Howes and Comcare (Compensation)
[2016] AATA 448
•30 June 2016
Howes and Comcare (Compensation) [2016] AATA 448 (30 June 2016)
Division
GENERAL DIVISION
File number
2013/1987
Roseanne Howes
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Dr James Popple, Senior Member Date 30 June 2016 Place Canberra Comcare’s decision on 22 April 2013 is affirmed.
.................[sgd]......................................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — remittal from Federal Court for reconsideration according to law — liability accepted for physical injuries — breast reduction surgery — whether surgery was medical treatment — whether relationship required between surgical treatment and a particular injury for that treatment to be medical treatment — whether surgery obtained in relation to accepted injuries — whether surgery could have affected the accepted injuries or their symptoms — decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 16
CASES
Howes and Comcare [2015] AATA 39
Howes v Comcare [2015] FCA 1078
REASONS FOR DECISION
Dr James Popple, Senior Member
30 June 2016
Summary
Comcare accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for a number of injuries suffered by the applicant. Several doctors advised the applicant that breast reduction surgery might reduce her pain. She underwent that surgery. After the surgery, she continued to experience the symptoms of her injuries (including pain), though to a lesser degree.
Notwithstanding the advice she received before the breast reduction surgery, that surgery could not have affected the symptoms of the applicant’s accepted injuries. It follows that the breast reduction surgery was not obtained in relation to those accepted injuries, so Comcare is not liable under s 16 of the SRC Act to pay the applicant compensation for the costs associated with the surgery.
Background
On 28 January 2015, the Tribunal made a decision in this review.[1] On 26 February 2015, the applicant (Ms Roseanne Howes) appealed that decision to the Federal Court. On 7 October 2015, the Federal Court set aside the Tribunal’s decision, and remitted the application for review to the Tribunal for reconsideration according to law.[2]
[1] Howes and Comcare [2015] AATA 39 per Denovan M.
[2] Howes v Comcare [2015] FCA 1078 per Griffiths J.
I respectfully adopt the Federal Court’s summary of the background facts in this review:
In August 2003, the applicant commenced work with the Australian Taxation Office (ATO). Her employment required her to use a computer constantly. In April 2005 she experienced intermittent pain in her neck and by July 2005 she was experiencing constant pain in her neck and pain in her right shoulder. After she submitted a workers’ compensation claim in September 2005, Comcare determined that liability was accepted for “intervertebral disc disorder—cervical region”, “sprain of shoulder and upper arm (right)”, “subacromial bursitis (right)” and “erosion of teeth” (caused by the applicant grinding her teeth at night in response to her pain) (the compensable injuries).
The applicant claimed that the weight of her breasts increased the pain in her neck and shoulder and that she had also put on weight because of the medication she was taking for her pain. In November 2006, she consulted a plastic surgeon, Dr Ferguson about the possibility of breast reduction for the relief of the pain. In March 2007, she consulted an orthopaedic surgeon, Dr Coyle, who suggested that breast reduction might help the pain.
Throughout 2006–2007 the applicant undertook various treatments including for weight loss. She also consulted another orthopaedic surgeon (Dr Damiani) in August 2007. She underwent a shoulder operation with Dr Damiani on 25 March 2008, but this operation did not help her pain. From late 2005 until at least November 2008, the applicant was treated by a rehabilitation specialist, Dr May, who prescribed oral pain medication, massage, hydrotherapy, physiotherapy, a home exercise program and guided injections around the C6 nerve root.
Dr May ultimately referred the applicant to a neurosurgeon, Dr Pell, in respect of her neck pain. In December 2008 Dr Pell diagnosed that Ms Howes had a C5-C6 disc prolapse. He advised that she undergo neck surgery. The applicant was reluctant to do so; consequently he recommended further nerve root injections.
