Heales and Comcare (Compensation)
[2020] AATA 810
•14 April 2020
Heales and Comcare (Compensation) [2020] AATA 810 (14 April 2020)
Division:GENERAL DIVISION
File Number: 2016/5161
Re:Yvonne Heales
APPLICANT
ComcareAnd
RESPONDENT
DECISION
Tribunal:Senior Member D O'Donovan
Date:14 April 2020
Place:Canberra
The decision under review is affirmed.
........................................................................
Senior Member D O'Donovan
WORKERS COMPENSATION – previously accepted right knee injury –Compensation in respect of medical treatment expenses – massage therapy – whether massage therapy obtained in relation to an ‘injury’ – ability of tribunal to form its own view on medical issues – massage therapy not reasonably obtained in relation to an ‘injury’ – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(3), 14, 16, 124
Compensation (Commonwealth Government Employees) Act 1971
Auburn Municipal Council v Szabo [1971] 67 LGRA 427
Comcare v Lofts [2013] FCA 1197
Comcare v Wiggins [2019] FCA 1465
Comcare v Wuth [2018] FCR 89
Howes v Comcare [2016] FCA 1521
Kennon v Spry [2008] HCA 56
Portors v Comcare [2018] FCA 914
Telstra v Hannaford [2006] 151 FCR 253
Rodriguez v Telstra Corporation Ltd [2002] 66 ALD 579
Sellick v Australian Postal Corp [2009] 113 ALD 58American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th Edition
REASONS FOR DECISION
Senior Member D O'Donovan
14 April 2020
INTRODUCTION
The applicant is a retired school principal with long standing knee problems. Her osteo-arthritis became symptomatic in her right knee on 13 October 1988 while she was walking down a ramp at school. Comcare accepted liability for an injury consisting of pinching of the degenerate meniscus and accepted ongoing liability on the basis that this injury prompted her underlying osteo-arthritis to become symptomatic.
Over the years the applicant’s condition deteriorated. Her problems spread to other parts of her body. Comcare accepted liability for a range of conditions which her doctors connected to the original right knee injury including degeneration in her left knee. In November 1998 the applicant had her right knee replaced and in 2001 the applicant had her left knee replaced.
Despite the surgery she continued to suffer from pain and other symptoms.
For almost two decades she received regular bi-weekly massages. The massages were paid for by Comcare as medical treatment pursuant to section 16 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act).
On 21 March 2016, Comcare refused to continue paying for the applicant’s massages. On 3 August 2016, Comcare affirmed that determination on the basis that it was not satisfied that the continuation of massage therapy would permanently improve the applicant’s compensable condition and therefore it was not reasonable medical treatment.
The applicant applied to the Tribunal for review. When the application came before the Tribunal the scope of the issues to be determined expanded considerably. Comcare put in issue (as it is entitled to do[1]) not only the question of whether the massage therapy, which the applicant was obtaining, was reasonable medical treatment, but also:
(a)whether, having regard to the evidence now available, the applicant’s accepted injury was ever compensable;
(b)if it was, whether it was a temporary aggravation that ceased to be compensable at an earlier point in time; and
(c)whether the massage therapy obtained was ‘in relation to’ an accepted injury.
[1] See Telstra v Hannaford (2006) 151 FCR 253.
I have resolved the matter by reference to the last of these questions. The applicant’s massage treatment has for many years focussed on conditions which are not part of her accepted claim. The massage therapy, which the applicant obtains, is not in relation to her accepted injury and there is virtually no evidence (and none of any quality) which relates the massage treatment she receives with her accepted condition. Accordingly, I affirm the decision under review. I elaborate on my reasons further below.
I have decided not to conclusively resolve the other questions raised by Comcare. In particular I have not resolved:
(a)whether as a consequence of her bilateral knee replacement the applicant no longer suffers from the effects of her original compensable injury; and
(b)whether the applicant’s original injury was ever compensable.
I accept that there is significant doubt as to whether the applicant has any ongoing entitlement to compensation under her accepted claim in light of her bi-lateral knee replacement surgery. That surgery replaced the injured knees and whatever ongoing symptoms the applicant suffers from in her knees, it seems logical that those symptoms arise from conditions other than the aggravation of osteo-arthritic knees which have now been entirely removed.[2]
[2] Section 37 Tribunal Document (T)163, folio 680.
However, merely because the applicant has no entitlement to compensation in relation to her accepted claim does not mean she would not be entitled to compensation if she submitted a fresh claim relying on section 4(3) of the SRC Act (injuries which are the result of medical treatment) in relation to her post-operative knee symptoms. The approach taken by the Federal Court in Portors v Comcare[3] highlights the need for compensation arising from medical treatment of a compensable injury to be subject to a fresh claim.[4] Consequently, although compensation may not be payable under the accepted claim, a fresh claim based on symptoms arising from her medical treatment may be open.
[3] [2018] FCA 914.
[4] Ibid - See Justice Robertson’s conclusions at [30].
