Heales and Comcare (Compensation)

Case [2018] AATA 3788

Heales and Comcare (Compensation) [2018] AATA 3788 (11 October 2018)

Division:GENERAL DIVISION

File Number(s):      2016/5161, 2016/6490

Re:Yvonne Heales

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mark Hyman, Member

Date:11 October 2018

Place:Canberra

The tribunal sets aside the decision under review in matter 2016/5161 and substitutes in its place a decision that Comcare remains liable for medical expenses for massage therapy for the applicant from 21 March 2016. The tribunal affirms the decision under review in matter 2016/6490

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

Mark Hyman, Member

Catchwords

COMPENSATION – reasonable medical treatment – massage and acupuncture – whether massage and acupuncture are medical treatment - whether massage and acupuncture provided in relation to the applicant’s compensable injury – whether massage and acupuncture are reasonable treatment in the circumstances – application of the Clinical Framework for the Delivery of Health Services – effectiveness of therapies – scientific basis – whether applicant had become dependent on therapies – not reasonable to continue acupuncture – reasonable to continue massage

Legislation

Administrative Appeals Tribunal Act 1975 s 37

Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14, 16

Cases

Drakev Minister for Immigration and Ethnic Affairs (No 2) (1979) 24 ALR 577

Bashar v Comcare [2002] FCA 837

Bayani and Australian Postal Corporation [2015] AATA 342
Chowdhary and Comcare [1998] AATA 448
Comcare and Alamos [2014] AATA 629
Comcare v Holt [2007] FCA 405
Comcare v Rope [2004] FCA 540
Comcare v Watson (1997) 73 FCR 273
Davis and Comcare [2017] AATA 93
Evans and Comcare [2016] AATA 827
Howes v Comcare [2016] FCA 1521
Jorgensen and Commonwealth of Australia [1990] AATA 129
Kennon v Spry (2008) 238 CLR 366
Lonsdale and Comcare [2004] AATA 555
Napier and Comcare [2017] AATA 1452
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356
Popovic and Comcare [2000] AATA 264
Pratt and Comcare [2004] AATA 1281
Rope and Comcare [2003] AATA 822
Rope and Comcare [2018] AATA 42
Topping and Comcare [2015] AATA 525
Warner and Comcare [2018] AATA 1403

Secondary Materials

Clinical Framework for the Delivery of Health Services; Transport Accident Commission and Worksafe Victoria

D C Cherkin et al, Randomized trial comparing traditional Chinese medical acupuncture, therapeutic massage and self-care education for chronic low back pain Archives of Internal Medicine JAMA 2001; 161: 1081-1088

C Crawford et al, The Impact of Massage Therapy on Function in Pain Populations – A Systematic Review and Meta-Analysis of Randomized Controlled trials: Part 1, Patients Experiencing Pain in the General Population Pain Med May 2016

R S Hinman et al, Acupuncture for chronic knee pain; a randomized clinical trial JAMA 2014; 312 (13): 1313-22

REASONS FOR DECISION

Mark Hyman, Member

11 October 2018

  1. This decision is about whether the applicant, Ms Yvonne Heales, is entitled to be paid medical expenses under workers’ compensation for massage and acupuncture. Ms Heales suffered an injury to her knee in 1988 and Comcare, the respondent, accepted liability for that injury under the Safety, Rehabilitation and Compensation Act 1988 (the SRC…

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AGLC
Heales and Comcare (Compensation) [2018] AATA 3788
Case
[2018] AATA 3788
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Ms Heales for compensation from Comcare for the costs of massage and acupuncture treatments. The dispute centred on whether these treatments constituted "medical treatment" under section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), whether they were provided in relation to Ms Heales's compensable knee injury, and if so, whether they were reasonable in the circumstances. The decision was made by Member Mark Hyman.

The court was required to determine three key legal issues. Firstly, whether massage and acupuncture are considered "medical treatment" for the purposes of the Act. Secondly, whether the evidence established that these treatments were provided "in relation to" Ms Heales's accepted compensable knee injury. Thirdly, even if they were considered medical treatment and related to her injury, the court had to assess whether it was reasonable for Ms Heales to obtain these therapies in her specific circumstances, applying the principles outlined in the Clinical Framework for the Delivery of Health Services.

Member Hyman reasoned that while both massage and acupuncture could be considered medical treatment, the evidence did not sufficiently demonstrate that they were provided in relation to Ms Heales's compensable injury. Furthermore, the court found that while massage might be considered reasonable treatment in some circumstances, the evidence did not support the continuation of acupuncture treatment as reasonable. The court noted that Ms Heales's subjective impression of increased lymphoedema post-knee replacement was not determinative, and Comcare could not dispute the provenance of the knee injury for the purpose of limiting payments under section 16 when liability for the condition had already been accepted under section 14.

