Heales and Comcare (Compensation) - [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

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 Act). Ms Heales has subsequently undergone knee replacements for both the injured knee (the right knee) and for the left knee. By later decisions, including a consent decision by this tribunal, Comcare accepted liability for a wider range of diagnosed conditions. In 2016 Comcare took two decisions, the first denying liability for continued massage treatment and the second for continued acupuncture treatment. In each case Ms Heales sought review, and in each case the decision was affirmed by Comcare in a reconsideration determination. Ms Heales applied to this tribunal for review of the two reconsideration determinations.
The tribunal held a hearing on 10 and 11 July 2018. Ms Heales appeared in person, representing herself, and gave evidence. Mr Ray Ternes of Counsel represented Comcare. Three expert witnesses gave evidence, all by telephone: Dr Stephen Moulding, a general practitioner; Mr Ian McDonald, a massage therapist; and Dr Geoffrey Stubbs, an orthopaedic surgeon. By way of documentary evidence, the tribunal had before it:
·the documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975 in respect of each of the decisions (the “T-documents”);
·a bundle of documents filed by Ms Heales on 12 June 2018, including doctors’ reports, articles about sleep, articles about acupuncture, and photographs (exhibit A1);
·a statement by Ms Heales dated 13 February 2017, with attachments (A2);
·a further bundle of documents comprising Ms Heales’s response to one of the reports from Dr Stubbs and a statement of facts issues and contentions from when the matter was heard by this tribunal in 2001, together with attachments (A3);
·a Comcare claims summary listing all the payments made in respect of Ms Heales’s compensation case (exhibit R1);
·a report by Dr Minjae Lah of Wesley Radiation Oncology, dated 10 April 2006 (R2);
·a report by Dr Stubbs dated 27 March 2017 (R3) (with a briefing letter from Comcare dated 9 March), a supplementary report dated 16 May 2017 (R4) (with a briefing letter dated 5 May) and a further supplementary report dated 1 July 2018 (R5); some of these reports have scholarly articles attached;
·patient records obtained under summons from Mr Feng Yuan, an acupuncturist and Mr McDonald, therapeutic masseur, covering various periods (R6, R7, R8).
At the hearing a number of issues arose relating to the Clinical Framework for the Delivery of Health Services (the Clinical Framework), a document adopted by compensation schemes around Australia, including Comcare. Comcare was unable to provide complete responses to some of those questions at the time, and following the hearing undertook to prepare responses to written questions put in writing. I provided a list of questions and Comcare provided responses on 10 August 2018; these are identified as exhibit R9. Ms Heales provided a response on the same day (exhibit A5).
Most of the T-documents are common to both matters and have been provided under case number matter 2016/5161, which relates to massage; those strictly related to acupuncture (matter number 2016/6490) are few in number. In what follows, references are to T-documents in the massage matter with only those from the acupuncture matter separately identified by matter number.
ISSUES
The issues before the tribunal are, in respect of each of massage treatment and acupuncture
·whether that treatment is medical treatment;
·whether it was provided in relation to Ms Heales’s accepted injury; and
·whether it was reasonable for Ms Heales to obtain in the circumstances.
LEGISLATIVE CONTEXT
Subsection 16(1) of the SRC Act provides as follows:
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.
Subsection 4(1) contains a definition of “medical treatment”. It includes (relevantly) treatment by or under the supervision of, or obtained at the direction of, a doctor or a legally qualified medical practitioner; or “therapeutic treatment” by (relevantly) a masseur registered under State or Territory law. Section 4(1) also contains a definition of “therapeutic treatment”, to include treatment given for the purpose of alleviating an injury.
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).
Ms Heales’s left knee gave her increasing problems as the underlying osteoarthritis worsened, and on 11 February 1999 Comcare evidently made a determination to deny liability for the left knee condition (this determination is not included in the documentation, but is referred to in a reconsideration determination dated 22 November 2001 (T40)). In the course of 2001 Ms Heales had a total knee replacement of the left knee. In the November reconsideration determination, Comcare on its own motion decided to vary the previous determination and accept liability for “aggravation of osteoarthritis of the left knee” on and from 15 November 1996. The reasons for decision provided for that reconsideration determination also make it plain that Ms Heales had lodged other claims at various points in this series of events. But the liability issue was clarified by a consent decision before this tribunal dated 17 December 2001 (T41), in which Comcare:
·accepted continuing liability for the original right knee injury;
·accepted that Ms Heales had a 40% permanent impairment (to the lower limbs and to mental health) for which Comcare was to pay compensation;
·denied liability for any permanent impairment to the spine or the circulatory system;
·accepted liability for a quantum for non-economic loss; and
·noted the previous acceptance of liability in respect of the left knee.
In a report dated 23 March 2004 (T42) Dr Leon Le Leu, an occupational physician, advised that Ms Heales met the criteria for total and permanent incapacity. Ms Heales retired later that same year.
Medical evidence – acupuncture and massage
Ms Heales has utilised therapeutic massage and acupuncture over an extended period. A treatment plan drawn up by her general practitioner, Dr John Sanderson, dated 13 July 2006, identified therapeutic treatment consisting of chiropractic and massage, with the expected outcome given as “slow deterioration” and “minimised by therapies”. Massage, twice weekly, is described as providing pain relief, mobility and flexibility (T43). Similar plans date from 15 June 2007 (T44) and 21 September 2007 (T45). Orthotics appear as an added therapy, and the benefits of massage are identified as “improves pain and swelling” and “assists mobility, flexibility”. A note to Comcare (T46) from Dr Sanderson dated 5 June 2009 notes that Ms Heales had undertaken a trial of acupuncture with beneficial results and he suggested that she continue with weekly sessions. Later treatment plans include acupuncture, along with massage, chiropractic and orthotics (T47, Dr Sanderson, 7 August 2009, T48, Dr Moulding, 15 July 2010, T49, Dr Moulding, 12 August 2011, T50, Dr Moulding, 27 February 2012). In the later plans Dr Moulding notes that massage stopped cramps and spasms and helped flexibility; and that acupuncture provided pain relief for the back and legs.
From 2012 Comcare began to question the continued application of these therapies. A letter to Dr Moulding (T51) from a Comcare delegate, dated 20 August 2012, asked for his advice on which of Ms Heales’s conditions each of the therapies was treating; a similar note (T53), dated 2 June 2014, sought information from Dr Moulding regarding the diagnosis of Ms Heales’s condition, the relationship of that condition to the initial incident linked to the compensable condition, a clinical explanation of the treatment regime, the therapeutic benefit of treatment, the improvement in pathology up to that time, and an account of how any further improvement might be assessed.
On 10 February 2016 (T55) a Comcare delegate granted approval for massage therapy to 4 February 2016 and stated that therapy beyond that date could only be approved if Dr Moulding provided a report addressing:
1.the condition being treated;
2.the type of treatment recommended, the clinical and functional goals of treatment and the evidence in support;
3.the effectiveness of treatment to date, including how improvements are measured and how sustained they are;
4.the date by which treatment goals will be achieved, and when and how Ms Heales might be transitioned to “independent self-management”;
5.any biopsychosocial factors impacting on treatment and any strategies to deal with them.
