Hawker and Comcare (Compensation)

[2016] AATA 1008

Hawker and Comcare (Compensation) [2016] AATA 1008 (29 November 2016)

Division	GENERAL DIVISION
File Number(s)	2016/2342
Re	John Hawker
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Prof. M McGrowdie, Senior Member
Date	29 November 2016
Date of written reasons	9 December 2016
Place	Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review being the decision of Comcare dated 22 March 2016, and in substitution the Tribunal decides that Comcare is liable to pay for three sessions of massage treatment per week to 31 December 2016 and two sessions per week thereafter.

..............................[sgd].........................................

Prof. M McGrowdie, Senior Member

CATCHWORDS

COMPENSATION – medical treatment – ongoing massage therapy – whether treatment was reasonable for the employee to obtain – decision set aside and substituted

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 s 16

CASES

Re Alamos and Comcare [2014] AATA 629

WRITTEN REASONS FOR ORAL DECISION

Prof. M McGrowdie, Senior Member

9 December 2016

1. At the conclusion of the hearing of the above matter heard on 29 November 2016, the terms of the decision intended to be made and the reasons for that decision were given orally. The Tribunal served both parties with a copy of the order outlining the decision that was made shortly after. On 29 November 2016 the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act1975, requested the Tribunal provide written reasons for its decision.

2. The oral reasons for decision have been transcribed by DTI Global, the Tribunal’s audio and transcription provider. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. The transcript of the oral reasons is annexed below and furnished to the parties as the Tribunal’s written reasons.

4.       I certify that the preceding 3 (three) paragraphs are a true copy of the reasons for the decision herein of Prof. M McGrowdie, Senior Member

............................[sgd]............................................

Associate

Dated 9 December 2016

Date(s) of hearing	29 November 2016
Applicant	In person
Counsel for the Respondent	Mr B Kelly
Solicitors for the Respondent	Lehmann Snell Lawyers

EXTRACT OF TRANSCRIPT OF PROCEEDINGS  [12:04PM]

I will make a determination and provide some brief reasons in the matter of John Hawker and Comcare.  The decision under review is a determination by Comcare dated 19 February 2016.  That decision was reviewed by a review officer and affirmed on 22 March 2016.

The matter now becomes before the Tribunal on the application of the applicant who seeks to establish an entitlement to compensation for massage therapy under s 16 of the Safety Rehabilitation and Compensation Act 1988.

Mr Hawker was employed by the Commonwealth Bank of Australia and suffered injuries to his back in 1974, and again in 1975 and on 22 July 1993.  In 1974 he was moving sacks of coins.  In 1975 he was moving boxes of files, and on 22 July 1993 he was moving tables.  Liability at all relevant times was accepted by Comcare for a back condition, the precise details of which are not particularly relevant to the matter now being considered.  However, in general terms, he could be described as having suffered a back strain with superadded lumbosacral disc pathology.

The applicant has been thoroughly investigated from a medical perspective.  He has considered surgical intervention which ultimately was not recommended.  He has also undertaken a trial to determine whether or not a nerve stimulator would be effective, but it seemed as though that was not going to be an effective form of treatment and was not pursued.  He has had a plaster jacket trial.  At times he has resorted to substantial use of heavy analgesia with the result that he experienced stomach problems and reflux.  As a result he avoids taking medication in the main and may occasionally, if his back flares up, take anti-inflammatory medication for a short period of time.

The applicant also has had extensive physiotherapy treatment, but this has ceased and it has been some time now since he has had any physiotherapy treatment.  His current treatment regime is to have massage generally four times a week, and also has a self-management program which involves the use of a heat pad, liniments, exercise, diet and swimming.  Generally this keeps him fit and keeps his weight down.

He has difficulty with sleep and finds that he needs to sleep on his stomach.  The applicant generally takes a sleeping aid on going to bed.  He has described how sleeping on his stomach causes him some other discomfiture on waking, such as aching and soreness in the neck and the like.  Generally he describes how he is relieved, in terms of his symptoms, by attending massage sessions.  Comcare have been paying for the massage treatment up until early July 2016 and the amount in total paid out by Comcare, in terms of massage treatment, is in the region of $58,000, a considerable expense.