The question before the Tribunal is restricted to massage therapy. That question can be resolved without engaging with this broader issue which has significant implications for the applicant’s ongoing entitlement to compensation. The applicant was self-represented in the Tribunal and none of her evidence addressed the specific issue of whether her ongoing symptoms are the result of the knee replacement surgeries. Given its complexity (both medically and legally) I am unwilling to resolve it adversely to the applicant in circumstances where it is not necessary to do so. It is the kind of issue that is more readily resolved in the flexible environment of an initial determination where the precise framing of a claim can be more easily altered to accommodate the correct legal and medical analysis. In the Tribunal by contrast, there is little flexibility to re-frame claims so that the broader merits can be considered.[5]
[5] See for example Comcare v Lofts [2013] FCA 1197 at [58] – [61]; Auburn Municipal Council v Szabo [1971] 67 LGRA 427; Sellick v Australian Postal Corp [2009] 113 ALD 58.
For similar reasons, I do not propose revisiting the question of whether Comcare was ever liable in relation to the applicant’s right knee injury. The incident in 1988 was trivial and the contemporaneous documents suggest that the applicant has over time given more dramatic accounts of the precipitating event. However, the threshold for compensation is low[6] and Comcare reviewed the question of its ongoing liability a number of times between 1988 and 2001. Notwithstanding the views of a number of doctors it had briefed, Comcare expanded rather than restricted the scope of the injuries it was willing to accept liability for, in line with the views of the applicant’s treating doctors. The matter is further complicated by the fact that over time the applicant has relied to varying degrees on four separate incidents as potentially giving rise to liability.
[6] SRC Act ss 5A and 5B: Either an injury arising out of, or in the course of employment or a disease contributed to by the applicant’s employment, to the requisite degree.
Given the complexity of the question and the significance of its impact on the applicant’s ongoing entitlement to compensation, I have decided that it is preferable not to re-visit the question of liability when the reviewable decision can be affirmed on other grounds.
TRIBUNAL’S POWER TO MAKE FINDINGS AT VARIANCE WITH MEDICAL EVIDENCE
Before examining the facts and medical opinions offered in relation to the applicant’s massage therapy there is one additional general matter which I will address. It was put to me that Rodriguez v Telstra Corporation Ltd (Rodriguez)[7] and Comcare v Wuth (Wuth)[8] established the proposition that where a matter involves expert opinion the Tribunal can prefer one opinion over another but it cannot substitute its view for that of the experts.[9]
[7] [2002] 66 ALD 579.
[8] [2018] FCR 89.
[9] See Comcare’s Outline of Opening Submissions at [19.2].
I do not accept that those cases stand for such a widely stated proposition.
My reason for that view is best explained by reference to an example. In a permanent impairment cases there may be a dispute between two doctors about the loss of range of movement in a shoulder where both doctors are satisfied that there is some loss of range but they disagree on the amount of loss. If video evidence came to light which showed the applicant displaying a full range of shoulder movements, the Tribunal would be entitled to disregard both medical opinions and reach its own view on the question of the claimant’s degree of permanent impairment.
I do not read Wuth as suggesting otherwise. In Wuth the finding that the Tribunal had a more limited evaluative role stemmed from the fact that the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th Edition (AMA5) guided the assessment of the degree of permanent impairment. In the circumstances of that case AMA5 made clear that only a person with the skills, training and experience of a physician could exercise the required clinical judgment in that case. In that context, it is understandable that the Full Federal Court concluded that when applying AMA5:[10]
it is not open to the Tribunal to undertake a clinical evaluation for itself without medical evidence on the comparison required, given the binding nature of the approved Guide, because AMA5…made it clear that that process was to be undertaken by physicians.
[10] Comcare v Wuth [2018] FCR at 105.
Rodriguez is more ambiguous. In my assessment it is best understood as a case where Kiefel J found there was no evidence to support the finding made by the Tribunal. It does not in terms rule out the possibility that factual evidence may provide a proper basis for the Tribunal departing from the views of the medical witnesses it hears from. The case of Comcare v Wiggins[11] makes clear that the Tribunal can form views inconsistent with the opinions of doctors if there is probative evidence to justify them.
[11] [2019] FCA 1465 at [67].
LEGAL FRAMEWORK
The applicant claims that her massage therapy is reasonable medical treatment obtained in relation to her knee injuries. Comcare has, in the past, accepted these injuries as originating out of an incident which occurred on 31 October 1988 just prior to the commencement of the SRC Act. Accordingly, the provisions of Compensation (Commonwealth Government Employees) Act 1971 (1971 Act) apply.
As I have decided not to address the question of whether liability should have been accepted originally, the differences between the tests in the 1971 Act and the SRC Act are not significant in the determination of this claim. As a consequence of section 124 of the SRC Act, a person is entitled to compensation under the SRC Act in respect of an injury suffered before the SRC Act commenced if compensation was or would have been payable in respect of that injury under the 1971 Act.
Consequently, section 16 of the SRC Act is the important provision for the purposes of determining the applicant’s medical expenses claim. It is the source of Comcare’s power to pay the applicant compensation in relation to massage therapy. It relevantly provides:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
The definition of medical treatment relevantly includes:
(a) medical or surgical treatment by, or under the supervision of a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
(c) …
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory…[12]
[12] SRC Act s 4.
There is no question that the applicant’s massage therapy qualifies as medical treatment. Indeed it may meet the description of medical treatment under a number of paragraphs of the definition.[13]
[13] Paragraph (b) and (d) of the definition is certainly met in this case and possibly paragraph (a).