Dr Moulding referred these issues to Mr McDonald (T56), who provided a report to Comcare on 15 March 2016 (T57); the report answered most of the questions but sought clarification of the second question without answering it. Mr McDonald said, in summary, that:
·     in response to question 1, massage was part of a treatment plan for a chronic condition from which Ms Heales was not expected to recover; her general practitioner approved massage as part of her treatment; massage will continue until the treating doctor and patient consider it is no longer ameliorating her condition;
·     in response to question 3, massage is very successful in allowing Ms Heales to be able to function with little pain and contributes to her being able to self-manage her condition; the benefits last several days, and twice-weekly massages are what Ms Heales needs to keep functioning;
·     in response to question 4, treatment would only stop if the treating doctor considers it ineffective; and
·     Ms Heales is well-motivated to help herself through exercise and use of a pool; there are no treatment barriers to overcome.
In a determination dated 21 March 2016 (T58), the Comcare delegate noted that a report had been received from Mr McDonald but that Dr Moulding had not provided medical justification for continued massage. The delegate decided that compensation was no longer payable for massage from that date. Ms Heales sought reconsideration (T60) and on 3 August 2018 the delegate affirmed the initial determination in the decision (T63) now before the tribunal in matter number 2016/5161.
A similar course of events was followed in respect of acupuncture. Ms Heales’s acupuncturist, Mr Feng Yuan, wrote to the Comcare delegate on 26 May 2016 (2016/6490, T3), in response to a letter of 13 May 2016 which is not in evidence, responding to four questions, which it appears related to the condition being treated, the basis for treatment with acupuncture, the effectiveness of the treatment, and the basis for the frequency of treatment. Mr Yuan said, in summary, that:
·     the condition being treated was chronic pain arising from the knees and legs bilaterally, associated lumbar musculoskeletal problems and impaired mobility;
·     acupuncture had been requested by successive general practitioners; it was carried out with the aim of reducing pain and maintaining mobility;
·     the effectiveness of treatment was demonstrated by Ms Heales’s functionality and the control of chronic pain without medication; and
·     weekly sessions were best in order to “break the pain cycle” and maintain mobility.
On 15 August 2016 Comcare made a determination (2016/6490, T4) that compensation was no longer payable to Ms Heales for acupuncture from that date. Ms Heales again sought reconsideration, and a Review Officer affirmed the decision on 12 October 2016 (2016/6490, T6)
The evidence of Ms Heales
Ms Heales recounted the history of how she injured herself in 1988, and the successive medical treatments that followed, leading up to the total knee replacements in 1998 and 2001. Ms Heales described herself as someone who was used to a busy lifestyle, with family responsibilities and considerable demands on her as a school principal. Following the knee replacements she was quite severely affected by pain. She returned to work and tried hard to return to her previous duties, but found it increasingly difficult. Her knees were a problem but also her back, general flexibility and balance gave her problems. After her retirement in 2004 she found that her knee replacements were working well but she was failed by the body holding them. She found herself unable to do things and discovered that the stresses and strains of compensating for her knees had effects on the rest of her system.
Ms Heales described her state in the years following knee replacement and up to the present: she said that she finds it very hard to sleep, as heat and pain radiate out from her back, waking her frequently. She wakes up in pain and the first 30 minutes of the day are hard, until she gets moving. She takes strong analgesia (Panadeine forte). Because of the chronic pain and medication her thinking is slower and her ability to multitask is affected. Ms Heales said that massage eases tightness in her legs, helps her to function, resolves any problems that have arisen (e.g. from misuse of a leg), reduces stress and relaxes her. Acupuncture improves her sleeping pattern, assists with pain and addresses problems such as stresses elsewhere in her body.

In cross-examination Mr Ternes explored in some detail the association between Ms Heales’s lymphoedema and her knee replacements. Ms Heales said that she has pain – a hot pain - around her knee, especially on the right; that it worsens with use of the knee; that she has worse lymphoedema around her knees since the knee replacements. Mr Ternes noted that the association between lymphoedema and the knees is not revealed by the medical records, but Ms Heales insisted that looking back, it is clear to her that the greater swelling she now has around her knees was not there earlier.
Under questioning, Ms Heales described further the benefit that she believes she obtains from massage and lymphoedema. The massage varies in the part of the body that is the focus of a session, but it extends to the lower and mid back, the shoulders, hips, legs and tendons, and sometimes the arms, especially for lymphoedema in the arms. Most commonly her massages are for the back, shoulders, around the neck and the legs. Massage lightens her body, releases the knees from pressure, making walking easier and eases pain.
Ms Heales said that acupuncture in recent years (she has changed practitioners) has involved insertion of fine needles in the crown of the head, the knees, the sides of the hands and the webbing near the thumbs, parts of the back and the ankles; sometimes the wrists and elbows are involved. Acupuncture delivers pain reduction, so that she is less aware of the pain, although it is still present. She is much more relaxed and sleeps better.
Mr Ternes also established that Ms Heales is a self-funded retiree; that she and her husband have from time to time paid to go on cruises (once or twice a year up to about 2016, not since); and that after Comcare stopped paying for massage and acupuncture she continued massage at her own expense but stopped acupuncture, based on what she saw as the comparative benefits and costs from the treatments. He also established that Ms Heales takes Panadeine forte very regularly, twice and sometimes three times daily; and that she has a regular exercise and stretching regimen that complements the massage; in summer she also does aquarobics at home.
Medical evidence
Mr McDonald
Mr McDonald said that his practice provided massage treatment to Ms Heales in relation to her knees, especially in relation to the sequelae of the initial injury, treating her pain and her movement limitations, also involving her legs and back (the treatment was mainly provided by other treaters, not Mr McDonald personally). The practice had been providing this treatment for some time, and he measured the benefit of the treatment by noting her improvement between treatments and over time. Ms Heales suffered from a chronic condition, and there was no expectation that she would ever re-enter the workforce: the intention, rather, was to enable her to continue functioning. The treatment was agreed between him and her GP, and they consulted over progress and results. There was no curative expectation, but if treatment were to stop there would be deterioration; massage allowed Ms Heales to maintain independence and social interactions by reducing her pain, improving mobility, strengthening her muscles and making them more flexible, contributing to a better psychological state and allowing her to live a reasonably normal life, as close as possible to that of an uninjured person.