The applicant gave brief evidence and has explained how he attends two massage providers.  One is the Kasalong Nuad Thai and Day Spa, and the other is Thai Professional Massage, but it is not quite clear why the applicant does divide his time between the two entities, but in any event, combined they represent about four visits per week.  The applicant lives at Wetherill Park and is 68 years of age.  He is currently employed in the financial industry and works approximately 30 hours per week, a lot of that time being spent working from home.  The work involves work in the area of superannuation and also financial advice.

The applicant explained how he suffers on a reasonably regular basis throughout the course of a year with a number of flare-ups and described how he finds that the massage helps him gain a degree of equilibrium following these flare-ups.  It appears that the massage therapy does provide him with some assistance in being able to perform his job and maintain his mobility and obtain some relief from symptoms.  It is certainly not put that the massage treatment provides any curative properties, but could more be described as helping to maintain the equilibrium and the alleviation of symptoms.

There is no real issue that the treatment is of a kind which may be provided within the terms of the legislative framework.  Given that there is no real issue there I will not detail the same.  What the matter really turns upon is the reasonableness of the treatment.  In terms of the reasonableness of the treatment the respondent makes a submission that an analysis of the costs benefit is particularly relevant.  That goes to the issue of whether the treatment is reasonable.

The cost to Comcare of the treatment is in excess of $320 per week.  Sometimes the applicant has a greater level of treatment for which he pays for himself.  For instance, instead of having a one hour massage he might have a 90 minute massage.  Also, where the fee charged is slightly in excess of the payable rate by Comcare, the applicant meets this slight difference himself.  There is of course no reason why the applicant cannot do as much massage treatment as he likes, paid for by himself.  The question though is the reasonableness of the applicant having massage treatment, some four sessions a week paid by Comcare.

I have been referred to a number of decisions by counsel for the respondent relevant to that issue.  One of those is a determination of Deputy President Constance in Re Alamos and Comcare [2014] AATA 629 (14 August 2014) where the provision of physiotherapy treatment was being considered. The Deputy President notes in his decision at paragraph 38 that the applicant in that case had undertaken more than 300 sessions of physiotherapy, which her evidence suggested only resulted in a short-term alleviation of symptoms.

The Deputy President went on to state that:

In such circumstances, as noted by the tribunal in Chowdhary and Popovic, it may not be reasonable to obtain ongoing treatment.

The Deputy President went on to say that:

Medical evidence strongly supports a conclusion that it is not reasonable for (the applicant) to obtain ongoing physiotherapy at present…ongoing physiotherapy is not medically indicated and will not provide long-term improvement…

The applicant in the present matter gets some support for ongoing massage from Dr Chandra, a general practitioner, with whose guidance the applicant manages his condition.  Dr Chandra has produced a number of reports, the most relevant to the current question being a report dated September 2016 (exhibit A1).

In that report Dr Chandra indicates that the applicant needs ongoing massage treatment to prevent his condition from deteriorating, assisting the applicant with treatment of any aggravation, helping the applicant to maintain a better level of mobility and reducing pain.  Dr Chandra goes on to indicate that massage helps the applicant to continue working in suitable employment, and suggests that increasing pain and stiffness would significantly affect the applicant’s work capacity.

Relevant to my consideration is a document attached to the respondent’s statement of facts, issues and contentions.  The document is the clinical framework for the delivery of health services, which Deputy President Constance in Alamos explains is a joint presentation of the Victorian Transport Accident Commission, WorkSafe Victoria and the State Government of Victoria.  It is a document supported by Comcare and other Federal and State organisations, and although not an official Commonwealth Government policy, appropriately is something relevant for consideration.

