Hamblin and Comcare (Compensation)
[2021] AATA 371
•16 February 2021
Hamblin and Comcare (Compensation) [2021] AATA 371 (16 February 2021)
Division:GENERAL DIVISION
File Number: 2018/6728
Re:Janet Hamblin
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mr A. Maryniak QC, Member
Date:16 February 2021
Date of written reasons: 4 March 2021
Place:Melbourne
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
...[sgd]....................................................................
Mr A. Maryniak QC, Member
Catchwords
COMPENSATION – medical treatment – ongoing massage treatment –– whether treatment is reasonable – decision affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988
Cases
Alamos and Comcare, Re [2014] AATA 629
Agius and Comcare, Re [2018] AATA 4075
Bayani and Australian Postal Corporation, Re [2015] AATA 342
Drummey and Comcare, Re [2016] AATA 738
Durham and Comcare, Re [2014] AATA 753
Evans and Comcare, Re [2016] AATA 827
Hamblin and Comcare, Re [2018] AATA 4451
O' Day and Comcare, Re [2017] AATA 1328
Pethes and Comcare, Re [2018] AATA 483
Rope and Comcare, Re [2018] AATA 42Topping and Comcare, Re [2015] AATA 525
REASONS FOR DECISION
Mr A. Maryniak QC, Member
4 March 2021
At the conclusion of the hearing of this matter, the terms of the decision and the reasons thereof were stated orally.
The oral reasons for the decision have been transcribed by Epiq Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
An extract of the said transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.
I certify that the following 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision of Mr A. Maryniak QC, Member
...[sgd]....................................................................
Associate
Dated: 4 March 2021
Dates of hearing: 15–16 February 2021 Applicant: By telephone Counsel for the Respondent: Mr Ray Ternes Solicitors for the Respondent: MORAY & AGNEW LAWYERS ANNEXURE A
EXTRACT OF TRANSCRIPT OF PROCEEDINGS
MEMBER: This is a review of a reviewable decision dated 20 September 2018 which affirmed a determination dated 2 August 2018 which held that the Respondent was not liable to pay for further massage treatment for the Applicant under section 16 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).
The only issue or determination by this Tribunal following concessions by the Respondent in light of the evidence before the Tribunal is whether such massage treatment is “reasonable” according to law, namely pursuant to section 16 of the SRC Act.
The background facts as summarised in the Respondent’s Further Statement of Facts, Issues and Contentions and Outline of Submissions at paragraphs 5 to 17 are essentially not in issue and are established on the evidence before the Tribunal.[1]
[1] Respondent’s Statement of Facts, Issues and Contentions and Outline of Submissions, dated 3 October 2020 at paras [5] to [17] (citations omitted):
Ms Hamblin is 65 years of age, having been born on 17 January 1955.
She has a long history of low back pain and problems, commencing in about 1973 at the age of 17 or 18. She underwent low back surgeries in 1979 and 1994 (both unrelated to her Commonwealth employment).
She commenced employment with the Commonwealth in January 1990.
She injured herself at work on 7 March 1995, when she stepped out of a lift and stumbled, but did not fall. Not long thereafter in 1995 she had a double-level spinal fusion (L4/5 and L5/S1).
She returned to work on a part-time basis on or about 23 October 1995.
She underwent further surgery to remove the metalware in her back in 1998.
Ms Hamblin was retired from Commonwealth employment on medical grounds on 22 December 2004.
Ms Hamblin commenced regular massages with Ms Trista Hamblin in October 2011.
Review of Comcare’s records indicates that Ms Hamblin usually obtained the massage treatment on a fortnightly basis between October 2011 and August 2018 (T43).
On 2 August 2018 (T38), Comcare decided that it was not liable to pay compensation under section 16 of the SRC Act for massage treatment. Ms Hamblin challenged the determination (T39). The decision was affirmed upon review (T41). The review officer noted that Ms Hamblin had received compensation for 153 sessions of massage therapy and 141 physiotherapy sessions.
Ms Hamblin lodged an application for review with the Tribunal, in which she said that she’d been having the treatment for several years, and that the legislation hadn’t changed (T1).
Comcare’s item list indicates that at the time of cessation of payment for massage, Ms Hamblin was receiving the treatment fortnightly, at a cost of $83.21 per session (T43, p107).
A synopsis report from Comcare in November 2018 showed that over the course of Ms Hamblin’s claim, it had paid for 153 massages, at a cost of $11,451 (T44, p149).