Under cross-examination, Mr McDonald said that:
·Ms Heales received two kinds of massage, that specifically intended to treat lymphoedema, involving massaging excess lymphatic fluid out of the affected tissues; and general remedial massage;
·lymphoedema massage was targeted in particular at Ms Heales’s legs, which is where the condition mostly manifested in her case; remedial massage for her involved the knees, ankles, lower back, hips, shoulders and neck - most of the body, in effect;
·only 2% of the massage was for lymphoedema; the remainder was remedial massage;
·of the remedial massage perhaps 30-35% related directly to her knees; but the remaining remedial massage was in part required because of the biomechanics of the use of her affected legs and the consequent effects on the upper body;
·in the past two years Ms Heales had moved house and now had a swimming pool; these changes may have had some effect on her upper body;
·Ms Heales also received some instruction and guidance from the practice regarding exercise (such as aquarobics); this is important as deterioration can occur quickly in the absence of exercise;
·the success of treatment is judged on material such as Ms Heales’s verbal history, her condition on examination (the level of fluid in her tissues, as estimated by touch) and her range of motion; any measurements taken would be recorded, but such measurements are the exception – only unusual developments would be recorded.
Mr Ternes questioned whether Mr McDonald’s treatments fell readily within the guidance provided by the Clinical Framework. He asked Mr McDonald if he was familiar with, and used, any index of condition, such as the Oswestry Disability Index. Mr McDonald said he was broadly familiar with such measures but did not apply them, although they might be used at the outset of treatment. He acknowledged that in the absence of any objective measure he was unable to demonstrate the effectiveness of his treatment to a third party. Mr Ternes noted that Dr Stubbs would in his evidence describe the pain relief from massage as a placebo effect; Mr McDonald did not agree, noting the scholarly support for massage therapy such as one of the articles attached by Ms Heales to her witness statement (exhibit A2 – 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).
Mr McDonald said that the effects of massage are short, lasting for two to three days in the short-term, four to five days in the longer term. In the absence of the treatment, however, he would expect a deterioration in functioning. Part of this would come from the lymphoedema, as swelling in the legs caused wider effects in the rest of the body, with the loss of capacity to undertake a wider range of activities. Mr McDonald explained the effect of remedial massage on the muscles in terms of allowing the muscle fibres to relax fully. He acknowledged that the effect is similar to that of stretching, but noted that a third party such as a masseur can achieve better results, in that stretching relies on the operation of antagonistic muscles which might themselves be compromised.
Mr Ternes also queried whether massage can contribute to the empowerment of a patient. Mr McDonald suggested that it did, through pain reduction and improving range of motion: that allows a person to take more control and to undertake a wider range of activities. It is not only massage that promotes this level of functionality – consultations with the doctor, perhaps counselling, may also contribute. The current rate of treatment is not automatic, but results from the GP’s recommendations. Mr McDonald acknowledged that limited measures of effectiveness were made, but said that a record was kept of Ms Heales’s capacity to undertake various forms of activity. No attempt was made to treat the compensable and non-compensable aspects of her condition separately – she was treated holistically.
Dr Moulding
Dr Moulding said that Ms Heales’s diagnosis was of ongoing problems from her bilateral knee injury, including from the bilateral knee replacement; a back injury; and a psychological component from the stresses of coping with long term injury, pain and swelling. The options available for treatment were limited, comprising analgesia, including NSAIDs, which she cannot tolerate, and forms of relief such as massage, physiotherapy and acupuncture. Dr Moulding noted that the treatment of chronic conditions was difficult, and that generally the role of the medical practitioner in such circumstances was to look for treatments that provided relief from symptoms and promoted functionality. He noted that while the disability continued – and there was no prospect of it not doing so – then some form of treatment would be likely to be needed, and analgesia through medication was only available to Ms Heales in limited ways. In his view both massage and acupuncture provided symptomatic relief to Ms Heales, and that was a significant benefit and made them fall within the scope of reasonable medical treatment.
Under cross-examination Dr Moulding defended massage as a treatment on the basis that it reduced swelling, muscle weakness and stiffness, increased blood flow and promoted mobility. While he acknowledged that other forms of therapy – an exercise bike or tai chi – might achieve similar outcomes, he also believed that massage was a useful therapy and one that he knew Ms Heales could sustain. He had not tested whether a reduced frequency of massage treatment might yield the same level of benefit because he feared that there would be deterioration of her condition at the lower frequency of treatment. His recommendations were not without an evidence basis, however, in that he made his recommendations in part on Ms Heales’s account of the effectiveness of the therapy.
With regard to acupuncture, Dr Moulding said that he was not an expert but had travelled to China and believed that acupuncture had benefits for pain relief. The needles placed in different parts of the anatomy were not necessarily treating that part of the body.
Dr Stubbs
Dr Stubbs is an orthopaedic surgeon who retired from surgery in 2010, having practised since 1972. He submitted a total of three reports, dated 27 March 2017 (exhibit R3, with briefing letter of 9 March 2017), 16 May 2017 (exhibit R4, with briefing letter of 5 May) and 1 July 2018 (exhibit R5, with briefing letter of 21 June).
It appears that in successive reports, and in his oral evidence, Dr Stubbs became more emphatic in his dismissal of massage and acupuncture as forms of treatment. In his first report Dr Stubbs said that the evidence suggested that massage was ineffective as treatment but that acupuncture was better than no treatment and that given Ms Heales’s mental commitment to the treatment she was getting, alternative forms of treatment were unlikely to be any more successful. One of the effective alternatives, namely NSAIDs, was unavailable to her.
In the letter of 5 May 2017 seeking a supplementary report Comcare asked Dr Stubbs to address aspects of the Clinical Framework, in particular the principles relating to the measurement of the effectiveness of treatment and use of scientific evidence in treatment, and the principle relating to empowerment of the patient and avoiding dependency on treatment. In his second report Dr Stubbs reinforced his earlier conclusions about the effectiveness of massage and acupuncture; and he noted that although treatment should avoid reinforcing illness behaviour, in Ms Heales’s case the only realistic aim was to minimise illness behaviour, not eliminate it. Dr Stubbs thought that Ms Heales had indeed become dependent on acupuncture and massage.
In seeking a third report Comcare put a further series of questions to Dr Stubbs, not all of which went to issues pressed at the hearing. The questions went to the nature of Ms Heales’s current symptoms; Dr Stubbs’s views on the placebo effect; whether Ms Heales continues to suffer from a compensable condition; the diagnosis and nature of Ms Heales’s lymphoedema; what Dr Stubbs’s opinion might be on the records of acupuncture and massage obtained under summons; and more detailed consideration of the application of NSAIDs and alternatives such as paracetamol in Ms Heales’s condition. In his third report, Dr Stubbs commented (relevantly) on the lymphoedema, suggesting it took the form of Meige’s disease, which has a genetic origin and has a typical onset at puberty. He also took the view that NSAIDs were not indicated for Ms Heales because she does not have an inflammatory arthritis, and paracetamol would be a better form of treatment. He also provided comment on the placebo effect, and how treatment delivered with confidence and with what he described as “razzmatazz’ (which I take to mean a certain amount of dressing up to make it appear important) can have marked effects on symptoms even if there is no measurable physiological effect.