In determining whether medical treatment is obtained ‘in relation to the injury’ it is necessary to determine objectively and by reference to the evidence whether there is a relational connection between the massage therapy and the compensable injuries.[14] I note that the expression ‘in relation to’ is of wide and general import and should not be read down.[15]
[14] Howes v Comcare [2016] FCA 1521 at 54.
[15] Kennon v Spry [2008] HCA 56 at [217].
EVIDENCE
The Tribunal had before it the following material:
(a)Tribunal Documents (T) filed by Comcare and amended by the Tribunal to insert T123A, folio 392a, representing a missing page from the report of Mr Ian McDonald.
(b)Document titled ‘Applying the Clinical Framework to assess the reasonableness of medical treatment’;[16]
(c)Undated statement from the Applicant titled ‘Response to Report of Dr. Mourad’;[17]
(d)Transcript of Proceedings on 10 July 2018 and 11 July 2018;[18]
(e)Document titled ‘Response to Tribunal Questions relating to the Clinical Framework for the Delivery of Health Services dated 10 August 2018;[19]
(f)Document titled ‘Claim Invoice Line Item List’ for Applicant’s Chiropractor Treatment on 24 September 2019.[20]
[16] Exhibit 1A.
[17] Exhibit 1B.
[18] Exhibit R1.
[19] Exhibit R2.
[20] Exhibit R3.
In addition I had the benefit of oral evidence from the applicant, the applicant’s General Practitioner (GP) Dr Stephen Moulding, one of the applicant’s massage therapists, Mr Ian McDonald and Comcare’s independent medical examiner, Dr Mohamad Mourad, an orthopaedic surgeon. Set out below are my comments on each witness to indicate the view that I formed of their evidence in general terms. Where I have accepted a witness’ oral evidence I have referenced that fact in my findings of fact.
The applicant gave her evidence in a straight forward manner. She had poor recollection of very recent events (such as her travel movements a few months before the hearing) and she had a tendency to connect conditions from which she suffered with her accepted conditions based either on her own theories, or based on conversations with medical practitioners which were not otherwise in evidence. For example, the applicant has suffered from lymphedema (a condition which results in fluid retention in limbs) since she was a teenager. However, she blamed her knee replacement surgeries for fluid which collects around her knees.[21] There was no evidence from any specialist which suggested that the fluid retention was the result of knee surgery rather than the pre-existing lymphedema.
[21] See for example the applicant’s evidence at 2:38:21 of audio recording.
I am also satisfied that she was prone to exaggerating the impact of various incidents on her physical condition. I do not believe that she was doing so consciously but I am satisfied that the contemporaneous documents give a more accurate account of the impact of various incidents on the applicant’s physical condition. To the extent that there is any inconsistency between the contemporaneous records and the applicant’s evidence, I prefer the contemporaneous accounts.
Dr Stephen Moulding, the applicant’s GP since 2009, and the doctor responsible for supporting ongoing massage therapy in the applicant’s treating plan, also gave evidence in the Tribunal. He gave careful and truthful evidence. The most significant evidence he gave was about his understanding of the purpose and effect of massage therapy. His understanding was that the massage therapy was being used to help the applicant with her knee pain and he had not requested it for any other purpose. His decision to request it was based on the subjective report by the applicant that it improves circulation, relaxes muscles and reduces pain.
Mr Ian McDonald, a massage therapist, gave evidence about the massage therapy the applicant actually received. He was at a disadvantage in some respects because he was not the massage therapist who regularly treated the applicant in the period the subject of the reviewable decision. But he did treat her on some occasions.
To overcome the fact that he was not directly responsible for the applicant’s massages, he read out the most recent treatment notes.
The picture which emerged was that originally the massage treatment focussed on the applicant’s right knee, however over time, the focus changed to other problems including problems which arose from altered gait, lower back problems and lymphedema. Mr McDonald indicated that as time went by treatment increased to the neck, arms and shoulders which he said were troublesome because of the applicant’s altered gait which arose from the original injury. According to Mr McDonald, the treatments assisted by increasing function, reducing pain and increasing mobility. Mr McDonald conceded that he was treating problems other than the applicant’s knees. However, he characterised the problems he was treating as complications which arose because of the knee injuries. This included lymphedema. He was unable to point to any medical opinion which suggested that the applicant’s lymphedema was linked to her compensable injuries. He conceded that since 2015/2016 the focus of the massage therapy had been on the applicant’s upper back although at times it did include the legs. His evidence was of limited utility because he did not have the relevant expertise to link the various symptoms, which the applicant was having treated, with any accepted condition. Mr McDonald’s evidence was useful from a factual point of view in that he established that much of the applicant’s treatment was focussed on areas of her body which have not been connected to the applicant’s original knee condition.
Dr Mohamad Mourad, orthopaedic surgeon, gave evidence on behalf of Comcare. He was a careful and credible witness. He did, however, only see the applicant on one occasion. He also faced the difficulty that it was necessary for him to give opinions about conditions which emerged in the late 1980’s. In determining the effects of the injuries suffered in the 1980’s and early 1990’s I consider it safer to rely on the contemporaneous assessments of the applicant’s condition, particularly those undertaken by treating doctors which can be found in the Tribunal Documents.