In July 2009, the applicant’s general practitioner (Dr Donaghy) referred her to Dr Milovic, a plastic surgeon, for consideration of a breast reduction for pain relief. The applicant claimed that she was advised by Dr Milovic that a breast reduction might assist in the reduction of her pain. In August 2009, the applicant was referred again to Dr Damiani. She was also referred for a second opinion to a plastic surgeon, Dr Taylor, who in August 2009 advised her that a breast reduction might assist in pain reduction.
On 23 October 2009, at the ATO’s request, the applicant attended a consultant, Dr Macauley (a consultant rheumatologist). The applicant claimed that she asked Dr Macauley whether a breast reduction would be beneficial and that she was told that a breast reduction might assist in pain reduction and that she should “consider a breast reduction as a matter of urgency”.
On 2 November 2009, the applicant underwent breast reduction and abdominoplasty surgery, which was carried out by Dr Milovic.
In 2012, the applicant claimed reimbursement under s 16 of the SRC Act of the cost of the breast reduction ($19,956.80, comprising fees charged by or relating to the surgeon, the anaesthetist, pathology and the hospital), which was refused by Comcare on 22 August 2012. On 25 January 2013, a reconsideration was requested. The reconsideration was concluded on 22 April 2013. It resulted in an adverse decision. The applicant sought a review by the AAT of that reviewable decision.
The hearing in the AAT commenced on 10 November 2014 and the AAT member reserved her decision at the end of that day. …
…
On 28 January 2015, the AAT handed down its reasons for decision for affirming the reviewable decision.[3]
[3] Howes v Comcare [2015] FCA 1078 at [2]–[12] per Griffiths J.
Decision under review
The decision under review is Comcare’s decision on 22 April 2013 affirming its decision that it was not liable to pay Ms Howes compensation for the costs associated with the breast reduction surgery she had on 2 November 2009 (the surgery).
Issue
Section 16 of the SRC Act relevantly provides:
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
The issue in this review is whether Comcare is liable under s 16 to pay Ms Howes compensation for the costs associated with the surgery. That depends on:
·whether the surgery was “medical treatment” as defined in the SRC Act;
·whether the surgery was obtained “in relation to” the compensable injuries; and
·whether the surgery was treatment that it was reasonable for Ms Howes to obtain in the circumstances.
Was the surgery “medical treatment”?
Section 4(1) of the SRC Act includes the following definition:
medical treatment means:
(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
…
The definition includes seven further paragraphs not relevant to this review.[4]
Medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner (paragraph (a) of the definition)
[4] Before the Tribunal as previously constituted, Ms Howes’s case relied on paragraph (a) of this definition; Comcare’s relied on paragraph (b). On appeal, the Federal Court decided that the Tribunal had erred by considering only Comcare’s case, and that that error was material: Howes v Comcare [2015] FCA 1078 at [92]–[127] per Griffiths J.
Comcare accepts that the surgery was conducted by a legally qualified medical practitioner. However, it argues that surgery cannot be “surgical treatment” (for the purposes of paragraph (a) of the definition of “medical treatment”) unless it treats the relevant injury or, at least, the symptoms of that injury. And Comcare says that, in this review, the surgery did not treat the compensable injuries or their symptoms.
I do not agree that paragraph (a) is restricted in this way. I think that paragraph (a) means that any “surgical treatment by … a legally qualified medical practitioner” is “medical treatment” for the purposes of the SRC Act. The surgical treatment must be treatment—it must treat (or attempt to treat) something—but there does not have to be a relationship between any such surgical treatment and a particular injury before that treatment can amount to “medical treatment”. The definition of “medical treatment” makes no reference to an injury.[5] By contrast, the definition of “therapeutic treatment” (also in s 4(1)) includes “treatment given for the purpose of alleviating … an injury”.
[5] This includes the seven paragraphs that I did not include in the extract from the definition of “medical treatment” in s 4(1) quoted at [8] above.
Of course, the fact that specific surgical treatment is “medical treatment” for the purposes of the SRC Act does not make Comcare liable to pay for the costs of that treatment. Section 16 requires that there be a connection between the medical treatment and an injury: it provides that Comcare is liable for costs for medical treatment obtained “in relation to” an injury.