In oral evidence Dr Stubbs described his examination of Ms Heales. He noted that her knee replacements were in excellent condition even after about 20 years; they were stable, capable of full extension, and showed a good range of motion. He doubted that the knee replacements would be contributing to any pain suffered by Ms Heales. Dr Stubbs also gave evidence that he doubted whether Ms Heales’s injury derived from her 1988 accident, and this repeated conclusions he expressed in his third report. I note, however, that by a consent decision of this tribunal dated 17 December 2001 (T41) Comcare accepted liability for the 1988 injury. I cannot see that I can take into account at this stage evidence contrary to the import of that decision. Mr Ternes also questioned Dr Stubbs about the amount of time involved in his examination of Ms Heales and later used those answers to cast doubt on Ms Heales’s credit. For reasons advanced below, I have given no weight to those arguments.
Mr Ternes asked Dr Stubbs a number of questions about massage. In response, Dr Stubbs suggested that massage provided no significant medical benefit; many people enjoyed massage, but well conducted studies suggested that there was no benefit in terms of activities of daily living, return to work or use of medication. Massage could not strengthen muscles, as that could only be done by active contraction – exercise or weights. Massage could not relax muscles either – the massage used after a sports game, for example, was there to massage away accumulated lactic acid after exercise. Scholarly articles supporting the use of massage appeared to show that massage was better than no treatment; but many things got better results than no treatment. A trial of such a thesis was an ideal situation to elicit a placebo response; there could also be confirmation bias at work. Massage for lymphoedema was a different matter – that is a specialised form of massage, like a “milking” process by which the lymphatic flow is improved, moving the excess lymph from the lower limbs by massaging it from the feet to the top of the thigh.
Dr Stubbs was equally if not more critical of acupuncture. He said that comparative studies showed that acupuncture techniques involving the use of fine needles in standard acupuncture points and in other than the standard points yielded the same improvements in patients. This showed that it was not the treatment process that had the effect but the belief of the patients in the outcome. He suggested that alternative treatments, such as electrical stimulation, or laser stimulation, could have the same effect. Mr Ternes asked him why the cessation of acupuncture might affect Ms Heales’s sleep; he noted in response that the removal of any form of treatment might disturb a patient’s sleep.
Dr Stubbs suggested that alternatives to treatments such as massage or acupuncture included cognitive behaviour therapy, which can provide a patient with coping strategies for pain or a disability; and exercise, which can provide considerable benefit, including through the release of endorphins.
Under cross-examination, Dr Stubbs said that:
·any form of diversion can be therapeutic in the treatment of chronic pain – for example people who watch comedy clips use less pain medication;
·the best treatment for the build-up of fluids in Ms Heales’s legs, and the attendant problems in mobility, would in his view be the use of support stockings, which he had used himself following a broken leg a few years ago; aquarobics might also be useful;
·support stockings can be difficult to use and are hot in summer but they are effective and cheap, operating by squeezing the lymphatic fluid from the affected tissues and preventing reaccumulation;
·neither massage nor acupuncture has any physiological effect on injured tissues; the benefits are entirely mental;
·this mental benefit comes from the expectation that a treatment will be effective; that itself triggers the release of brain chemicals, so that the patient feels better; this is a very useful tool in medicine; and
·NSAIDs are not indicated for Ms Heales’s problems, as there is no inflammation involved; for normal osteoarthritis paracetamol is the most effective analgesic.
THE ARGUMENTS OF THE PARTIES
Ms Heales’s argument, in essence is that:
·she has a chronic disability which has arisen from her original compensable injury in 1988;
·massage and acupuncture have been identified after many other treatments were trialled as the treatments that work best for her and optimise her functionality;
·these treatments are in accordance with the treatment plans of her doctors and deliver benefits, whether physical or mental;
·no cure is available for her condition, and the best that can be done is to maintain function;
·she cannot be free of treatment, and therefore could never be fully empowered, but she complements the massage and acupuncture with exercise and aquarobics;
·alternatives are either more problematic (e.g. she cannot get support stockings on and off) or more expensive (e.g. cognitive behaviour therapy); and therefore
·it is reasonable in her circumstances for Comcare to continue paying for massage and acupuncture under section 16 of the SRC Act.
Mr Ternes urged me to assess the question of continued use of massage and acupuncture taking into account the following:
·the benefits from the treatment;
·cost-benefit analysis of the current treatment, including who pays for the treatment;
·alternative treatments, their efficacy and cost;
·the history of treatment to this point and its results;
·the application of the Clinical Framework; and
·the opinions of medical experts.
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 issues
Ms 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
The Clinical Framework for the Delivery of Health Services (the Clinical Framework) has been drawn on frequently in tribunal decisions, although there is apparently no Federal Court comment on its status. In a number of decisions the tribunal has elected to call on the Clinical Framework on the basis that, as a document universally adopted by Australian workers’ compensation schemes, it is useful in determining whether various forms of treatment are reasonable in the circumstances of each case. But the Clinical Framework has been developed to guide doctors in treating patients with compensable conditions, which is a purpose distinct from decision-making under section 16 of the SRC Act, and it appeared to me to be worth seeking some clarification of the document’s status, how Comcare saw its use in decision-making, and how widely it had been promulgated in the medical and allied health professions. Accordingly I put questions to the respondent at the hearing, and afterwards provided five questions in writing, to which Comcare provided written responses. The questions, and the essence of the replies, are as follows:
Did Comcare formally adopt the Clinical Framework, and if so, when?
Comcare formally endorsed the Clinical Framework in 2012 at the time of the release of the current version of the publication. … The Clinical Framework is supported by all state and territory workers’ compensation schemes, and various peak bodies and associations.
What were the terms of its adoption?
Comcare has endorsed and adopted the Clinical Framework in policies and procedures regarding allied health treatment, as the standard of best clinical practice, with the aim that all healthcare professionals providing services to injured employees will also adopt the principles of the Clinical Framework. Comcare has also adopted the Clinical Framework to assist claims managers assess the reasonableness of treatment, and to work with health care professionals in ensuring evidence-based, clinically-justifiable treatments are provided to injured employees.
The Framework is described in the covering note signed by Claire Amies [Head of the Health Services Group of the Victorian Transport Accident Commission and Worksafe Victoria] as a “set of guiding principles for the delivery of health services”. Is it accurate to regard the Framework as a “best practice” manual for the medical and allied health professionals in treating compensable patients?
Yes, it is accurate to regard the Clinical Framework as the ‘best practice’ guide for medical and allied health professionals in treating compensable patients.
To what extent and how is the framework used by Comcare in decision-making under the SRC Act?
The Clinical Framework is a tool which claims managers take into account when making assessments on the reasonableness or otherwise, of medical treatment. The Clinical Framework does not displace the statutory test of whether medical treatment is reasonable under section 16 of the SRC Act, nor does Comcare instruct its claims managers to regard the Clinical Framework as having displaced the statutory test. Claims managers are encouraged to refer to the Clinical Framework’s principles to assist with assessing the reasonableness of medical treatment, because the Clinical Framework promotes evidence-based clinical practice, and the use of objective measures in assessing the treatment of compensable injuries. In Evans and Comcare [2016] AATA 827, the Tribunal agreed with Comcare’s submission that ‘the Clinical Framework is an appropriate benchmark by which the objective reasonableness of medical treatment can be measured’.