Subject to those qualifications, Dr Mourad’s opinions were carefully considered and, except to the extent that they are inconsistent with the views of doctors better placed to assess particular conditions at earlier times, his evidence was useful.
FACTUAL FINDINGS
Set out below are my findings of fact. Where any finding is controversial I have referenced the evidence on which the finding is based.
The applicant is a 79 year old retired school principal.
Since she was a teenager she has suffered from lymphedema[22] but until her 40’s she enjoyed good health. Lymphedema involves the retention of fluid in the limbs.
[22] T84.
In 1981 she was involved in an incident concerning a trampoline which affected her mid-thoracic spine. The effects however were transitory and subsequently settled.[23]
[23] T31, folio 100.
In the years which followed she suffered three injuries to her knees.
The first occurred on 21 March 1986. The applicant slipped on a wet floor falling forwards and landing on both knees and hands. This caused pain in both knees and hands and she also jolted her neck and both shoulders. Her symptoms from this fall resolved.[24]
[24] Applicant’s Statement of Facts, Issues and Contentions at [3.4] confirms that she was ‘asymptomatic’ prior to the incident of 10 October 1988.
The second incident, which was the most serious in its consequences, occurred on 10 October 1988. It is not in dispute that the incident occurred while the applicant was walking down a ramp at school. As time has passed the applicant’s description of the severity of this incident has changed with its immediate impact being described in increasingly dramatic terms.[25] I am satisfied that the early accounts of the incident, which describe the incident in quite benign terms, more accurately reflect what occurred.
[25] See Exhibit A2: Compare Applicant’s witness statement dated 13 February 2017 with the original claim.
In the Staff Notification of Injury or Disease form, filled out in December 1988 the applicant described the incident as follows:[26]
Right knee pain (front and back area) while descending school ramp area on my way from admin to class room teaching, symptoms – continued pain to the right knee area fluctuations in intensity.
[26] T6, folio 12.
In the Compensation Claim form the applicant described how the injury happened in the following terms:[27]
Sudden pain noticed in right knee area while normally walking. Pain persisted – worsening.
[27] T9, folio 15.
The applicant attended her GP in relation to the incident on 13 October 1988. I am satisfied that this incident produced symptomatology in the applicant’s right knee for the first time. Those symptoms persisted from 13 October 1988 and did not resolve until the applicant’s right knee was replaced in 1998.
When symptoms persisted over the following months, the applicant was referred to orthopaedic surgeon, Dr Anthony Cairns, in January 1989. Arthroscopic surgery followed in February and significant degenerative change was noted. Dr Cairns expected that the applicant would continue to feel effects from osteoarthritis.[28]
[28] T11, folio 23.
Symptoms persisted through to August 1989.
Dr Robert Allan, her GP expressed this view in August 1989:[29]
Although there was underlying knee pathology before symptoms developed in mid-October 1988 it was an incident at work that initiated the sequence of events leading to her operation and the post-operative difficulties experienced by [the applicant].
[29] T15, folio 30.
In June 1989, Comcare accepted liability for the pinching of a degenerate medial meniscus.[30]
[30] See T42, folio 164: In 1999 extended its liability to include aggravation of underlying osteoarthritis of the right knee.
The right knee pain persisted between 1989 and 1991 although it varied in intensity. The applicant suffered no pain in her left knee.
On 15 May 1991, the third incident occurred. The applicant was accompanying a student to the school sports ground and was walking down a grassy slope. She slipped, and fell onto her knee. This increased the pain in the right knee. Lumbar pain occurred. She was absent from work for a short period.[31] Comcare accepted liability to pay compensation in respect of the employee’s ‘twisted both knees’ claim (the 02 Claim).
[31] T17, folio 36.
The applicant now claims that the fall resulted in headache, pain to the knees more noticeably to the right also to the mid and lower back and neck/shoulders.[32]
[32] Exhibit A2 at 4 – 5 [6].
Such claims do not square with the claims accepted in 1991[33] and, with the exception of lower back pain, none of the other issues were raised with Dr Billett when he examined her in 1996 and only knee pain was mentioned to rheumatologist, Dr Andrew Brook when he saw her in 1996. Accordingly, I am satisfied that the applicant did not suffer any injuries to her upper back, neck or shoulder in the third incident.
[33] T42, folio 164.
In 1993 Comcare extended liability in relation to the claim arising out of the 1988 incident to include ‘gastric ulcers’ which were the result of use of non-steroidal anti-inflammatories used in response to her right knee issues.[34]
[34] Ibid.
From 1991 to 1995 the applicant continued teaching duties until she was promoted to principal.[35]
[35] T17, folio 36.
By 1996 the pain over the applicant’s right knee was constant and daily but of varying severity and it would occasionally give way.[36] In 1996 she also reported that she suffered from intermittent daily pain in her left knee and lumbar spine.[37]
[36] Ibid, folio 37.
[37] Ibid.
In 1996 Comcare ceased liability having obtained reports from a rheumatologist and an orthopaedic surgeon.[38]
[38] T23, folio 62.