I discuss below[6] the question whether the surgery was obtained in relation to Ms Howes’s compensable injuries. But, even if the surgery was not obtained in relation to those injuries—even if it did no more (and was intended to do no more) than treat the size of her breasts—the surgery was surgical treatment by a legally qualified medical practitioner. It follows (from paragraph (a) of the definition of “medical treatment” in s 4(1) of the SRC Act) that the surgery is medical treatment.
Therapeutic treatment obtained at the direction of a legally qualified medical practitioner (paragraph (b) of the definition)
[6] See [14]–[24] below.
Because of my conclusion about the application of paragraph (a) of the definition of “medical treatment”, I do not have to consider the application of paragraph (b) to this review.
Was the surgery obtained “in relation to” Ms Howes’s compensable injuries?
Section 16(1) provides that Comcare is liable to pay compensation for the cost of medical treatment obtained “in relation to the injury” that the employee suffered.
The injuries that Ms Howes suffered (her compensable injuries) are “intervertebral disc disorder—cervical region”, “sprain of shoulder and upper arm (right)”, “subacromial bursitis (right)” and “erosion of teeth”.[7] Comcare says that the surgery, to reduce the size of Ms Howes’s breasts, was not medical treatment obtained in relation to those injuries.
[7] See Howes v Comcare [2015] FCA 1078 at [2] per Griffiths J, quoted at [4] above. Neither party suggests that “erosion of teeth” is relevant to this review.
On 21 December 2009, Dr Nicholas Burke, a consultant occupational physician, prepared a report on Ms Howes. Under the heading “current status”, he reported:
Ms Howes continues to describe ongoing symptoms. Principal symptom is pain; she described intermittent pain. She will experience pain in the neck region. She described this pain as a feeling of ants crawling over her neck. This can progress through to pain in the right suprascapular region, into the right upper arm and triceps, into the elbow and then a feeling of weakness and ache in the right forearm. Associated with this is tingling in her hand affecting the 1st, 2nd and 3rd fingers.
On occasion she can have tingling without all of the other symptoms. However, she usually has one or part of all of the symptoms described above. She can have some or most of the other symptoms, again without the tingling and “pins and needles”.
The principal pain, however, is between her shoulder blades. This tends to occur most days. Generally when she is at work these symptoms tend to come on usually around 2:00 pm or 3:00 pm. She can get a headache as well.
Sitting is the worst activity that tends to bring on the pain. Standing, she has to shift to left and right as she does this. Walking, she stated her tolerance is approximately half an hour. Bending over, she generally squats or is very careful. Lifting, she can carry lighter shopping items.
Dr Burke had seen Ms Howes on 8 December 2009, about a month after the surgery. Although Dr Burke’s report reflected the symptoms that she reported to him after the surgery, at the hearing Ms Howes agreed that the report largely described the symptoms that she had experienced before the surgery. She said that she continued to experience those symptoms after the surgery, “but to a much lesser degree”.
Comcare says that the symptoms of Ms Howes’s compensable injuries are radicular: that is, symptoms attributable to the spinal nerve root. Dr David Maxwell, an orthopaedic and spinal surgeon, gave evidence at the hearing. He had seen Ms Howe on 1 August 2013. His view was that her symptoms were indicative of radiculopathy associated with the C6 nerve root:
… there are some qualities there of radicular type symptoms, particularly the pins and needles radiating into the thumb, index and middle finger. But this is often associated with pain radiating down the arm, however. Pain in the region of the scapular can also be a radicular symptom; that is a symptom due to a compressed nerve. The shooting pain may be, particularly if it’s related to neck movement. The feeling of ants crawling around the elbow, we call that formication which is usually not regarded as a particularly objective symptom. It’s often described by people with a psychosomatic problem. So apart from the ants crawling around, the other symptoms you describe would be typical of a radiculopathy.