What efforts have been made to promulgate the Framework among the medical and allied health professions?
Australian peak bodies and associations, including the Australian Physiotherapy Association and Australian Psychological Society, had significant input to the development of the Clinical Framework, and endorse the Clinical Framework. Comcare understands that these professional associations also circulate and encourage the application of its use among its members. [Further examples given, especially its appearance on various websites, including Comcare’s, and in various forms.]
The Clinical Framework sets out five principles to guide the provision of medical services to patients with a compensable injury:
a)Measure and demonstrate the effectiveness of treatment
b)Adopt a biopsychosocial approach
c)Empower the injured person to manage their injury
d)Implement gaols focused on optimising function, participation and return to work
e)Base treatment on best available research evidence.
The Clinical Framework goes on to elaborate on each of the principles and its application.
It is immediately apparent that care needs to be applied in using the Clinical Framework to help decide the reasonableness of medical treatment under section 16, for the following reasons:
a)the Clinical Framework is not formal policy, and therefore lacks the weight attributed to policy by case law - see Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 24 ALR 577; nor does it set out to provide an interpretation of section 16 of the SRC Act, having been developed in Victoria and later adopted by workers’ compensation bodies around Australia, including Comcare;
b)it was developed for a particular purpose (to provide guidance to doctors and allied health professionals), and its use to decide what is reasonable is an extrapolation from its primary purpose;
c)one unmistakable element in the Clinical Framework is the strong guidance given to health professionals in order to constrain treatment, prevent over-servicing and therefore limit costs; this is entirely understandable in an insurer, but the application of the same considerations in deciding whether particular treatment is reasonable needs careful thought;
d)in any case it is to be expected that some forms of treatment will fall short of best practice but nevertheless remain reasonable;
e)there is an element of unfairness in applying the criteria in the Clinical Framework (if that is what they are) when doctors and other professionals may not have been alerted to these expectations (or only imperfectly so alerted); and
f)not all the principles in the Clinical Framework relate directly to the choice of treatment modality, which is typically the focus of an enquiry under section 16; thus the second principle - “adoption of a biopsychosocial approach” - .appears to relate to how a patient is treated, rather than what treatment choice might be made as a result.
Nevertheless, it is clear that the Clinical Framework raises issues that will usually be relevant and helpful in assessing whether a particular treatment modality is reasonable, for example it is plain that effective treatment is more likely to be reasonable than ineffective treatment (the first principle), and scientifically well-founded treatment would generally be preferred to treatment that had no scientific foundation whatsoever (the fifth principle). The Clinical Framework has been applied in a number of cases by the tribunal, with endorsement of its appropriateness, in some cases at senior level (see for example Comcare and Alamos [2014] AATA 629 (Alamos), Evans and Comcare [2016] AATA 827). Nevertheless, the Clinical Framework must be applied carefully, for the reasons advanced above, to ensure that the statutory test is not lost sight of.
Are massage and acupuncture medical treatment?
It is common ground that both massage and acupuncture are “medical treatment” for the purposes of section 16 of the SRC Act. That flows reasonably straightforwardly in any case from the definitions in section 4 of the SRC Act, where “medical treatment” is defined to include therapeutic treatment obtained at the direction of a doctor, or therapeutic treatment by or under the supervision of a registered masseur; and “therapeutic treatment” is in turn defined to include treatment given to alleviate an injury. Successive cases have accepted massage as medical treatment where provided as a palliative for the relief of pain or for prevention of a condition worsening: see for example Bashar v Comcare [2002] FCA 837; Lonsdale and Comcare [2004] AATA 555. A similar conclusion might be reached about acupuncture provided that it is clear that the acupuncture is provided for therapeutic purposes (see the remarks of Finn J in Comcare v Watson 73 FCR 273 at 276). I note that in Napier and Comcare [2017] AATA 1452 the tribunal found acupuncture not to be reasonable treatment for the purposes of section 16 of the SRC Act but did not reach a clear conclusion whether it constituted “medical treatment” under that section.
Were massage and acupuncture “obtained in relation to” Ms Heales’s compensable injury?
The phrase “in relation to” appears in a wide variety of statutory contexts. The approach of the courts, in general terms, has been to recognise that the phrase is a broad one with a general application that can cover a multitude of different kinds and distances of connection. In Kennon v Spry (2008) 238 CLR 366 Kiefel J noted that “The expression ‘in relation to’ is of wide and general import and should not be read down in the absence of some compelling reason for doing so” (at 440), further noting that the nexus required was dependent on statutory context. In O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 Dawson J commented (at 367):
The words ‘in relation to’, read out of context, are wide enough to cover every conceivable connection. But those words should not be read out of context… Where jurisdiction is dependent upon a relation with some matter or thing, something more than a coincidental or mere connection – something in the nature of a relevant relationship – is necessary.
In the same case McHugh J noted that “the prepositional phrase ‘in relation to’ is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters” (at 376).
A number of tribunal cases deal with the phrase in the context of section 16 of the SRC Act. In Pratt and Comcare [2004] AATA 1281 the tribunal determined that a stent procedure was sufficiently “in relation to” the applicant’s compensable myocardial infarction, and not only in relation to the applicant’s underlying heart condition (at [25]):
The phrase ‘in relation to’ in section 16 needs to be looked at in the context of being part of beneficial legislation and within a section which provides generally for the payment of medical expenses under the compensation scheme set up by the legislation...we should interpret the phrase widely unless the context requires it to be read down. Comcare contends that it should be interpreted as meaning that the medical treatment for which compensation is payable should be restricted to treatment ‘of’ the injury. On this argument the stenting procedure was treatment of the underlying condition and not treatment of the injury. We do not accept this argument. Had Parliament intended to restrict compensation for treatment in this way it could simply have said so by using the far more restrictive preposition ‘of’ rather than ‘obtained in relation to’.
In Howes v Comcare [2016] FCA 1521 the Federal Court (Griffith J) noted that when there was conflicting medical evidence regarding the provision of treatment, it was for the tribunal to weigh the evidence, decide which evidence it preferred and draw conclusions accordingly.
In the present matter, the question is whether massage and acupuncture were obtained “in relation” to Ms Heales’s compensable condition. Mr Ternes argued that it is not open to me to find that acupuncture was obtained in relation to Ms Heales’s compensable condition because so little information on the point was available in the evidence, and what was available had not been tested in cross-examination. Dr Stubbs made the point that the theory of acupuncture involves the use of fine needles in sites remote from that being treated, and so the positioning of the needles is not a reliable guide to the part of the body at which treatment is aimed. In Ms Heales’s case, needles are inserted in the head, the knees, the sides of the hands and the webbing near the thumbs, parts of the back and the ankles and sometimes the wrists and elbows.