Ultimately, the court determined that it was not reasonable to continue acupuncture treatment for Ms Heales. However, it found that massage treatment was reasonable in the circumstances. Comcare was therefore ordered to continue to pay for Ms Heales's massage treatments, but not for acupuncture.

Orders

Orders of the court

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Background

Background to the litigation

The evidence before me includes the documentary evidence detailing the history, over several decades, of Ms Heales’s compensable condition; the evidence of her treating health professionals and Comcare’s medico-legal expert; and Ms Heales’s own evidence, including that given under cross-examination. The early material on the development of Ms Heales’s condition and the varying basis of Comcare’s acceptance of liability is included in the summary below to provide context for the current matter before the tribunal, which is itself quite narrow in compass.Medical evidence – the background Ms Heales had a career as a teacher at primary schools in the ACT, rising eventually to the level of Principal. In 1988 she injured her right knee while walking down a ramp at Wanniassa Hills Primary School (T6, T7, T9). Recovery was slow and unsatisfactory. Comcare accepted liability in 1989 for pinching of a previously degenerate medial meniscus (T13, T16). Subsequently, and despite surgical attempts to repair damage to the knee, Ms Heales’s knee continued to be painful. She re-injured the knee in a further incident (also at school) in 1991 (and there are references also to an earlier fall in 1986). Her doctors administered cortisone injections, and she took analgesics and anti-inflammatories, until gastrointestinal complications prompted her to stop taking anti-inflammatories (T17). In 1996 a medico-legal assessment (T17) by Dr Derrick Billett, a consultant orthopaedic surgeon, concluded that the 1988 and 1991 incidents were temporary exacerbations of an underlying degenerative condition; that the condition had worsened since that time; that it affected both knees; and that she would eventually need a total knee replacement. A medico-legal report by a consultant physician (T18), Dr Peter Stevenson, dated 12 April 1996, notes Ms Heales’s reaction to non-steroidal anti-inflammatory drugs (NSAIDs). In December 1995 she had been diagnosed with antral ulceration (an ulcer in the lower part of the stomach), and this had been attributed to her use of NSAIDs. Treatment was stopping all NSAIDs and prescription of Losec, a proton pump inhibitor. These reports also note another factor in Ms Heales’s progressive condition: she has marked obesity which is especially apparent in her legs, to the point where some of her doctors have had difficulty conducting examinations and undertaking procedures (T10, T11). This condition has probably also contributed to the progress of the underlying degenerative osteoarthritis (T17, T18). In a 1998 report (T24) this is attributed in part to lymphoedema, a chronic accumulation of lymphatic fluid in the tissues. A number of reports from the period 1996-2001 explore the causation of Ms Heales’s knee condition, her problems with chronic pain, especially after 1995 when she could no longer take NSAIDs, and growing problems with the psychological effects of her pain. These problems were having increasing effects on Ms Heales’s capacity to maintain her work as well as aspects of her home life. In 1998 Ms Heales underwent a total knee replacement on the right. The doctors who examined her were not in agreement on the extent of any permanent impairment or on the contribution of her previous employment and the incidents in 1986, 1988 and 1991 to her conditions (T21, T22, T23, T26, T27, T28, T29, T30, T31, T32, T33, T34, T35, T36, T37, T38, T39).