On the basis of the results of X-rays, computed tomography (CT) and magnetic resonance imaging (MRI) scans of Ms Howes’s cervical spine, taken in 2005 and 2010,[8] Dr Maxwell’s view was that it was likely that Ms Howes had suffered from a disc root osteophyte complex: a narrowing of the C5/6 disc. A narrowing of the disc, he said, makes someone more likely to develop reactive changes, including spurs growing from the adjacent vertebrae. These osteophytes may protrude back into the nerve root, causing impingement. He said that “[t]hese symptoms can resolve spontaneously and they’re not constant, and they improve or become worse for no particular reason”. He added that, “although the earlier symptoms did suggest some C6 nerve irritation, [he] could find no clinical evidence for that when [he] examined her in 2013”.
[8] X-rays in October 2005; a CT scan on 11 October 2005; and an MRI scan on 21 July 2010.
Ms Howes points out that, before the surgery, several doctors advised her that breast reduction surgery might reduce her pain. As noted above,[9] she was told this by Dr Felicity Donaghy (her general practitioner—GP), Dr Alan Ferguson, Dr Vladimir Milovic (who performed the surgery),[10] Dr Alastair Taylor and Dr David Macauley.[11] Comcare points out that (apart from Ms Howes’s GP and Dr Macauley, a consultant rheumatologist) these doctors are plastic surgeons.
[9] Howes v Comcare [2015] FCA 1078 at [3], [6]–[7] per Griffiths J, quoted at [4] above.
[10] The Federal Court says that Ms Howes “claimed that she was advised by Dr Milovic that a breast reduction might assist in the reduction of her pain”: Howes v Comcare [2015] FCA 1078 at [6] per Griffiths J, quoted at [4] above. Dr Milovic prepared a report on 22 July 2009. He reported that “I believe that [Ms Howes] would benefit from bilateral breast reduction and I believe that she will have a relief of the pain in her shoulders and back after the procedure”.
[11] The Federal Court says that Ms Howes “claimed that she asked Dr Macauley whether a breast reduction would be beneficial and that she was told that a breast reduction might assist in pain reduction and that she should ‘consider a breast reduction as a matter of urgency’”: Howes v Comcare [2015] FCA 1078 at [7] per Griffiths J, quoted at [4] above. Dr Macauley prepared a report on 11 December 2009, having seen Ms Howes on 23 October 2009. He reported that “Ms Howes has also undertaken advice regarding breast reduction surgery, to take some of the strain off her cervical spine”. He added that, in his view, “consideration of breast reduction surgery should be undertaken as a matter of urgency”. This does not amount to advice that breast reduction surgery would reduce Ms Howes’s pain, but it comes close.
Dr Maxwell’s evidence was that breast reduction surgery would not have affected Ms Howes’s neck and radicular pain. This is because the weight of the breasts is borne by the thoracic spine and not by the cervical spine. Reducing the weight of the breasts, he said, “wouldn’t influence the diameter of the intervertebral foramina, which is the problem with radiculopathy”. He was of the view that even those of Ms Howes’s symptoms that were not necessarily radicular (for example, neck pain and headaches) would not be affected by breast reduction surgery. Breast reduction surgery, he said, would have no impact or only limited impact on a person’s posture, so that it would not affect non-radicular pain. Comcare says that, on this issue, I should prefer the evidence of Dr Maxwell, an orthopaedic and spinal surgeon, to that of plastic surgeons, a rheumatologist and a GP.
Ms Howes says that, before the surgery, she was also advised by Dr William Coyle (also an orthopaedic surgeon) that breast reduction surgery might reduce her pain. There is no evidence, apart from Ms Howes’s assertions, that Dr Coyle gave her this advice. Dr Coyle prepared a report on 12 March 2007, having seen Ms Howes that day. His report does not mention breast reduction surgery.[12]
[12] The Federal Court, in its summary of the background facts in this review (quoted at [4] above), refers to this consultation and says Dr Coyle “suggested that breast reduction might help the pain”: Howes v Comcare [2015] FCA 1078 at [3] per Griffiths J. Having considered that summary, and other references to Dr Coyle in the Federal Court’s reasons for decision, I do not take the Court to have made a finding of fact that Dr Coyle advised Ms Howes about breast reduction surgery. I think the Court was noting that Ms Howes claimed that Dr Coyle gave her that advice. In [23] below, I find that he did not.