What I have from Ms Heales’s acupuncturist, Mr Feng Yuan, is a letter to Comcare dated 26 May 2016 (2016/6490, T3) and patient records returned under summons. In the letter Mr Yuan notes that:
·Ms Heales suffers from chronic pain arising from musculoskeletal problems affecting the knees and legs bilaterally and the lumbar region and from associated impaired mobility;
·acupuncture therapy was requested by Dr Moulding and his predecessor Dr Sanderson;
·Ms Heales is unable to take NSAIDs;
·the aims of acupuncture treatment of Ms Heales are to reduce pain and improve mobility; this is measured by capacity to undertake activities of daily living such as driving, walking unaided and household activities, as well as management of chronic pain without medication; and
·weekly sessions are best “to break the pain cycle”.
Mr Yuan’s clinical notes are not hugely informative, but they contain frequent references to treatment of the knees, legs and ankles. The notes frequently do not specify that the treatment is aimed at any particular part of the body (for example “acupuncture therapy” is sometimes the entirety of the note of a session), but where a part of the body is specified, it is invariably part of the lower limbs. Drs Sanderson and Moulding each prepared treatment plans for Ms Heales and over the period 2009-2016 their plans specify acupuncture for “pain relief lower back (Dr Sanderson, 7 August 2009, T47) and “:pain relief for back and legs” (Dr Moulding, 15 July 2010, T48;12 August 2011, T49; 27 February 2012, T50). A Comcare delegate wrote to Dr Moulding on 20 August 2012 and asked whether the acupuncture and other treatments were aimed at Ms Heales’s back or her knees (T51.1); Dr Moulding replied that acupuncture treated both (T51, 22 August 2012). Comcare wrote again to Dr Moulding on 2 June 2014 (T53.1) seeking an updated clinical history and attaching a list of questions, including a question seeking “a clinical explanation to support your ongoing recommendation of ongoing … acupuncture”, noting the number of sessions already undertaken; Dr Moulding replied on 2 July 2014 (T53) reporting that the clinical benefits of acupuncture were to reduce pain.
It was Dr Stubbs’s evidence that acupuncture is effectively a placebo treatment: it makes patients feel better but does not achieve any improvement in the underlying condition or indeed produce any measurable physiological effect. On his evidence, it would appear reasonable to regard any acupuncture process as a treatment “in relation to” Ms Heales’s compensable condition, in that in a placebo process it would not matter where the needles were inserted.
If I were to accept Dr Stubbs’s evidence, then, acupuncture would be obtained in relation to Ms Heales’s condition. If I do not, I am left with limited evidence from Dr Moulding and Mr Yuan that establishes a link, albeit a somewhat sketchy and untested link, between acupuncture and Ms Heales’s knees, legs and ankles. That evidence is essentially uncontested but for Dr Stubbs’s evidence that acupuncture is always a placebo treatment. Section 16 does not require the nexus between the treatment and the condition to be tight and immediate. On the balance of probabilities, I am satisfied that the connection between the acupuncture and the compensable condition was sufficient to meet the test set in the statute. I find that acupuncture was obtained in relation to Ms Heales’s compensable condition.
With regard to massage, Mr Ternes pointed out that massage was administered to various different parts of Ms Heales’s body; it was therefore difficult to relate massage to her compensable knee condition. It was doubtful whether the evidence supported an exacerbation of Ms Heales’s lymphoedema in the area around her knees, but even if it did, the clinical notes from Mr McDonald and his oral evidence showed a strong emphasis on remedial massage, rather than the specialised massage used to treat lymphoedema. He noted that lymphoedema pre-existed the original workplace injury that gave rise to Comcare’s liability.
Evidence parallel to that supplied for acupuncture, deriving from the same documents, supports the contention that Drs Sanderson and Moulding included the provision of massage in Ms Heales’s treatment plans. Dr Sanderson said that massage “increases mobility and gait” and Dr Moulding specified that the benefits of massage were that it “stops cramps, spasms – helps flexibility”. Mr McDonald’s letter to Comcare of 15 March 2016 (T57) stated that Ms Heales experiences pain and movement difficulties from her compensable injury and its sequelae, and massage is included in her care plan to ameliorate that pain and those difficulties; and that the treatment has been “very successful” in allowing Ms Heales to minimise her pain and maintain mobility. Mr McDonald said that one of the therapists providing care to Ms Heales specialises in treating legs, knees and ankles and the other focuses on hips, back and shoulder. The clinical records from Mr McDonald’s practice do not reveal a great deal, but they show that some proportion of the massage sessions appears to focus on her lower limbs.
Dr Stubbs once again asserted that massage in cases of this kind is a placebo treatment; that any form of activity that promotes a better feeling in the applicant would be as effective; and that there is no objectively measurable improvement to the patient’s physiological state. It appeared that in this opinion Dr Stubbs was limiting himself to remedial massage and was putting specialised forms of massage, such as that applied as a treatment for lymphoedema, to one side.
The thesis being put forward by Ms Heales is that she injured her right knee in 1998; subsequent use of NSAIDs led to gastroenterological issues and she had to stop using the medication; that her knee needed replacing, as subsequently did the other knee, which had taken an increasing share of the load on the lower limbs because of the injury to the right knee; that she is left with a burden of pain, discomfort and reduced mobility as a result; and that massage eases that pain and discomfort and restores mobility. If that thesis is accepted, the connection between massage and the original injury, while somewhat extended and tenuous, would nevertheless meet the test of the treatment being “in relation to” that injury. In terms of specialist opinion I have only Dr Stubbs to go on, in that Dr Moulding is a general practitioner; but Dr Stubbs’s position is rather dismissive of a widely followed medical practice – massage – that is recognised as a form of medical treatment under the SRC Act in subsection 4(1). While that recognition continues, Dr Stubbs’s somewhat blanket dismissal appears to be rather divorced from the particularities of the case in excluding all forms of remedial massage as medically worthless, except as a placebo. I return to this issue below. But for the present question of whether massage was provided to Ms Heales in relation to her compensable condition, I am satisfied that the nexus required under section 16 exists: Dr Moulding and Mr McDonald attest to it, and although their opinion needs perhaps to be discounted somewhat in that as Ms Heales’s treating doctors they are to some degree also her advocates, nevertheless I prefer their evidence in the end to that of Dr Stubbs on this point; and the reasoning advanced earlier in respect of acupuncture applies equally here, that if massage is a placebo then it is provided “in relation to” any condition that Ms Heales subjectively feels is improved by the treatment. I find that massage is medical treatment provided in relation to Ms Heales’s compensable condition.
Are massage and acupuncture reasonable treatment for Ms Heales in the circumstances?

There is an abundance of cases dealing with section 16 of the SRC Act. A leading case is Jorgensen and Commonwealth of Australia [1990] AATA 129, where Gray J considered whether the provision of in vitro fertilisation to a woman with a compensable condition was medical treatment. His Honour’s reasoning includes the following comment:
In my view, the question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical treatment at all, would have been better for a person suffering from particular injury. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation.
