himself from post-exertional malaise;
(f) the applicant experiences sudden weakness in his limbs and can collapse, and
(g) the applicant’s spinal injuries require supervision in order to prevent further injury during exercise.
In relation to the exercise plan that he recommends for the applicant, the doctor advises:
“Mr. Hallmann’s treatment will be progressed by the exercise physiologist and personal trainer over time. Mr. Hallmann has not been allowed to progress out of the first stage because of the barriers that have been created by the insurer.
Stage 1 is focused on core strength and flexibility. Once the has been stabilised, the program can progress to Stage 2 which focuses on retaining the progress in stage 1 as well as building up aerobic capacity, endurance and general strength. If Mr. Hallmann can tolerate Stage 3, the exercise program might be able to progress to Stage 3 and work towards weight loss.”
He explains:
“Exercise physiology is a clinical intervention into a health issue. It seeks to prevent or manage a chronic disease or injury and restore, where possible, physical function and health. A gym program is a tool in the exercise physiologists tool kit. A personal trainer ensures that the participant is able to participate fully, safely and consistently in that program”.
He also explains that the management of the applicant’s spinal injuries is likely to be “life-long”, and that it will take years for the goals of his exercise program to be achieved. He records those goals as:
(a) to arrest the decline in the applicant’s various conditions;
(b) to alleviate any further deterioration in the conditions, and
(c) to improve the overall status of the conditions – improving flexibility, strengthening the core and musculature around the spine, as well as reducing weight (which would then have positive effects in relation to the applicant’s diabetes, metabolic syndrome, endocrinology function, cardiac risks, lung dysfunction, and sleep apnoea).
The doctor recommends that the applicant needs one session with an exercise physiologist per week and two sessions with a personal trainer per week. He advises that the exercise program must be carried out with physiotherapy and chiropractic treatment in support as the program will “aggravate the various conditions and will require alleviation in order to participate”.
The doctor does not see that there is any alternative treatment to the applicant’s need for an exercise program managed by an exercise physiologist and personal trainer. He summarises:
“The exercise physiology (including the supervised gym program) treatment is another key element of the mixed modality approach to Mr. Hallmann’s case.
Mr. Hallmann has multiple injuries and conditions. Each issue requires consideration in designing the exercise physiology program. He requires:
• an exercise physiologist to create and amend, in stages, the exercise program;
• an exercise physiologist to supervise the safety of the patient and effectiveness the elements, of the exercise program;
• an exercise physiologist to oversee and guide personal trainer the exercise program; and
• A personal trainer to manage the exercise program in the gym;
This is not a simple spinal injury and nothing more (as Mr. Silcock suggests).
There are multiple conditions, and particularly ME/CFS. The ME/CFS reacts adversely to exercise, particularly if it is overdone or completed incorrectly. The program will be conducted slowly. The progress will be slow. The insurers pushing of the personal trainer, and apparently the exercise physiologist, chiropractor and physiotherapist, to push for progress in short time frame, is simply not appropriate. It shows a fundamental disregard for the complexity of the situation and the safe delivery of treatment. Moreover, it fails to recognise that arresting deterioration of the existing conditions is a valid goal for this program as well.”
Importantly, the doctor’s 13 August 2023 report also contains (as its fifth annexure) a summary plan in relation to the applicant’s overall treatment for his accepted injuries, which describes 20 goals for the treatment, some of which are described however as only possible or even remote. The date for the achieving of the goals is stated to be 31 May 2025. The plan however specifically refers to how often each treatment modality requires review, which includes:
(a) physiotherapy being reviewed every eight sessions;
(b) exercise physiology being reviewed every eight sessions, and
(c) personal training being reviewed every 24 sessions.