Evidence

Evidence Before The Court

It is relevant that in the SRC Act extracts referred to above, the word “injury” is used to mean an injury for which the necessary connection with employment has been demonstrated under sections 5A and 5B.THE EVIDENCE The evidence before me includes the documentary evidence detailing the history, over several decades, of Ms Heales’s compensable condition; the evidence of her treating health professionals and Comcare’s medico-legal expert; and Ms Heales’s own evidence, including that given under cross-examination. The early material on the development of Ms Heales’s condition and the varying basis of Comcare’s acceptance of liability is included in the summary below to provide context for the current matter before the tribunal, which is itself quite narrow in compass.Medical evidence – the background Ms Heales had a career as a teacher at primary schools in the ACT, rising eventually to the level of Principal. In 1988 she injured her right knee while walking down a ramp at Wanniassa Hills Primary School (T6, T7, T9). Recovery was slow and unsatisfactory. Comcare accepted liability in 1989 for pinching of a previously degenerate medial meniscus (T13, T16). Subsequently, and despite surgical attempts to repair damage to the knee, Ms Heales’s knee continued to be painful. She re-injured the knee in a further incident (also at school) in 1991 (and there are references also to an earlier fall in 1986). Her doctors administered cortisone injections, and she took analgesics and anti-inflammatories, until gastrointestinal complications prompted her to stop taking anti-inflammatories (T17). In 1996 a medico-legal assessment (T17) by Dr Derrick Billett, a consultant orthopaedic surgeon, concluded that the 1988 and 1991 incidents were temporary exacerbations of an underlying degenerative condition; that the condition had worsened since that time; that it affected both knees; and that she would eventually need a total knee replacement. A medico-legal report by a consultant physician (T18), Dr Peter Stevenson, dated 12 April 1996, notes Ms Heales’s reaction to non-steroidal anti-inflammatory drugs (NSAIDs). In December 1995 she had been diagnosed with antral ulceration (an ulcer in the lower part of the stomach), and this had been attributed to her use of NSAIDs. Treatment was stopping all NSAIDs and prescription of Losec, a proton pump inhibitor. These reports also note another factor in Ms Heales’s progressive condition: she has marked obesity which is especially apparent in her legs, to the point where some of her doctors have had difficulty conducting examinations and undertaking procedures (T10, T11). This condition has probably also contributed to the progress of the underlying degenerative osteoarthritis (T17, T18). In a 1998 report (T24) this is attributed in part to lymphoedema, a chronic accumulation of lymphatic fluid in the tissues. A number of reports from the period 1996-2001 explore the causation of Ms Heales’s knee condition, her problems with chronic pain, especially after 1995 when she could no longer take NSAIDs, and growing problems with the psychological effects of her pain. These problems were having increasing effects on Ms Heales’s capacity to maintain her work as well as aspects of her home life. In 1998 Ms Heales underwent a total knee replacement on the right. The doctors who examined her were not in agreement on the extent of any permanent impairment or on the contribution of her previous employment and the incidents in 1986, 1988 and 1991 to her conditions (T21, T22, T23, T26, T27, T28, T29, T30, T31, T32, T33, T34, T35, T36, T37, T38, T39).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent’s case is as follows:·both massage and acupuncture are “medical treatment” for the purposes of section 16 of the SRC Act;·the evidence suggests that the massage that Ms Heales receives is not given “in relation to” her compensable injury;·there is no evidence that would allow a finding that acupuncture is done “in relation to” Ms Heales’s compensable injury;·even if these forms of medical treatment are provided “in relation to” her compensable injury, neither massage nor acupuncture is treatment that it is reasonable for Ms Heales to obtain in her circumstances; and therefore·Comcare is no longer liable to pay for massage or acupuncture for Ms Heales under section 16 of the SRC Act.CONSIDERATION As noted above, the issues to be resolved in this matter concern whether Comcare is liable to pay for massage and acupuncture under section 16 of the SRC Act: that requires for each of those forms of medical treatment a determination of whether each is medical treatment, whether each is provided “in relation to” Ms Heales’s compensable injury, and if so, whether it is reasonable for her to obtain these forms of treatment in the circumstances.Some preliminary issuesMs Heales’s credit Mr Ternes suggested that although Ms Heales was in general an honest and credible witness, she had fallen short of that standard in three areas: ·first, her insistence in oral evidence that her knee replacements had brought about or were associated with a worsening of her lymphoedema in the area around the knees was not supported by the documentary medical evidence; ·second, there was an inconsistency regarding the continuing disability resulting from her original injury – as her knee replacements were functioning well, there was a real question whether there was a continuing disability from the knees or whether any continuing pain and stiffness came from other conditions, and Ms Heales’s insistence on a continuing injury was again not supported by the medical evidence, in particular that of Dr Stubbs; and·Ms Heales’s account of her consultation with Dr Stubbs is very much at odds with his account; she said it took very little time and was anything but thorough, but Dr Stubbs said it was a detailed and careful examination that gathered all the information he needed. I am not persuaded that I need to discount Ms Heales’s evidence on the basis of Mr Ternes’s arguments. Ms Heales appeared to me to be a witness of truth; she did her best to provide the tribunal with evidence that she could stand by and on a number of occasions gave careful thought in considering her response to Mr Ternes’s questions. Her statement that the lymphoedematic swelling around her knees was greater after the knee replacements than beforehand was given as her subjective impression, and the weight I give to it is in accordance with that status. With respect to the continuing knee injury, I note that by the consent decision of 17 December 2001 (T41) Comcare accepted continuing liability for Ms Heales’s knee condition. I cannot see that it is open to Comcare to cast doubt on the provenance of the knee injury for the limited purpose of constraining payments under section 16 while liability is continuing under section 14 by virtue of the tribunal’s decision. As for the consultation with Dr Stubbs, it is very common that applicants find a medico-legal examination –frequently carried out in a very impersonal manner – to be cursory and unsympathetic, and Ms Heales’s comments on the examination convey to me no more than that.The Clinical Framework