A large number of cases from the tribunal address the reasonableness of different therapies, including passive therapies such as massage. In Alamos the tribunal noted that the circumstances to be considered under section 16 included the benefit of the treatment, the long-term effect of the treatment, whether it was intended to be curative or maintain the status quo and its cost. In the hearing Mr Ternes took me to two separate cases that by coincidence involve the same applicant. In Comcare v Rope [2004] FCA 540 (Rope No 1) Stone J gave general endorsement to the idea that assessing the reasonableness of medical treatment required some form of cost/benefit analysis. In Rope and Comcare [2018] AATA 42 (Rope No 2) Deputy President Humphries of this tribunal put forward a summary of the case law dealing with manual therapies such as physiotherapy and massage. Mr Ternes commended that summary to me.
It is clearly an advantage if a cost/benefit analysis can provide a clear outcome on whether a treatment modality is yielding a positive outcome. I note, however, that the endorsement of the concept by Stone J in Rope No 1 is put in rather qualified terms:
… the reference in s 16(1) to treatment being ‘reasonable to obtain in the circumstances’ is a clear indication that, in this case, the Tribunal was required to engage in a costs/benefit analysis in relation to PNI treatment. The Tribunal needed, among other things, to weigh the benefit of PNI treatment against the cost of obtaining it…
The use of the phrase “in this case” suggests that cost/benefit analysis is not necessarily universally applicable; it is also apparent from the reasoning in Rope No 1 and in the tribunal case from which the appeal was made (Rope and Comcare [2003] AATA 822) that the form of cost/benefit analysis commended by Stone J is not the quantitative form of that process known from the commercial world but rather a qualitative weighing up of the costs of treatments against the benefits. A similar approach is implied in Comcare v Holt [2007] FCA 405.
In Rope No 2 DP Humphries summarised a number of tribunal cases dealing with manual therapies, including with reference to the Clinical Framework (referred to below as “the Framework”). He noted that although the cases pull in different directions to some degree, a trend can be identified that:
… treatment is more likely to be considered reasonable where:
·     its benefits are substantial and its cost is low;
·     it is effective, i.e. achieves measurable benefits;
·     it is active and promotes self-management of the compensable condition;
·     it is consistent with the principles in the Framework; and
·     it is of limited duration.
46. Conversely, treatment is less likely to be considered reasonable where:
·     its benefits are insubstantial and its cost is high;
·     it is passive and promotes dependence on itself; and
·    it is ongoing and indeterminate.
The cases that are assembled in Rope No 2 are at tribunal level, and each turns on its particular facts. It is also apparent that many of them are the kind of case where a different decision-maker, on the same facts, might arrive at a different decision. In a sense, then, the conclusions outlined above from Rope No 2 are a statistical reflection of what has been decided in those cases. I note, too, that the principles set out in the Clinical Framework appear to have exerted significant influence on decision-makers in some instances.
The costs in Ms Heales’s case - for massage and acupuncture – are by no means insubstantial. Exhibit R1 lists cumulative costs for Ms Heales: the total cost from 1988 to 17 October 2016 is $382, 692.98; the two largest components in that total are massage ($92,431.78) and acupuncture ($55,313.20), evidently because they are continuing expenses rather than one-off payments. Against those costs, the benefits that Ms Heales accrues from treatment are, on her account, increased mobility, reduced pain and discomfort and better sleep. On Dr Stubbs’s account, the benefits are purely psychological. Ms Heales is beyond retirement age and there is no argument that she would at any point return to the workforce, so no public benefits from workforce participation are available. There is no suggestion either that there are any avoided costs, for example Ms Heales did not suggest that she would need to pay a carer if she could not continue to obtain massage and/or acupuncture. Ms Heales is a self-funded retiree, and since Comcare ceased payment for massage and acupuncture she has chosen to pay for massage herself and stop receiving acupuncture. Ms Heales acknowledged at the hearing that each massage session costs $90 and each acupuncture session $173.40. Against these costs, the benefits of treatment are essentially intangible and unquantifiable.
There is no suggestion here that the therapies in contention have any curative purpose: their purpose is entirely palliative and it appears that Ms Heales will never be free of some level of pain, discomfort and impaired mobility. That does not mean of itself that the treatment she receives is not reasonable. There are many cases where treatment that is palliative has been accepted as reasonable because it eases a person’s pain and enables the person to continue functioning at some higher level than otherwise (see for example Rope and Comcare [2013] AATA 238 at [51]). Dr Gillespie, the surgeon who had undertaken Ms Heales’s knee replacements, in a letter of 11 April 2018 (exhibit A2), was supportive of continued massage, expressing disappointment at the prospect of discontinued support, and suggesting that “regular deep soft tissue massage may offer some symptomatic improvement”.
I think it fair to say that no objective measurement of the effectiveness of Ms Heales’s manual therapies has taken place. This question was not addressed at length in evidence, but it is clear that Dr Moulding is basing his continued use of the therapies on his general appreciation of them and on what his patient, Ms Heales, tells him about their effectiveness. That is not an unreasonable way for a general practitioner to deal with such matters, and it would not be uncommon; but Ms Heales’s report of effectiveness is entirely subjective, and where the cost of treatment is being borne by a third party (here Comcare, an insurer) it would be desirable for some objective assessment of effectiveness to occur, for example, by documentation of range of motion to confirm increased mobility or frequency of use of analgesia to confirm pain relief. It remains the case, at this time, that no measurement has established either the effectiveness or the ineffectiveness of Ms Heales’s treatment in an objective sense.
Some of the cases cited in Rope No 2 note that long-term application of passive therapies can be addictive and induce dependence. This is reinforced under the third principle in the Clinical Framework, which encourages independence and the reduction and elimination of treatment where possible. The document includes the following statement:
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.
This line of thinking appears to have been influential in a number of cases (including in cases that pre-date the Clinical Framework): see for example Popovic and Comcare [2000] AATA 264; Bayani and Australian Postal Corporation [2015] AATA 342; Chowdhary and Comcare [1998] AATA 448; Topping and Comcare [2015] AATA 525. But the indicia of dependency on a form of treatment are by no means clear. Nor is it clear what form of expert is in a position to provide an opinion on whether a particular patient has become dependent on treatment or not.
There must be more to dependency than merely years of receiving the same treatment. The material in the Clinical Framework relating to the third principle points to “restrictive beliefs” leading to entrenched feelings of distress and behaviours that do not support recovery: such beliefs include fear avoidance (the feeling that activity that causes pain will worsen an injury); catastrophizing; blame; and a sense of injustice. But these beliefs do not seem to be put forward as indicia of dependence. Nevertheless, there must be a distinction between identifying a successful treatment and applying it on a continuing basis, on the one hand, and becoming unhealthily dependent on a form of treatment, on the other, but it is not clear how such a distinction might be made. Perhaps most doctors, having treated or otherwise seen numbers of chronically ill patients, could be expected to recognise illness behaviour when they see it. It would seem to require nonetheless some objective basis for determining in a statutory context whether a patient is dependent or not. Clearly for Comcare a deciding factor might be the cost: a continuing treatment that is expensive is more likely to come into question than one that is inexpensive. But, as discussed above, cost is properly compared with benefits rather than with length of treatment.