As indicated by Deputy President Constance in paragraph 32 of his decision, the Foreword to the clinical framework states that:

The clinical framework outlines a set of guiding principles for the delivery of health services.  These principles are intended to support health care professionals in their treatment of an injury through:

·Measurement and demonstration of the effectiveness of treatment

·Adoption of a biopsychosocial approach

·Empowering the injured person to manage their injury

·Implementing goals focused on optimising function, participating and return to work

·Base treatment on best available research evidence.

Counsel for the respondent has indicated that there is really little research available in terms of the benefits or otherwise of remedial massage.  The evidence as to the effectiveness of the treatment can really only be gleaned from what has been stated by the applicant and supported by his general practitioner.  The applicant clearly benefits from the treatment and it does appear to have a positive impact on his ability to maintain his current work capacity.  One is not sure, however, whether the effect of a cessation or a reduction in massage therapy would have a particularly detrimental effect on the applicant for the reason that he has maintained massage treatment at a particular level and has really not trialled not having the treatment or treatment at a lesser level.

In the determination by the Comcare delegate set out in the letter of determination of 19 February 2016, liability was accepted to assist the applicant in gradually weaning from massage as follows:

·Once a week up to 30 March 2016, maximum one hour per session

·Once a fortnight from 1 April 2016 to 30 May 2016, one hour per session

·Once a month from 1 June 2016 to 31 July 2016, one hour per session

The delegate then determined that from 1 August 2016 it was not considered that massage could be considered to be reasonable in the applicant’s circumstances.

Other than the report of Dr Chandra that I have referred to there is not really any other medical evidence that specifically addresses the question of massage therapy or its continuation, so for this reason I am in the position where the opinion of Dr Chandra is particularly relevant.  What Dr Chandra has not, however, referred to in his report is the amount of frequency of such treatment.  Dr Chandra indicates that Mr Hawker needs ongoing massage treatment, and then gives his reasons.  I can only take from this that he is referring to regular massage treatment, not necessarily to the extent to which the applicant is presently being treated.

The massage treatment, as I have indicated, is certainly not curative, but does provide the applicant with symptomatic relief, assists him in keeping working in his job and assists him in dealing with any aggravations and exacerbations or flare-ups that might occur from time to time.  The applicant, to his credit, appears to not take the attitude that he need do nothing for his welfare, and as I have indicated, has a fairly developed treatment regime based on self-management so that apart from some occasional use of anti-inflammatories and the massage treatment, his treatment is largely confined to the massage and on average six weekly visits to his general practitioner.

The applicant gave evidence that he has purchased a home unit on the Gold Coast, having researched it beforehand and found that the complex in which the unit is situated has extensive facilities which would assist him in the self-management of his condition in that there is a heated pool and sauna and gymnasium and the like.  It is his plan to relocate his residence from Sydney, which he is finding a little difficult to manage, to this unit, returning to Sydney for periods where he would continue his work, the balance of his work being something that he can undertake from home.

I believe that the question is not one solely related to whether the applicant should have the cost of massage treatment met, but if it was found to be a desirable thing the extent of it, because that is also a factor very relevant to the cost benefit analysis.  I am satisfied that the massage treatment is of significant benefit to the applicant at the present time, but I am not satisfied that the applicant has demonstrated a need for such treatment to be provided at its current level of frequency, namely four sessions a week.  Although Comcare had programmed a stepped reduction, as I have indicated, the applicant has maintained the level of treatment he has normally received at his own expense.

Employing the notion of cost benefit, I would consider that it is appropriate that the applicant be able to continue with the massage treatment, being treatment as a consequence of his injury at a level of three sessions per week to 31 December 2016 to be reduced to two sessions per week thereafter.  It is of course always open to the applicant to seek more treatment, particularly during a period of any flare-up, and it is also open to Comcare of course to review matters at any time and consider the ongoing reasonableness for such a regime.

The reviewable decision of the delegated review officer dated 22 March 2016 is set aside and in substitution thereof there is therefore a liability for massage treatment of three times per week up to 31 December 2016, and twice per week thereafter until further determination.

END OF ORAL DECISION  [12.51 PM]