The evidence before the Tribunal comprises all the documentary evidence admitted as exhibits during the hearing, together with the oral evidence of: the Applicant; the Applicant’s husband; Dr Dunbar, the Applicant’s GP; Dr Tan, independent neurosurgeon; Ms Punton, the Applicant’s former masseuse; and Dr Grave, a musculoskeletal physician whom the Applicant saw and who provided a report and associated letter. All witnesses were cross-examined.
At the outset the Tribunal recognises that the Applicant has ongoing conditions that make her life quite challenging. It accepts her as a witness of truth and accepts that she feels both entitled to ongoing payments for massage and that such massages do benefit her. That, however, is not the test of reasonableness to be applied by this Tribunal.
The Tribunal also notes that, by her own admission, the Applicant has a bad memory. However, this did not appear to have any real detrimental impact upon her evidence.
The Applicant’s evidence establishes that her lower back pain was, “always getting worse” since at least 2005, that massage treatment has not interrupted the gradual decline in her lower back condition, that massage treatment has not provided any permanent relief, yet does provide temporary relief to the lower back pain and related mobility and to some depression-related issues. In this latter sense the Applicant says the massages are of benefit to her.
The Tribunal accepts this evidence of the Applicant that massage treatment does provide the Applicant with temporary relief which can last up to between four days to a week. The Applicant’s husband also gave evidence which was supportive of the Applicant’s evidence.
Dr Dunbar also gave evidence on behalf of the Applicant. Dr Dunbar is, with respect, an ‘old school’ GP, she cares passionately for her patients, a quality that is both commendable and admirable however, in balancing the evidence before the Tribunal, the Tribunal notes that she admitted in cross-examination that “one of my jobs is to advocate for my patients” and that she was trying to maintain a therapy which was beneficial to her patient. Her evidence was also restricted by the fact that she had no notes with her with respect to her treatment of the Applicant. Her evidence is weighted accordingly.
At best, her evidence establishes that massage provides temporary relief to pain and mobility, but no effective measurement techniques were ever engaged by her in assessing the Applicant in this regard. She had never applied the Clinical Framework, discussed below, in respect of the Applicant.
Dr Dunbar stated that the Applicant is now “in the right space” to lose weight. The Applicant has reduced her weight recently from 135 kilograms to 119 kilograms but needs to lose more weight to be in an acceptable range and to undergo the proposed knee surgery.
As an aside, the Tribunal notes the great work the Applicant is doing in respect of her weight loss and in taking up more exercise at a gradual rate, for example, hydrotherapy.
Ms Punton’s evidence again establishes that her massages provided to the Applicant gave the Applicant temporary relief from some pain and gave her greater mobility. However, this was measured by Ms Punton in less than objective methods and no strict goals were ever set throughout the seven years of massage which the Applicant received from Ms Punton. Ms Punton stated that the Applicant’s condition will continue to get worse as time passes. Further, during the seven year period she massaged the Applicant, Ms Punton was not aware of the Clinical Framework for the Delivery of Health Services and admitted that she had not applied that framework in respect of treating the Applicant.
Dr Tan, an independent neurosurgeon called on behalf of the Respondent also gave evidence. A report and two supplementary reports from her are before the Tribunal. Such reports acknowledge her “overriding duty to provide impartial assistance to the tribunal”. In that sense her evidence is of an independent nature and clearly establishes that massage may temporarily alleviate psychological and physical symptoms related to the L5-S1 area of the Applicant but that such benefits were short term. Dr Tan was of the opinion that further massage therapy was not reasonable apropos the clinical framework discussed below.
Dr Tan stated that in her expert opinion there is no medical evidence to support the proposition that massage is of any lasting or permanent benefit in respect of the Applicant’s lower back pain or related mobility. Further, other active interventions such as stretching and exercise and weight loss will be of lasting benefit in improving the Applicant’s condition. Dr Tan also indicated that there are numerous methods to measure improvements in pain reduction and mobility and that she had seen no evidence that any such measure had been used in relation to the Applicant and the objective effect of massages on the Applicant.
No lasting benefit of the massage treatment has been established before the Tribunal on the evidence.
Dr Grave, a musculoskeletal physician, had seen the Applicant in December 2019 and provided both a report but also a letter focussed on the Applicant’s desire for continuing massage treatment to be paid for by the Respondent, dated 30 December 2019.