In 1998 the applicant made a claim for permanent impairment. In the course of the assessment of that claim the applicant began to report to doctors significant symptoms arising from the incident which occurred in 1981. The attribution by the applicant of significant symptoms to the 1981 incident was not documented until she reported them to Dr Mellick in 2000. The prominence given by the applicant to the 1981 incident has varied over time and consequently it is difficult to be definitive about what its effects were. Given the long gap between the incident and the attribution of significant symptoms to it, I am satisfied that it is unlikely that the symptoms arising from the 1981 injury were anything more than temporary. The symptoms the applicant was describing to Dr Mellick were not the result of the 1981 incident. The applicant’s late attribution of ongoing symptoms to that injury reflects a pattern on the applicant’s part of providing quite varied accounts of the origin of many of her symptoms.
On 4 November 1998, the applicant underwent a total knee replacement on her right knee.[39] There were complications with the surgery which resulted in much more physical incapacity causing secondary depression.[40] She did not return to work until 2 May 1999 and returned only on limited hours.[41]
[39] T26, folio 69.
[40] Ibid, folio 70.
[41] Ibid.
Following the applicant’s claim for permanent impairment, the applicant’s conditions were thoroughly investigated by Comcare. While a number of medical reports were obtained very little in the way of medical consensus emerged as to the causes of the applicant’s symptoms or the extent to which they could be related to her employment.
In the end, despite the fact that no consensus emerged as to what was causing the applicant’s ongoing symptoms, Comcare extended the applicant’s accepted claim of ‘pinching of degenerate meniscus’ to include ‘aggravation of osteoarthritis of the left knee’ in a reconsideration of own motion on 22 November 2001.[42]
[42] T42, folio 166.
Further, on 17 December 2001, the Tribunal made a decision by consent in the following terms:
(a)The Applicant continues to suffer from her “pinching of degenerate medial meniscus and aggravation of underlying osteoarthritis of the right knee, gastric ulceration, adjustment disorder with depressed mood” (the compensable injury) in respect of which Comcare has accepted liability to pay compensation under the SRC Act;
(b)The applicant has suffered a 40% whole person impairment as a result of the compensable injury comprised as follows:
(i)30% permanent impairment of the lower limbs pursuant to Table 9.5 of Comcare Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”);
(ii)10% permanent impairment pursuant to Table 5.1 of the Guide; and
(iii)5% impairment of the lumbar spine pursuant to Table 9.6 of the Guide.
(c)The Applicant has not suffered a permanent impairment of the cervical spine pursuant to Table 9.6 of the Guide as a result of the compensable injury.
(d)The Applicant has not suffered a permanent impairment pursuant to Table 13.1 of the Guide as a result of the compensable injury.
This decision means that Comcare agreed to pay compensation for injuries to the applicant’s knees (notwithstanding the knee replacements) and lumbar spine along with psychiatric symptoms. Comcare did not agree to make permanent impairment payments in relation to the applicant’s cervical spine nor did it agree to pay compensation in relation to the applicant’s headaches. Given the weakness of the medical evidence supporting any link between the applicant’s right knee condition and the applicant’s headaches and cervical spine problems, the decision is consistent with the evidence that was available at the time.[43] No more convincing evidence has emerged since which links the applicant’s knee injury with cervical spine pain and headaches.
[43] See T32, folio 119 (report of Dr Mellick); See T31, folio 106 (report of Dr Hopkins); – I note that Dr Eaton and the applicant’s GP took a different view but for reasons which are speculative.
On 23 March 2004, a report was prepared to consider whether the applicant was totally and permanently incapacitated for work. Ongoing knee pain and back pain was noted. Treatment was noted to include ‘massage to help with fluid drainage and her back’.[44] In 2004 the applicant retired on invalidity grounds.
[44] T44, folio 172.
On 9 February 2006, the applicant had a whole body bone scan. It identified L5/S1 arthropathy and arthropathy present in the shoulders, wrists and feet.
The applicant continued to make claims in relation to her accepted condition in the years following her retirement.
In 2009 the applicant commenced attending upon her current GP, Dr Moulding.
At this point in time the applicant was having massages twice a week most weeks.
On 12 August 2011, Dr Moulding prepared a treatment plan. It included 52 sessions of massage to be reviewed in February 2012. Massage was to be to “affected areas”. The benefits were recorded as being ‘stops cramps, spasms – helps flexibility’.
In September 2012 the applicant had a cortisone injection in her right hip after ultrasound revealed a tear in the gluteus medius tendon.[45]
[45] T89.
The Tribunal Documents contain clinical notes from the applicant’s massage therapist which cover the period from 2009 through to 2013. A very significant focus of the massage from the start of 2013 was the applicant’s left shoulder[46] and the massages included lymphatic drains.[47] Despite the fact that the applicant’s lymphedema is a condition she had long before she commenced work with the Commonwealth, these sessions were paid for by Comcare as medical treatment of the applicant’s accepted knee conditions.[48]
[46] T88, folio 254 - 263.
[47] See for example T88 (entries on 9 and 12 April 2013).
[48] Exhibit R3.
On 13 March 2014, the applicant underwent a guided ultrasound cortisone injection on a ‘large supraspinatus tendon tear and associated synovitis’ in the left shoulder. On 8 September 2015, Dr Moulding prepared a report on the applicant’s conditions for another doctor who was investigating the applicant for possible dementia. The conditions which he identified the applicant as suffering from included ‘Tear tendon – left shoulder partial thickness tear subscapularis with full thickness tear supraspinatus’.[49]
[49] T107.