Of relevance to the issues that I need to determine, the ARD also contains:
(a) a report from Dr Cleaver (orthopaedic surgeon) dated 3 March 2021 (at page 774) – the report recommends physical therapies and advises that he has referred the applicant for a back rehabilitation program in an aquatic hydrotherapy setting;
(b) a report from Dr Lee (endocrinologist) dated 2 November 2021 (at page 1,120) – the report stresses the need for the applicant to achieve weight loss, and concurs with Dr Bird’s proposed treatment options with exercise-based therapies;
(c) a report from Dr Kim (respiratory and sleep medicine physician) dated 21 November 2022 (at page 1,210) - the report details the applicant’s respiratory and sleep issues and specifically advises Dr Bird that:
“…this type of complex overlap syndrome is difficult to manage with a single remedial approach and really requires a gentle multidisciplinary involvement through an astute coordinating physician which I understand you are serving in that capacity”;
(d) a large number of certificates of capacity from Dr Bird – the certificates between pages 265 and 285 (while all dated 26 September 2022) were variously in fact signed by the applicant and Dr Bird on 29 March 2023, 1 May 2023, 28/29 May 2023, 28 June 2023, 2 August 2023, 30 August 2023, and 9 October 2023 – the certificates all refer to the diagnosis of the applicant’s work-related injury as “exacerbation of existing back/cervical spine/neck injury and then of existing ME/CFS with Fibromyalgia and other conditions” - in relation to treatment, the certificates all recommend, inter alia, physiotherapy treatment two-three times per week, ME/CFS specific exercise therapy with an exercise physiologist, a weight loss program and a gym program;
(e) a request for a report from an “independent consultant” addressed to Silcock from the respondent’s insurer dated 24 March 2023 (at page 2,816) – the request only refers to the applicant’s type of injury as “originally exacerbation of existing back cervical spine/ne”, and it only provides a brief history of “exacerbation of existing condition due to work from home – COVID 19 ****COMPLEX CLAIM****”;
(f) an email from the respondent’s insurer to the applicant on 12 May 2023 (at page 648) in which the insurer attaches the documents provided to Silcock – although the attachments to the email are not reproduced with the email in the ARD, it would appear that the only documents provided to Silcock were an unidentified “IME File review”, an identified “IMP Telehealth”, an unidentified “IME Telehealth Occ Phys”, two radiological reports in relation to the whole spine and the right hip, one physiotherapy request form, Dr Bird’s reports dated 26 January 2023 and 20 June 2022, two Certificates of Determination from the Commission, a certificate of capacity dated 20 February 2023, an unidentified “EML Report – 20 June 2022”, a gym referral, and three unidentified and untitled documents, and
(g) Dr Bird’s abbreviated curriculum vitae (at page 1,154) – attached to his 20 June 2022 report - referring to his general practitioner medical qualifications and his “special interest in the treatment of chronic fatigue syndrome (CFS) and related disorders” beginning in about 1999 – and also referring to him running a chronic fatigue syndrome outpatient service between 2005 and 2012, as well as his work from 2012 to the present being at the National Institute of Integrative Medicine with a special interest in chronic fatigue syndrome, fibromyalgia and related disorders.
Respondent’s evidence
Having considered the Reply in its entirety, I would note that it also contains many documents not specifically relevant to the issues which I need to determine. I will be concentrating in these reasons only on those documents which specifically relate to the issues which I need to determine (see paragraph 17 above).
The respondent in essence relies upon the opinion of the physiotherapist, Silcock. It does not rely upon any opinions from doctors with medical qualifications. Silcock’s report is dated 6 April 2023 and found at page 93 of the Reply. The report is a Stage II independent review of the applicant’s physiotherapy and exercise physiology treatment, and did not involve a physical examination of him. Silcock says:
“The purpose of the New South Wales Insurance Regulatory Authority Stage II independent review is to make recommendations regarding additional treatment that can be considered necessary to conclude Mr Hallmann’s rehabilitation following his 18 May 2020 work-related injury in a way that affords treating physiotherapist Mr Emile du Plessis and treating exercise physiologist Mr Boyd sufficient opportunity to canvass the treatment options available to them within the scope of their respective practices.”
It is unknown from the report what history and what documentation were provided to Silcock. He only refers to the applicant as having developed low back and neck symptoms, together with a range of comorbidities including ME/CFS with F, obesity, sleep apnoea, psychological factors, and subsequent motor vehicle accident injuries. He notes that the applicant remains unfit for any work and provides his opening opinion as a result:
“Issued certificates of capacity confirm that treatment provided to Mr Hallmann has been unsuccessful in assisting him to maintain any capacity for employment. This makes it difficult to demonstrate that treatment options being pursued are realising an outcome that is superior to pursuit of a less interventionist approach.”
Silcock then deals with Dr Bird’s recommendations as follows:
“I note that Dr Bird has sought to outline his expectations and opinion as to the various roles of the exercise physiologist, physiotherapist and chiropractor. This explanation does not align with the scope of practice of the exercise physiologist, physiotherapist and chiropractor. Nor does it acknowledge the importance of ensuring that the integrity of the clinical reasoning process is maintained in order for Mr Hallmann’s treatment needs to be met. This is especially important in Mr Hallmann’s case where it is difficult to assert that aspects of his treatment are not be inadvertently complicating rather than facilitating his recovery.”
In relation to exercise physiology treatment, Silcock advises:
“The role of the exercise physiologist is to provide functionally focused exercise assist an injured worker to improve work capacity once pathology is stable. It is anomalous that functionally focused exercise would constitute reasonably necessary medical treatment when an injured worker is considered unsafe to attempt any sort of work or work-related activity according to their issued certificates of capacity.”
In relation to physiotherapy treatment, Silcock compares allied health recovery request forms submitted by Plessis in relation to the applicant, and notes that the action plans in the forms does not seem to have substantially changed during over 100 physiotherapy sessions. He opines that it:
“…is difficult to assert that one injury will continue to require treatment beyond six months post onset but even more difficult to assert that multiple injuries would continue to require assessment and treatment at exactly the same frequency over a protracted period of time”.