It is also unclear whether a treatment modality on which a patient has become dependent is inevitably other than reasonable. The discussion in the clinical framework recognises that dependence will often carry with it consequences such as entrenched distress and sometimes deteriorating health, with a compensable injury becoming worse. That would provide a clear example of a treatment that was not reasonable. But Ms Heales, for example, takes analgesia daily, as do many other patients who suffer from chronic pain. Does that create dependence?
In Ms Heales’s case Dr Stubbs suggested in his supplementary report (exhibit R4, 16 May 2017) that she had become dependent on massage and acupuncture. He made the comment in response to a specific question by Comcare on the point and the evidence on which he was basing that comment was not clear, nor was the specific expertise he brought to the judgment. He commented as follows:
I am also very aware that the aim is not to reinforce illness behaviour but often that is not a realistic goal; for some the only achievable goal is to minimise illness behaviour. I think this should be the aim for Ms Heales. I do think she has become dependent on acupuncture and massage therapy as a manifestation of Cognitive dissidence but I think that challenging her behaviour is not likely to be successful hence minimization is an achievable goal but elimination is not.
In the present instance I am not persuaded that the evidence allows me to conclude that Ms Heales has become unhealthily dependent on massage and acupuncture. Although Dr Stubbs reached that conclusion, it is by no means clear how he did so, and as a medico-legal expert he reached his conclusions on the basis of a collection of written material plus a single brief consultation. I cannot see how he could have the material he might have needed to arrive at a firm conclusion about illness behaviour, for example.
The scientific basis for the effectiveness of massage and acupuncture was addressed in the hearing and in the submissions of the parties. A number of papers and abstracts were provided by both Ms Heales and by Comcare, in particular by Dr Stubbs. The papers Ms Heales provided suggested that massage and acupuncture were effective forms of therapy to some degree, and other papers provided comment on the value of sleep. It was not clear, however, that these papers were from peer reviewed journals, and most were provided in the form of abstracts, without the method of experimental enquiry being explained (that would presumably only be available in the full paper). In one case[1] Dr Stubbs provided the full text; he criticised the experimental approach, arguing that the absence of “razzmatazz” in the provision of alternative treatments made it difficult to rely on the results. He preferred a second paper[2], which I accept is a convincing debunking of the therapeutic effectiveness of acupuncture in patients over the age of 50 with pain problems. I note that Dr Moulding’s basis for prescribing acupuncture seemed to be limited to the fact that he had been to China and liked acupuncture. Overall, the impression I gained was that the scientific case for the effectiveness of acupuncture has not been persuasively made; but that there are still significant parts of the medical profession that accept a role for therapeutic massage.
[1] 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.
[2] R S Hinman et al, Acupuncture for chronic knee pain; a randomized clinical trial JAMA 2014; 312 (13): 1313-22.
Dr Stubbs was generally dismissive of both massage and acupuncture, as noted above. But his evidence was inconsistent to a degree, in that his oral evidence at the hearing was more critical than written opinion in earlier reports. Thus in his first report (exhibit R3, 27 March 2017) Dr Stubbs noted that there was no systematic evidence that massage was effective but limited evidence that acupuncture might be effective for chronic pain. In that same report Dr Stubbs noted that Ms Heales’s intolerance to NSAIDs would rule out most simple analgesics. He concluded that “in this case I would take the view that the acupuncture would cause no harm there is a variety of other treatments that would be equally ineffective that one would be more concerned about [sic]”. In his third report (exhibit R5, 1 July 2018) Dr Stubbs goes further into questions about placebos, is more dismissive of both massage and acupuncture, and suggests that NSAIDs are indicated only for inflammatory conditions (such as inflammatory arthritis), with conventional analgesics such as paracetamol being otherwise preferred.
I do not accept that Ms Heales’s sensitivity to NSAIDs is in the end a factor that should be given any weight. Although Dr Stubbs appeared to shift his view on the issue somewhat, I accept his later view that NSAIDs are primarily indicated for inflammatory conditions and that alternative analgesia is available for generalised osteoarthritis and other chronic pain conditions. Indeed Ms Heales is already taking Panadeine forte, a prescription analgesic, and I cannot see that her intolerance to NSAIDs bears in any significant way on her need for manual therapies.
Ms Heales took me to cases that she had discovered herself. I have referred above to one of them (Rope No 2); the other two are Davis and Comcare [2017] AATA 93 and Warner and Comcare [2018] AATA 1403. Both cases concern liability under section 14 of the SRC Act and neither sheds any helpful light on the present matter.
Taking all the above into account I have concluded that it is not reasonable for Ms Heales to continue to obtain acupuncture therapy under section 16 of the SRC Act. I note that she has chosen to continue massage but not acupuncture at her own expense; that the scientific basis for acupuncture’s therapeutic application is weak; that the evidence of its effectiveness in Ms Heales’s case as presented to me is thin and unpersuasive; and that it has been a comparatively expensive therapy with no logical point at which it would no longer be prescribed. In all the circumstances, acupuncture is no longer a reasonable treatment for Ms Heales.
On the other hand I am not persuaded that it is unreasonable for Ms Heales to continue receiving massage. Massage is a form of therapy explicitly recognised in the SRC Act (in the definition of medical treatment in section 4). And while Dr Stubbs might dismiss it as a placebo therapy, I accept for all the reasons he advances that it is more likely to be effective in her treatment than readily available alternatives. Her doctor certainly thinks it useful and effective. I do think it reasonable, however, that Dr Moulding undertake and report on a test of the effectiveness of massage therapy, for example by withholding it for a brief period and measuring the change in functionality or analgesic consumption. Any future reviews of continued treatment could then take the results into account. If it is demonstrated, for example, that massage exerts only a placebo effect, some consideration could be given to whether more economical ways of providing the same benefit might be available.
The decision under review in matter 2016/6490 is affirmed. The decision under review in matter 2016/5161 is set aside; it continues to be reasonable for Ms Heales to receive massage therapy. The latter decision should be read in the light of the comments immediately above.

89. I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman

......................[sgd]..................................................
Associate
Dated: 11 October 2018

Date(s) of hearing: 10-11 July 2018

Date final submissions received: 10 August 2018

Applicant:
In person

Counsel for the Respondent: Mr Ray Ternes

Solicitors for the Respondent: Ms Shery William, Comcare Legal

Date(s) of hearing:	10-11 July 2018
Date final submissions received:	10 August 2018
Applicant:	In person
Counsel for the Respondent:	Mr Ray Ternes
Solicitors for the Respondent:	Ms Shery William, Comcare Legal