From 2014-2015 the focus of massage was on the neck, back shoulder and pelvis.[50] The sessions were twice weekly. One session with a massage therapist identified as “Rob” and the other session with a massage therapist identified as “Clare”.[51]
[50] T109, folio 353 - 368.
[51] Or possibly ‘Colleen’.
On 10 February 2016, Comcare requested a report justifying the ongoing provision of massage therapy. Mr Rob Benson, the applicant’s massage therapist reported that he had been treating the applicant once per week for the last two years. He noted that his treatment ‘focuses on the mid and upper area of the body to treat the condition of Thoracic Outlet Syndrome’.[52] He expressed the view that the applicant suffers from chronic pain mostly to the right side of the pelvis through to mid/upper thoracic, which stems from bilateral knee reconstruction. He noted that his treatment was ‘to release the tension from these areas and reduce pain including the referred pain in her shoulders, neck and arms’.[53] He notes that the applicant ‘initially finds good reduction of chronic pain and tension which reportedly reappears some days later’. Mr Benson is of the opinion that:[54]
muscle constriction originated from two bilateral knee reconstructions. This ailment is demonstrated by the patient walking with a limp. I believe the patient will need on-going treatment to prevent her condition from worsening.
[52] T115.
[53] T115.
[54] T115, folio 375.
On 21 March 2016, Comcare denied liability to pay compensation for massage therapy pursuant to section 16 of the SRC Act. The applicant sought review of that decision.
On 22 June 2016, Dr Moulding prepared a report supportive of ongoing massage. He relevantly stated:
I am supportive of these modes of treatment on the grounds that they are helping to maintain her current capacity and prevent further deterioration. They do this by reducing pain, increasing mobility, maintaining major limb function and reducing the need for other support services.[55]
[55] T123, folio 392.
Around this time Mr McDonald, the Managing Director of Therapeutic Massage Centre, prepared a report in relation to the applicant. It appears that he has had intermittent involvement with the applicant’s care. In the report he noted that:[56]
The GP has a care plan and part of that plan is regular massages. It is up to the GP to determine whether these massages are providing the appropriate benefit to [the applicant] during their regular consultations….There is no expectation that treatment will end unless the treating doctor, in consultation with the patient…feels that massage can no longer continue to ameliorate her condition…The treatment has been very successful, along with other components of the treatment plan, in ensuring [the applicant] has been able to function with little pain…She is working with two of my therapists one of whom deals mostly with her leg issues (she specialised in work with runners and football players who have variety ankle, knee and leg problems) and the other who specializes in upper body work looking at her hips, back and shoulders.
[56] T123A.
It is unclear what Mr McDonald bases his description of the treatment on. The clinical notes reveal significant focus from both therapists on the upper body including shoulders and arms. There is no evidence of consistent focus on the lower limbs below the glutes.
On 3 August 2016, Comcare affirmed the decision under review.
Despite the fact that Comcare ceased paying for the treatment the applicant continued to attend for massages primarily by Mr Benson but the applicant received massages from a range of other therapists. The focus remained the applicant’s neck, shoulders back and pelvic area.[57]
[57] T134, folio 450.
The applicant sought review of Comcare’s decision to cease payment of the massage therapy treatment. She prepared a statement concerning the benefit she received from massage. She stated that:
Remedial massage therapy actively supports [my assisted independence] by addressing soft tissue injury issues of muscles, tendons ligaments and fascia resulting in improved circulation, reduced pain, improved flexibility and mobility, relieves tension and anxiety, reduces painful swelling and inflammation to enable optimum function for a reasonable life – life style.[58]
[58] T137, folio 469.
Comcare sent the applicant to orthopaedic surgeon, Dr Stubbs, for review. He prepared a report dated 15 March 2017. In his opinion there was no evidence that massage therapy makes any difference to any of the conditions to which it is applied and that massage therapy would not be of benefit.[59]
[59] T138, folio 497.
In August 2017 the applicant underwent an ultrasound on her right shoulder which found evidence of bursitis with impingement. An X-ray was also performed on the right shoulder which revealed osteoarthritic changes in the acromioclavicular joint. The applicant’s knees were also X-rayed. No complication was demonstrated.[60] On 17 August 2017, the applicant had a cortisone injection into her right shoulder.[61]
[60] T143; T144.
[61] T148.
On 11 April 2018, Dr Gillespie provided a report. In relation to the applicant’s knees he noted:[62]
both knees continue to function well…The implants look stable, with no sign of implant failure or tibial insert wear sufficient to contemplate any sort of surgery…[the applicant] has been troubled for many years with chronic lower limb lymphedema and has had a number of ancillary health measures including massage and chiropractic treatments in her lower limbs related to that chronic swelling…In general terms…it is possible that regular deep soft tissue massage may offer some symptomatic improvement for [the applicant].
[62] T155.
I understand this report as saying that the applicant’s lymphedema is relieved by massage. It does not suggest any link between the applicant’s accepted knee injuries and the massage treatment she receives.
Throughout 2017 and 2018 the applicant continued massage therapy with Mr Benson who continued to focus on her neck, shoulders, back and pelvis while the other therapists addressed a wider range of body areas such as her hips and the glutes.[63]
[63] T160.