Silcock then outlines discussions that he had with Plessis and Boyd regarding his concerns as to the applicant’s treatment regime. He finally makes the following recommendations:
“It is recommended that upon completion of the physiotherapy and exercise physiology sessions that have already been approved that a period of six months of self-management be tried. It is recommended that during this time Mr Hallmann will implement the strategies described in submitted allied health recovery request forms to have been provided to him over the past two years…This recommendation acknowledges the need to demonstrate that provided treatment is yielding an outcome that is superior to what would be achieved through pursuit of an alternative treatment approach…This recommendation acknowledges the need to ensure that treatment provided in good faith is not serving to inadvertently complicate Mr Hallmann’s recovery for either physical or psychosocial reasons…I realise Mr Hallmann’s case is a complex one with many relevant issues that lie outside the scope of the independent physiotherapy consultant. I have endeavoured to remain focused on the issues that fall within the scope of the independent physiotherapist’s expertise…If physiotherapy or exercise physiology treatment continues to be advocated for as being reasonably necessary for Mr Hallmann’s 18 May 2020 work-related injury it is recommended that a stage III independent review be undertaken”.
The only other expert evidence contained in the Reply is an occupational therapist’s report dated 10 October 2022 (at page 104), which makes recommendations regarding assistance required by the applicant with his activities of daily living. I cannot see its relevance to the issues which I need to determine and will not be referring to it further unless directed to aspects of it during the parties’ submissions.
Otherwise, the Reply only contains correspondence initiated by the respondent’s insurer or its solicitors, including:
(a) letters advising the approval of exercise physiology treatment for the applicant dated 28 July 2022 (at page 10) and 30 November 2022 (at page 13);
(b) letters advising the approval of physiotherapy treatment for the applicant dated 28 July 2022 (at page 16) and 24 March 2023 (at page 19), and
(c) a letter advising the approval of gym membership for the applicant dated 22 February 2023 (at page 22).
Respondent’s submissions
The respondent’s submissions were given orally at the arbitration hearing and have been recorded. They form part of the Commission’s record and I will therefore not repeat them in detail.
The submissions were brief and encompassed:
(a) the respondent’s reliance upon the opinion of Silcock as its basis for refusing to pay for the applicant’s ongoing physiotherapy, exercise physiology, personal training, and gym membership expenses;
(b) the submission that there was no evidence to support any submission by the applicant for him to be awarded lifetime coverage for physiotherapy treatment, exercise physiology, personal training, and gym membership – it was also questionable as to whether I possessed the jurisdictional power to make such an award, and
(c) the submission that if I did not accept the opinion of Silcock, the applicant should be awarded ongoing physiotherapy treatment, exercise physiology, personal training, and gym membership in accordance with the last documented requests for approval of such treatment, being:
(i)eight weeks of physiotherapy treatment three times per week – see request at paragraph 36(k) above;
(ii)eight weeks of exercise physiology once per week – see request at paragraph 37(d) above;
(iii)13 weeks of personal training twice per week – see request at paragraph 38(b) above, and
(iv)gym membership for three months – see request at paragraph 39 above.
Applicant’s submissions
The applicant has lodged extensive written submissions, encompassing 180 pages. The submissions form part of the Commission’s record and I will therefore not repeat them in detail. They are repetitive and also deal with issues which are not directly relevant to the issues that I need to determine.
The applicant refers me to the determination of Member Isaksen in the previous Commission proceedings between him and the respondent. He confirms that the Member accepted the opinions of Dr Bird and found compensable injuries in the forms of aggravated spinal injuries, aggravated ME/CFS with F, weight gain, sleep issues, aggravated orthostatic issues, aggravated hypogonadism, aggravated endocrine disturbances, aggravated gastrointestinal issues, aggravated visual issues, aggravated liver issues, consequential diabetes, sacrum injuries, pelvis injuries, and other ME/CFS with F related issues.
The applicant then points to the consistent opinions from Dr Bird regarding how the applicant’s various conditions are intertwined. He submits:
“There is a complexity to the Applicant’s situation, particularly arising out the of the history of the ME/CFS with FM. Aggravation/Exacerbation of the ME/CFS feedbacks into all the pre-existing consequential conditions and contributed to the onset of new consequential conditions. The spinal injuries aggravated the ME/CFS and the ME/CFS aggravates the spinal injury. The decisions of the WCC and PIC have made this patently clear and so has the medical evidence. It is fact.”
The applicant submits that the respondent’s 4 May 2023 notice pursuant to s 78 of the 1998 Act is defective as not particularising adequately the reasons for the respondent’s denial of liability and the issues relevant to its decision in this regard. The issues disputed by the respondent are not fully and clearly stated in plain language. The respondent should therefore be “barred from arguing before the Member that the Applicant failed to satisfy it that the medical expenses, being Physiotherapy, Exercise Physiology, a Personal Trainer and Gym Membership, were not reasonably necessary”.