Dr Grave volunteered that he was acting as an advocate of the Applicant in respect of that letter and his evidence is weighted accordingly. He said that massage treatment was reasonable for the Applicant and he would recommend it. However, he accepted that this opinion was solely based on the Applicant’s self-reporting and in that sense his opinion is subjective, and importantly he said that massage therapy is only adjunct to any active therapy such as exercise and weight loss which are of vital importance to the Applicant improving her conditions.
The Tribunal was also referred to the report of Associate Professor Brophy dated 18 May 2016. The Tribunal finds it equivocal, at best, as to whether such report contemplates massage treatment. In such circumstances this report does not relevantly add to the body of evidence before the Tribunal.
On balance, the preponderance of evidence is consistent with the finding that the massage treatment is only of intermittent, temporary benefit to the Applicant and the Tribunal so finds. Where any inconsistencies exist in the evidence the Tribunal has given greater weight to the medical evidence of Dr Tan and Dr Grave in balancing the evidence before it.
The Tribunal, in light of the evidence, finds that from August 2018 massage treatment would not be reasonable as that term is applied by section 16 of the SRC Act.
Reference above has been made to the Clinical Framework which is the Clinical Framework for the Delivery of Health Services and was discussed in the context of reasonableness by Deputy President Humphreys in Rope and Comcare [2018] AATA 42. In that decision Deputy President Humphreys stated at [45]:
Generally speaking, treatment is more likely to be found reasonable where:
(a) its benefits are substantial and its cost is low;
(b) it is effective, that is it achieves measurable benefits;
(c) it is active and promotes self-management of the compensable condition;
(d) it is consistent with the principles in the Framework; and
(e) it is of limited duration.
The Deputy President went on to say that the treatment is less likely to be found reasonable where (a) its benefits are insubstantial and its cost is high; (b) it is passive and promotes dependence on itself; and (c) it is ongoing and indeterminate.
The Tribunal also notes the observations of Member Burke in Hamblin and Comcare [2018] AATA 4451 which was an earlier decision also involving the Applicant and simply as obiter, notes that at paragraphs [55] to [56] of that decision, that Tribunal found that:
[The Applicant] and her treating practitioners had not embraced the best practices model of achieving independence from treatment as outlined in the Clinical Framework.
The key measure of treating effectiveness is the ability of the injured person to manage their condition as independently as possible and participate in activities at home, in the community and at work. Independence does not mean being symptom free but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependency on treatment which reinforces illness behaviour and can lead to persistent pain or long-term disability.
The impact upon [the Applicant] of not being managed appropriately at the outset of her injury has resulted in her decreased functionality, persistent pain and long-term dependency on treatment.
That Tribunal found that the Applicant would be greatly assisted by being encouraged to undertake light cleaning duties around her home to encourage greater independence from treatment and external provision of services.
So, as this Tribunal has indicated, that is simply referred to by way of obiter.
The Respondent has submitted, in light of the evidence before the Tribunal, and the Tribunal finds, that the massage treatment is passive, and it has a tendency to promote dependence. It was contemplated that it would be of indefinite duration. It is not consistent with the Clinical Framework. The repeated nature of the massages if they had been permitted, in aggregate would be quite high in cost and that in light of the evidence, the massage treatment fails the cost benefit analysis.
Finally, as I indicated to the parties during the course of the hearing and essentially for completeness, this Tribunal notes the decision of Agius and Comcare [2018] AATA 4075 and in particular paragraph [51] and footnote 2, referring to the range of decisions in this Tribunal where the Clinical Framework has been relevantly applied.[2]
[2] Re Alamos and Comcare [2014] AATA 629[cessation of long term physiotherapy treatment] at [39]; Re Durham and Comcare [2014] AATA 753[cessation of long term physiotherapy treatment]; Re Bayani and Australian Postal Corporation [2015] AATA 342[cessation of long term physiotherapy treatment]; Re Topping and Comcare [2015] AATA 525[cessation of long term massage and osteopathy treatment] at [51]; Re Evans and Comcare [2016] AATA 827[cessation of long term physiotherapy treatment]; Re Drummey and Comcare [2016] AATA 738[cessation of long term massage treatment]; Re O' Day and Comcare [2017] AATA 1328[cessation of long term osteopathy treatment] and RePethes and Comcare [2018] AATA 483[cessation of long term massage treatment]. Cf. Re Rope and Comcare [2018] AATA 42.
In all the circumstances and on balance in light of the evidence before the Tribunal, the correct and preferable decision is that the reviewable decision be affirmed.
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