On 17 June 2019, Dr Mourad, a consultant orthopaedic surgeon, prepared a report in relation to the applicant. He concluded:
(a)That the nature of the 1988 injury was a temporary aggravation of symptoms related to the pre-existing degenerative changes in her knees. There was no evidence of permanent aggravation of pre-existing pathology caused by her employment.[64]
(b)By March 2016 the original injury did not exist because the knee had been replaced.[65]
(c)The massage being obtained by the applicant was not in relation to the effects of the 1988 injury.[66]
[64] T163, folio 681.
[65] Ibid, folio 682.
[66] Ibid.
ANALYSIS
Comcare is liable to pay the cost of medical treatment obtained in relation to an injury - being treatment that it was reasonable for the employee to obtain in the circumstances.[67]
[67] SRC Act s 16.
There is no dispute that the applicant’s massage therapy meets the definition of medical treatment.[68]
[68] Applicant’s Statement of Facts, Issues and Contentions at [3.16].
As discussed at the start of these reasons, I do not propose revisiting the question of whether, on the evidence presently available, the applicant ever suffered an injury (in the statutory sense) in 1988. Further, I am going to proceed on the assumption that the knee symptoms she suffers from now are the product of the compensable injuries that it was accepted she suffered from in 2001. I am also proceeding on the basis that the applicant has a compensable injury to her lumbar spine as reflected in the permanent impairment decision in 2001. Accordingly, for present purposes, I will proceed on the basis that if the applicant is receiving medical treatment in relation to either her knee injuries or the injury to her lumbar spine (the accepted conditions) then compensation would be payable under section 16 of the SRC Act.
Consequently, only two questions arise:
(a)What medical treatment is the applicant receiving? And,
(b)is there a relational connection between that treatment and her accepted conditions?
The medical treatment the applicant receives
The evidence before the Tribunal concerning the treatment the applicant receives comes from four sources. The report of Mr Benson, the evidence given by Mr McDonald, the applicant’s own evidence and the massage therapists’ clinical notes. The evidence from the clinical notes reveals that in the last decade the applicant has received massage across wide areas of her body. In 2013 the focus of treatment was her left shoulder, it later moved to her right hip,[69] on occasions the treatment has involved lymphatic drains and in the last few years the focus has been on the applicant’s neck, shoulders, arms and back.
[69] T88, folio 254 – 318.
The report of Mr Benson confirms this. In his report he states that his treatment ‘focuses on the mid and upper area of the body to treat the condition of Thoracic Outlet Syndrome’.
Mr McDonald in his oral evidence noted that in 2006 the initial focus of treatment was on the knees but by ‘the mid teens’ there was increased focus on the neck, arms and shoulders.
He also noted the need to ‘pump lymph out of the legs’ and accepted that he was treating from around 2006 the applicant’s lymphedema. By 2016 he indicated there was not much lymph drainage and that the work focussed on the back muscles, neck, arms and glutes. Mr McDonald indicated that the focus of current treatment was the upper back but did include the hips, glutes and legs. It was unclear on what basis decisions were made to massage the different parts of the applicant’s body.
The applicant in her evidence in chief was not very specific about what part of her body was the focus of the massage at any particular time but gave very general evidence about the relief which massage therapy gave her in relation to pain, mobility and mental anxiety and stress. She agreed that in 2016 she did get massage to move lymphatic fluid but more generally said ‘massage responds to needs at the time’. She accepted in cross examination that it is the ‘back and shoulder’ that is normally massaged. Overall, the impression the applicant gave was that whenever she was suffering any symptom in any part of her body, in her mind it was related to a problem which began with her right knee in 1988 even if there wasn’t specific medical evidence to support her hypothesis.
The massage therapist’s clinical notes are consistent with the evidence of the other witnesses, demonstrating treatment of widespread pain all over the applicant’s body without any consideration of whether the presenting issue relates to her accepted conditions.
For example, for a long period during 2013 the applicant was receiving massage treatment in relation to what the medical records indicate is a frank injury to her left shoulder.[70] The applicant has also been treated in relation to a hip injury.[71] In addition, the applicant has received massage treatment for lymphedema.[72]
[70] See T89; See T88 (clinical notes).
[71] T89, folio 322.
[72] T88, folio 260.
Most of the recent treatment the applicant receives relates to her neck, shoulders, arms and back.
Is the treatment the applicant receives in relation to her accepted conditions
There is no satisfactory medical evidence which links the massage therapy treatment, which the applicant claims, with her accepted conditions.
Any treatment of her lymphedema relates to a non-compensable condition. Lymphedema is a condition which the applicant has suffered from since she was a teenager and has nothing to do with her employment with the Commonwealth.
The only doctor who provides any support for the treatment is her treating surgeon Dr Gillespie.
Dr Gillespie in this report of 11 April 2018 gives some support for massage therapy as a treatment for lymphedema. It is clear from his report that he does not understand that the applicant’s lymphedema pre-dated the applicant’s knee replacements and dates back to her teenage years. In a context where it is understood that the applicant’s lymphedema is not related to her bilateral knee replacements but is a pre-existing condition, his report provides no support for a relationship between any need for massage therapy and the applicant’s accepted conditions.