The applicant then deals with the “credibility” to be afforded to Dr Bird and Silcock. He emphasises that Dr Bird has treated him for 21 years and is more than “a mere GP” considering his expertise and experience in treating ME/CFS with F. His opinions are evidence-based via objective testing, and grounded in literature. The applicant submits that:
“…based on the presumption accorded a nominated treating doctor, combined with his demonstrated expertise in the area of ME/CFS with FM in particular, and his evidence-based opinions, the Member should accord Dr. Bird the greatest weight because his is ‘in the best position to offer an opinion’ [emphasis in original], particularly with respect to causation and treatment”.
Silcock’s opinions however “should be accorded no weight” as:
(a) he has no expertise in dealing with patients with ME/CFS with F and the applicant’s other consequential injuries – his report does not demonstrate that he possesses any specialised knowledge in this regard, it does not identify the documentation that he reviewed in order to provide his opinions (in circumstances where he did not examine the applicant), and it does not as a result take into account or comprehend the full effect upon the applicant of the aggravated ME/CFS with F and his other consequential injuries (Silcock only briefly mentioning obesity, sleep apnoea, and psychological issues, but failing to mention any of the other multiple consequential injuries);
(b) there is no factual basis for his opinions – the applicant notes that he was provided with the most superficial description of the applicant’s work-related injuries with no mention of the applicant’s ME/CFS with F and the applicant’s other consequential injuries (see paragraph 75(e) above), and that (see paragraph 75(f) above) he was not provided with most of Dr Bird’s available reports, any of the applicant’s statements, Dr Cleaver’s report, Dr Lee’s report, and all but one of Plessis’ physiotherapy request forms – the lack of information and documentation provided to him by the respondent’s insurer (especially in circumstances where he did not engage directly with the applicant) mean that he has not been provided with a ‘fair climate’ for him to express his opinions – he has also as a result obtained an incorrect history that there had been no variation in physiotherapy attendances, and further he has not appreciated the outcomes envisaged (“not tied to a return to work only”) by Dr Bird’s treatment and management regime, nor appreciated the deterioration in the applicant’s condition that occurred when the respondent’s insurer refused to approve treatment in accordance with that regime;
(c) he has misrepresented “the literature” – he refers to 17 articles in his report, but does not provide copies of them (although some of them have been attached to Dr Bird’s 13 August 2023 report) – the applicant submits that the articles do not support the position in his report and are “a deliberate attempt to mislead”;
(d) he has acted as an advocate for the respondent – the applicant submits that due to his lack of expertise, his lack of information and documentation in order to conduct his assessment in a ‘fair climate’, and his misrepresentation of the articles referred to in his report, he “has abandoned the role of an independent expert and firmly entered into the realm of advocate from the outset of the investigations process”;
(e) he has failed to comply with Procedural Direction PIC4 – in that his report fails to mention the Procedural Direction, does not provide a list of the documents that he reviewed, does not provide copies of the 17 articles referred to in the report, does not outline the applicant’s tests and investigations, and does not acknowledge his lack of expertise – there is also no evidence of him requesting further information or documentation from the respondent, and
(f) Dr Bird’s opinions “outweigh” his opinions – the applicant emphasises Dr Bird’s experience with ME/CFS with F (see paragraph 75(g) above), Dr Bird’s experience in treating the applicant (being responsible for all his specialist and allied health professional referrals since 2003), Dr Bird’s first hand witnessing of the deterioration of the applicant’s condition, Dr Bird’s extensive engagement with the respondent’s insurer, as well as Dr Bird’s engagement:
“…with the facts of the case, including the actual injuries, the mechanisms of injuries, the specific issues and limitations affecting the injuries and the progress of the treatment and management as measured by various instruments and other data”,
and Dr Bird’s “appropriate and factually grounded consideration of the various benefits and needs for the treatment and management” of the applicant’s various injuries - the applicant submits:
“Dr. Bird has actively engages with the Applicant’s history within his reports, and used that to direct the investigations, management and treatment of the Applicant, as well as provide detailed accounts of his reasoning for the insurer to assist them to arrive at decisions pertaining to the Applicant…
Dr. Bird’s reports have demonstrated an engagement with the facts as a whole, not in isolation. Dr. Bird’s reports are factually accurate. He does not work via omission. He includes facts that are both supportive and non-supportive of the Applicant. He includes all relevant information, including non-supportive information, from investigations, pathology reporting, specialists and other sources”.In referring to and relying upon Dr Bird’s opinions therefore, the applicant submits that there is ample evidence to prove his ongoing need for physiotherapy treatment, gym membership, personal training, and exercise physiology. He specifically seeks the following orders from the Commission:
“1. ORDER 1 – That the Respondent is to pay, pursuant to section 60(1)(a) of the Workers Compensation Act 1987, the cost of physiotherapy treatment, thrice weekly for a complex treatment, for up to 52 weeks a year;
2. ORDER 2 – That the Respondent is to pay, pursuant to section 60(1)(a) of the Workers Compensation Act 1987, the cost of exercise physiology treatment, once weekly for up to 52 weeks a year;
3. ORDER 3 – That the respondent is to pay, pursuant to section 60(1)(a) of the Workers Compensation Act 1987, the cost of personal training, twice weekly, for up to 52 weeks a year;
4. ORDER 4 – That the respondent is to pay, pursuant to section 60(1)(a) of the Workers Compensation Act 1987, the cost of a Gym Membership, for up to 52 weeks a year”.
The applicant seeks that these orders be made for an indefinite period into the future, essentially seeking “lifelong treatment”. He submits the following:
(a) the ARD is clear as to the orders sought in this regard;
(b) such orders would prevent the respondent’s insurer from delaying his treatment in the future, thus meeting the objective outlined in s 3 of the 1998 Act in allowing for the prompt, effective, and proactive management of his injuries to assist in securing his health, safety and welfare – it would allow for the efficient and effective operation of the workers compensation scheme in his circumstances;
(c) such orders would prevent the deterioration of his condition which occurred in the past (according to both his statement evidence and Dr Bird’s evidence) when the respondent’s insurer did not approve his treatment needs;
(d) such orders would prevent the respondent’s insurer from again breaching its model litigant obligations;
(e) such orders would “secure the health of the worker”;
(f) such orders would promote his vocational rehabilitation, in order to assist a return to work;
(g) such orders would be fair;
(h) such orders would not be contrary to s 59A of the 1987 Act which “puts in place limitations on the duration of a workers entitlements to treatment, however none of those situations are relevant to the Applicant’s claim”;
(i) there is no bar to me making such orders – s 60(5) of the 1987 Act makes this clear;
(j) Dr Bird has made it clear in multiple references that his ME/CFS with F is a lifelong condition from which there is no recovery, and the treatment for which is likely to be lifelong – similarly Dr Bird has made it clear in multiple references that the treatment of his spinal injuries is likely to be lifelong and will necessitate physiotherapy and chiropractic treatment - he specifically relies upon Dr Bird’s 13 August 2023 report and, inter alia, the extract from that report produced at paragraph 73 above (in relation to the applicant’s treatment program being slow, the achievement of the goals of the program taking years, and the management of his spinal injuries likely to be lifelong), and
(k) Dr Bird’s “references to lifelong treatment and lifelong injuries, need to be read in their context and not merely considered in their ‘cut and paste’ extraction”.
The applicant then submits that, despite Silcock’s view, a mixed modality treatment program is reasonably necessary for the treatment of his work-related injuries. Dr Bird has extensively explained why, and the applicant specifically refers to the extracts from his 13 August 2023 report produced at paragraphs 66 and 73 above.
The applicant then addresses the specific treatment modalities that are the subject of this dispute:
(a) in relation to physiotherapy treatment, the applicant refers to his 7 October 2023 statement, which outlines its effectiveness in alleviating his symptoms (see paragraph 34 above) and which describes his deterioration when it has been removed in the past – he also refers to Dr Bird’s “thorough review” (see paragraph 66 above) of the reasons for physiotherapy treatment being reasonably necessary treatment, which included an analysis of data and publications as well as the history of the applicant’s symptoms (especially his deterioration when not undergoing physiotherapy treatment); which developed a detailed treatment plan (see paragraph 74 above) for the applicant, and which reviewed and criticised Silcock’s report;
(b) in relation to exercise physiology, the applicant also refers to his 7 October 2023 statement, as well as Dr Bird’s explanation (see paragraph 66 above) as to why physiotherapy treatment and exercise physiology must be used together in the applicant’s case;
(c) in relation to personal training, the applicant again relies upon his 7 October 2023 statement as well as Dr Bird’s reports – he emphasises how in the past, he has received significant benefit from the combined and co-ordinated efforts of his personal trainer, his physiotherapist, and his exercise physiologist – he also emphasises why his exercise program needs the assistance of a personal trainer as he is not able to self-manage it – see Dr Bird’s opinion (at paragraph 68 above), and
(d) in relation to gym membership, the applicant again emphasises Dr Bird’s opinion as to his need for a supervised gym program, as well as his need for gym membership in order to undertake his exercise physiology and personal training.
I find Silcock’s report to be therefore unreliable in many respects, and I do not intend to afford it much weight. I accept the submissions of the applicant at paragraphs 91 and 92(f) above. I will be accepting the opinions of Dr Bird regarding the applicant’s treatment needs. These opinions are consistent with the applicant’s and his partner’s description as to the deterioration and improvement in his condition depending upon the availability of physiotherapy treatment and exercise physiology. The opinions are also consistent with the reports (albeit somewhat aged and brief) from Drs Cleaver, Lee, and Kim (see paragraph 75 above), as well as the various treatment requests made by Plessis, Boyd and Mickan (see paragraphs 36-38 above).
Dr Bird considers the applicant’s current treatment needs in respect to his accepted injuries as including one session with an exercise physiologist per week and two sessions with a personal trainer per week (see paragraph 72 above). Gym membership is of course necessary with this exercise regime. Dr Bird also considers the current treatment needs to include three physiotherapy sessions per week (see paragraphs 64-65 above), and he explains that while that requirement may seem “unusual”, it is necessary due to the complexity of the applicant’s conditions.