The applicant in her evidence claimed that her lymphedema changed in nature after her knee surgery and so should be treated as compensable. The applicant had not reported that to any doctor prior to the Tribunal hearing despite her post-operative symptoms being the subject of multiple reports. Accordingly, I am satisfied that it is a recent invention. Any treatment of lymphedema is not ‘in relation to’ the applicant’s accepted conditions.
For a long period until at least late 2015 the applicant was receiving massage treatment in relation to a frank left shoulder injury which was never the subject of any claim and which appears to have been suffered long after the applicant was retired on invalidity grounds in 2004.[73] She also has been treated in relation to a hip injury[74] which no credible medical evidence connects to her accepted condition. None of the massage therapy provided in relation to those injuries has any relationship to the accepted conditions.
[73] See T89; See T88 (clinical notes).
[74] T89, folio 322.
The bulk of the remainder of her therapy focuses on her neck, shoulders, arms and back. The attempts to create a relational connection between these symptoms and the applicant’s accepted conditions have been left to her massage therapists.
The massage therapist who most often treats the applicant, Mr Benson, describes the condition which he is treating as thoracic outlet syndrome. It is clear that the focus of his efforts is on the applicant’s upper body.[75] While in the mind of the massage therapist there is a link between the applicant’s knee conditions and the treatment he provides, the weight of the evidence available does not support that view. The massage therapist’s theory is that his therapy is ‘to release the tension from [the pelvis and mid/upper thoracic spine] and reduce pain including the referred pain in her shoulders, neck and arms’.
[75] T109 – see entries for ‘Rob’.
He claims that muscle constriction which he deals with originated from two bilateral knee constructions. He bases this conclusion on the fact that the applicant walks with a limp. This theory was also put forward by Mr McDonald in oral evidence.
Neither massage therapist cited any credible medical evidence to support this theory. Instead, Mr McDonald simply said it is up to the GP to determine whether these massages are providing the appropriate benefit to the applicant during their regular consultations. Unfortunately the applicant’s GP was unaware of what parts of the applicant’s body were being treated.
There is no specialist support for the view that massage therapy to the applicant’s hips, glutes, shoulders, neck and arms is medical treatment in relation to the applicant’s accepted conditions. Dr Gillespie, the applicant’s treating surgeon, reports that:
both knees continue to function well…
The implants look stable, with no sign of implant failure or tibial insert wear sufficient to contemplate any sort of surgery at this point…
She has been troubled for many years with chronic lower limb lymphedema, and has had a number of ancillary health measures including massage and chiropractic treatments in her lower limbs related to that chronic swelling...
In general terms, while I accept that her massage may not resolve her lymphedema, it is possible that regular deep soft tissue massage may offer some symptomatic improvement for [the applicant].[76]
[76] T155, folios 573 and 574.
It is clear that to the extent that Dr Gillespie supports massage, it is restricted to treating her lower limb swelling. For reasons I have already explained, I do not accept that the applicant’s lower limb swelling and lymphedema is the result of her accepted conditions.
Dr Mourad’s report does not support the claim either. Dr Mourad did not consider that the massage being obtained by [the applicant] on 21 March 2016 was in relation to the effects of the injury suffered in 1988 and he found no evidence that massage therapy is indicated in the treatment of degenerative joint disease addressed by total knee arthroplasty. He considered that her treatment was more relevant to the pre-existing lymphedema/lipodema.[77]
[77] T163, folio 682.
The applicant’s GP was clear that he believed the applicant was receiving massage therapy for the purpose of dealing with ‘knee pain’ and that was the purpose of the treatment. In circumstances where the applicant says that her ‘new knees are great but the rest of her body is not so good’,[78] whatever the massage therapy is treating it is not knee pain.
[78] Applicant’s Oral Evidence on 24 September 2019 at 5:25:35.
Accordingly, there is no evidence from either a specialist or a GP which establishes any relational connection between the massage therapy the applicant actually receives and her accepted conditions.
In 2001 the applicant consented to a decision giving no compensation for permanent impairment in relation to her cervical spine and her intermittent headaches. At that time Doctors Mellick and Hopkins rejected any relationship between the applicant’s knee condition and her cervical spine condition and headaches. In relation to the cervical spine condition I am satisfied that it was the product of osteo-arthritis and the headaches were the product of muscle tension.[79] In these proceedings the applicant did not lead any credible medical evidence which supported a different view. Indeed the only medically trained doctor who prepared a report for the purposes of these proceedings and supported her claim, the applicant’s GP, did so on the mistaken understanding that the massages she was receiving were for treatment of knee pain rather than upper body tension.
[79] See reports of Dr Mellick and Dr Hopkins.
DECISION
Having rejected the theory posited by the applicant’s massage therapists that by treating wide ranging pain in many different parts of the applicant’s upper body they are providing treatment of her accepted conditions, I am satisfied that the massage therapy which the applicant has received and continues to receive, does not relate to her accepted conditions.
On that basis, the decision under review is affirmed.
117. I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member D O’Donovan.
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Associate
Dated: 14 April 2020
Date(s) of hearing: 24 September 2019 – 25 September 2019 Applicant: In person Solicitor for the Respondent: Ms Shery Sidrak, Comcare Counsel for the Respondent Ms Sarah Wright
Key Legal Topics
Areas of Law
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Administrative Law
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Employment Law
Legal Concepts
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Expert Evidence
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Statutory Construction
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Consent
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Judicial Review
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