I find the treatment needs recommended by Dr Bird in this regard to be reasonably necessary for the treatment of the applicant’s spinal injuries and ME/CFS with F.
In considering the matters referred to in Rose and Diab, I find:
(a) Dr Bird provides detailed reasoning as to why the treatment needs that he has recommended are appropriate having regard to the applicant’s complex spinal and ME/CFS with F conditions – the treatment is appropriate because it has alleviated the conditions in the past, and its removal has led to a deterioration in the conditions in the past;
(b) in relation to alternative treatment, the applicant advises (see paragraph 34 above) that medication has not been effective in alleviating his symptoms in the past, and that only physiotherapy treatment of three visits per week and exercise physiology of two to three visits per week has been effective in the past in alleviating those symptoms – further, Dr Bird sees no “viable alternative” to the treatment needs that he has recommended, specifically opining that the self-management alternative (the only alternative put forward by Silcock) is inappropriate;
(c) the costs of the treatment needs as recommended by Dr Bird cannot be said to be unreasonable or prohibitive having regard to the extent and complexity of the applicant’s spinal symptoms and ME/CFS with F – in this regard, the respondent’s submissions are silent as to the whether the relevant costs are unreasonable;
(d) the overwhelming evidence from the applicant and Dr Bird is that when the applicant was afforded physiotherapy treatment and exercise physiology together in the past, it was highly effective in improving his strength, flexibility, function, weight maintenance, glucose resistance, pain levels, spasms and sleep – in my opinion, further treatment with physiotherapy and exercise physiology therefore “should not be forborne by” the applicant, and
(e) having regard to Dr Bird’s opinions (and his expertise in managing and researching ME/CFS with F), as well as the brief opinions from Drs Cleaver, Lee, and Kim, it seems to me to be clear that the treatment needs as recommended by Dr Bird are accepted by medical experts as being appropriate and likely to be effective.
It is now necessary to consider whether there is a material contribution between the applicant’s accepted work-related injuries and his reasonable need for physiotherapy treatment, gym membership, personal training, and exercise physiology. In this regard, the need for the treatment must be ‘as a result’ of the accepted injuries.
In Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49 (Murphy), Roche DP stated:
“58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]. That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
The respondent made no submissions regarding the applicant’s need for the treatment recommended by Dr Bird (if found to be reasonably necessary by me) not being ‘as a result of’ his accepted injuries, being the aggravation of his spinal injuries and his ME/CFS with F (as found by Member Isaksen on 15 June 2022). The respondent does not possess any medical evidence suggesting as such. In fact, the respondent submitted (see paragraph 86(c) above) that if I did not accept Silcock’s opinions, I would be entitled to make certain awards in favour of the applicant in relation to the treatment needs recommended by Dr Bird.
I am comfortably satisfied, having analysed Dr Bird’s reports in some detail, that the applicant’s treatment needs as recommended by him are materially contributed to and result from the injuries found by Member Isaksen, together with the further aggravation of those injuries in the applicant’s 15 October 2022 motor vehicle accident. Dr Bird (see paragraph 66 above) refers to the motor vehicle accident as creating “significant aggravations” and causing “further decline”. The respondent concedes (see paragraph 15 above) that the injuries sustained in the motor vehicle accident were consequential injuries for which it was liable to compensate the applicant, except in relation to the styloid and sacrum injuries allegedly sustained in the accident.
It is further relevant to note that Silcock does not suggest that the applicant’s treatment needs are not ‘as a result of’ the accepted injuries. His position is that he disagrees with Dr Bird as to the nature of those treatment needs, believing self-management to be appropriate.
It remains for me to consider the terms of the orders to be made by the Commission, to support my finding that the treatment recommended by Dr Bird (see paragraph 125 above) is reasonably necessary medical treatment for the applicant as a result of his accepted injuries. Specifically, do I order that the treatment be afforded to the applicant for life (as submitted by him), do I order that the treatment be afforded to him for a specific period into the future, or do I make an order without any time frame attached to it.
I do not intend to make an order without any time frame attached to it. Such an order does not provide any certainty to the parties and theoretically could result in the applicant’s treatment needs being reviewed within a very short period of time. Further, I have evidence before me of specific requests for treatment (which I have now found to be reasonably necessary as a result of the applicant’s accepted injuries), that include time frames for the treatment. Those requests were denied by the respondent, and it is my opinion that orders should now be made regarding the requests. The requests were referred to and referenced in the respondent’s submissions – see paragraph 86(c) above. There have been no other specific requests for treatment made to the respondent, it only otherwise being provided with the opinions outlined in Dr Bird’s 13 August 2023 report.
I also do not intend to make an order that the treatment recommended by Dr Bird be afforded to the applicant for life. I agree with the respondent (see paragraph 102 above) that such an order would be incongruous with s 59A of the 1987 Act, which relevantly provides as follows:
“(1) Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided after the expiry of the compensation period in respect of the injured worker.
(2) The compensation period in respect of an injured worker is--
(a) if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be 10% or less, or the degree of permanent impairment has not been assessed as provided by that section, the period of 2 years commencing on--
(i) the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
(ii) the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker), or
(b) if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be more than 10% but not more than 20%, the period of 5 years commencing on--
(i) the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
(ii) the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker).
(3) If weekly payments of compensation become payable to a worker after compensation under this Division ceases to be payable to the worker, compensation under this Division is once again payable to the worker but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.
(4) For the avoidance of doubt, weekly payments of compensation are payable to a worker for the purposes of this section only while the worker satisfies the requirement of incapacity for work and all other requirements of Division 2 that the worker must satisfy in order to be entitled to weekly payments of compensation.
(5) This section does not apply to a worker with high needs (as defined in Division 2).”
The applicant submits that s 59A of the 1987 Act does not apply to him (see paragraph 94(h) above), and that is correct at the current time. However, unless he is eventually assessed as “a worker with high needs”, the section will eventually apply to him (and lead to his entitlement to claim treatment expenses from the respondent being extinguished) after a period has elapsed following the cessation of his weekly benefits compensation.
In those circumstances, it is my opinion that to make an order that the treatment recommended by Dr Bird be afforded to the applicant for life would be speculative without an assessment as to whether he is “a worker with high needs”.
Further, I have had regard to s 60(2A) of the 1987 Act, which provides as follows:
“(2A) The worker's employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if--
(a) the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the Workers Compensation Guidelines from the requirement for prior insurer approval), or
(b) the treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or
(c) the treatment or service is not given or provided in accordance with any conditions imposed by the Workers Compensation Guidelines on the giving or providing of the treatment or service, or
(d) the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or disqualified from practice.”
In my view it is clearly the intention of the 1987 Act to allow a regular review by an insurer of an injured worker’s treatment requests. An order that the treatment recommended for the applicant by Dr Bird be afforded to him for life would also be incongruous with s 60(2A) of the 1987 Act.
The applicant relies upon s 60(5) of the 1987 Act (see paragraph 94(i) above) in support of his request that the treatment recommended for him by Dr Bird be afforded to him for life. However, in my view, this sub-section solely provides me with the necessary jurisdiction to order the respondent to pay for proposed treatment in a general fashion. It does not allow me to act contrary to ss 59A or 60(2A) of the 1987 Act. Section 60(5) provides as follows:
“(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”
In my opinion, it is also unclear from Dr Bird’s reports as to the precise period into the future during which he would recommend the specific treatment modalities of physiotherapy treatment, gym membership, personal training, and exercise physiology.
I accept the applicant’s submission (at paragraph 94(j) above) that the doctor considers the applicant’s spinal injuries and his ME/CFS with F to be lifelong conditions that will likely require lifelong treatment. As early as in the doctor’s 13 October 2020 report (see paragraph 45 above), the doctor advises that the applicant’s “injury has significantly triggered symptoms and this will take time to settle”. Then, in his 31 October 2021 report (see paragraph 50 above), the doctor refers to the applicant’s work-related aggravations as being now “chronic”. Finally, in his 13 August 2023 report, the doctor is at pains to stress the need for the applicant’s treatment progress to be conducted slowly. He explains (see paragraph 59 above) that “ME/CFS with FM is not a condition that goes away and requires ongoing, indefinite medical support”; and also (see paragraph 66 above) that once ME/CFS with F has been aggravated “such deterioration will often become permanent, with no improvement possible”, and further (see paragraph 71 above) that it will take years for the goals of the applicant’s exercise program to be achieved.
However, I have not been able to find (and I have received no submissions pointing me to) a reference within Dr Bird’s reports stating that the applicant will specifically require lifelong physiotherapy treatment, gym membership, personal training, and exercise physiology. He may require lifelong treatment but I cannot infer from Dr Bird’s reports that the treatment will involve those specific treatment modalities.
Dr Bird does however (see paragraph 74 above) outline how often the applicant’s treatment modalities require review. His opinion in this regard is broadly consistent with the respondent’s submission at paragraph 86(c) above. It is also consistent with the specific requests for treatment which were made to the respondent’s insurer and which were then rejected by the insurer pursuant to its 4 May 2023 notice pursuant to s 78 of the 1998 Act.
Having accepted Dr Bird’s opinions regarding the management of the applicant’s accepted injuries, I have little doubt that if specifically asked, he would recommend that the applicant be provided with physiotherapy treatment, gym membership, personal training, and exercise physiology for longer periods than the periods referred to in those specific requests. However, having determined that I will be ordering that treatment be afforded to the applicant for a specific period into the future (rather than an uncertain general order in this regard), I find that I currently possess no accurate evidence as to a specific time frame for those treatment modalities other than the requests referred to in the paragraph above, being:
(a) eight weeks of physiotherapy treatment three times per week – see Plessis’ request referenced at paragraph 36(k) above;
(b) eight weeks of exercise physiology once per week – see Boyd’s request referenced at paragraph 37(d) above;
(c) 13 weeks of personal training twice per week – see Mickan’s quotation referenced at paragraph 38(b) above,; and
(d) gym membership for three months - see request referenced at paragraph 39 above.
I intend to frame my order accordingly. In the circumstances, I am not willing to infer from Dr Bird’s report a different specific time frame for me to order the relevant treatment modalities, especially considering his view as to how often the modalities require review.
If, as expected, the applicant then requires the treatment modalities to be further approved following the expiry of the time frames in my order, he will need to make an appropriate claim upon the respondent in this regard. I currently make no findings regarding the applicant’s entitlements following the periods referred to in my order.
I appreciate that the applicant may find this process frustrating, and I acknowledge his submission at paragraph 94 above, regarding the desirability of there being more certainty regarding liability for his treatment needs in the future. However, the regular review by an insurer of an injured worker’s treatment requests is provided for pursuant to s 60(2A) of the 1987 Act. In relation to future treatment requests, I would encourage both the applicant and the respondent to have regard to my findings with respect to my acceptance of Dr Bird’s opinions, but my current inability to infer from those opinions any specific future time frame for the provision of physiotherapy treatment, gym membership, personal training, and exercise physiology.
Finally, I need to deal with the applicant’s remaining submissions, being:
(a) the submission referred to at paragraph 90 above as to the defective nature of the respondent’s 4 May 2023 notice pursuant to s 78 of the 1998 Act – I do not intend to determine whether the notice was defective as, considering the findings I have made regarding the reasonably necessary treatment required by the applicant for his accepted injuries, the notice has been effectively overturned whether it was defective or not, and
(b) the submissions referred to at paragraphs 97, 98, and 106 above regarding alleged breaches by the respondent of its model litigant obligations – I do not intend to make any orders in this regard – while I acknowledge the history provided by the applicant as to his dealings with the respondent’s insurer, I do not consider it to be my role to investigate those dealings further, or indeed prompt further investigations of those dealings – in my opinion, there are authorities that the applicant can directly complain to in relation to his dealings with the respondent, and he does not need me to refer the respondent’s insurer to those authorities – further, my personal knowledge of the dealings between the applicant and the respondent’s insurer is limited to my involvement in these proceedings, during which the respondent has acted courteously and in accordance with the guiding principle of the Commission (pursuant to s 42 of the Personal Injury Commission Act 2000) in assisting me to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings – the respondent did not delay the resolution of the proceedings, making its submissions in a timely manner.
SUMMARY
I find that physiotherapy treatment is reasonably necessary medical treatment for the applicant as a result of his accepted injuries on 1 July 2020 as well as his accepted injuries on 15 October 2022. I find that he should be afforded eight weeks of physiotherapy treatment three times per week in accordance with Plessis’ request dated 6 April 2023. I only have evidence before me to allow me to order this period of physiotherapy treatment. If the applicant requires physiotherapy treatment for a longer period, he will need to make an appropriate claim upon the respondent in this regard. I currently make no determination regarding the applicant’s entitlements following the period referred to in Plessis’ request.
I find that gym membership is reasonably necessary medical treatment for the applicant as a result of his accepted injuries on 1 July 2020 as well as his accepted injuries on 15 October 2022. I find that he should be afforded gym membership for three months in accordance with the tax invoice from Byron Gym dated 11 April 2023. I only have evidence before me to allow me to order this period of gym membership. If the applicant requires gym membership for a longer period, he will need to make an appropriate claim upon the respondent in this regard. I currently make no determination regarding the applicant’s entitlements following the period referred to in the tax invoice from Byron Gym.
I find that personal training is reasonably necessary medical treatment for the applicant as a result of his accepted injuries on 1 July 2020 as well as his accepted injuries on 15 October 2022. I find that he should be afforded 13 weeks of personal training twice per week in accordance with Mickan’s request dated 30 August 2023. I only have evidence before me to allow me to order this period of personal training. If the applicant requires personal training for a longer period, he will need to make an appropriate claim upon the respondent in this regard. I currently make no determination regarding the applicant’s entitlements following the period referred to in Mickan’s request.
I find that exercise physiology is reasonably necessary medical treatment for the applicant as a result of his accepted injuries on 1 July 2020 as well as his accepted injuries on 15 October 2022. I find that he should be afforded eight weeks of exercise physiology once per week in accordance with Boyd’s request dated 9 March 2023. I only have evidence before me to allow me to order this period of exercise physiology. If the applicant requires exercise physiology for a longer period, he will need to make an appropriate claim upon the respondent in this regard. I currently make no determination regarding the applicant’s entitlements following the period referred to in Boyd’s request.
I order that the respondent is to pay for the costs of and incidental to the applicant undergoing the following treatment, pursuant to s 60 of the 1987 Act:
(a) eight weeks of physiotherapy treatment three times per week;
(b) gym membership for three months;
(c) 13 weeks of personal training twice per week, and
(d) eight weeks of exercise physiology once per week.
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