Having regard to all of the evidence (including the transcript of the hearing of this matter by the Tribunal as previously constituted), I make the following findings on the balance of probabilities:
·Drs Ferguson, Milovic, Taylor, Macauley and Donaghy each advised Ms Howes that breast reduction surgery might reduce her pain.
·Dr Coyle did not advise Ms Howes that breast reduction surgery might reduce her pain. I have made this finding having particular regard to the fact that his report canvasses surgical treatment,[13] but does not mention breast reduction surgery.
[13] “If significant symptoms persist,” he reported, “I believe that surgical treatment, namely discectomy and neurolysis of the right C6 nerve root, should be considered”.
·The symptoms that Ms Howes reported and exhibited before the surgery, including her pain, were predominantly radicular.
·Breast reduction surgery could not have affected the symptoms of Ms Howes’s compensable injuries.
oIn relation to the radicular symptoms, this is because such surgery would not affect the diameter of the intervertebral foramina.
oIn relation to the non-radicular symptoms, this is because the surgery would not have sufficient impact on her posture.
I have made this finding:
onoting that, about a month after the surgery, Ms Howes reported that she continued to experience the symptoms, albeit “to a much lesser degree”; and
onoting Dr Maxwell’s evidence that “[t]hese symptoms can resolve spontaneously and … improve or become worse for no particular reason”.
In making the third and fourth findings above, I prefer the opinion of Dr Maxwell (an orthopaedic and spinal surgeon) to the opinions of Drs Ferguson, Milovic and Taylor (plastic surgeons), Dr Macauley (a rheumatologist) and Dr Donaghy (a GP).
If follows that the surgery was not medical treatment obtained in relation to Ms Howes’s compensable injuries.
Ms Howes’s reasons for having the surgery
The Tribunal, as previously constituted, found that Ms Howes had the surgery “primarily for cosmetic reasons” and not “for the primary purpose of treating her compensable injuries”.[14] The Tribunal made this finding as part of its consideration whether the surgery was “therapeutic treatment” for the purposes of paragraph (b) of the definition of “medical treatment” in s 4(1) of the SRC Act. As noted above,[15] because of my conclusion about the application of paragraph (a) of that definition, I do not have to consider the application of paragraph (b) to this review. And, because of the findings that I have made, I do not have to make a finding about Ms Howes’s reasons for having the surgery.
[14] Howes and Comcare [2015] AATA 39 at [47] and [67] per Denovan M; see also at [32].
[15] See [13] above.
Ms Howes saw Dr Burke on 8 December 2009: 36 days after the surgery. Dr Burke had been asked, by the ATO, to prepare a medical report. He prepared that report on 21 December 2009. His report is fairly detailed. It comprises a medical history (including a description of her then current symptoms, as noted above[16]); details of his physical examination of Ms Howes; summaries of X-rays, a CT scan, an MRI scan and an ultrasound carried out previously; and answers to specific questions asked by the ATO. The report makes one reference to the surgery: Dr Burke explains that recent “plastic surgery done by Dr Milovic” was the reason why Ms Howes had not been able to undertake hydrotherapy. He makes no other reference to the surgery in his report.
[16] See [16]–[17] above.
Ms Howes says that she would have told Dr Burke, when she saw him so soon after the surgery, that she had had the surgery “for treatment for [her] neck condition”. If she did, it is strange that Dr Burke made no mention of it in that context; if she did not, it suggests that Comcare is correct when it says that Ms Howes did not think that she was having the surgery in relation to her compensable injuries.
I do not think that there is sufficient evidence for me to make a finding about Ms Howes’s reasons for having the surgery. (For example, Dr Burke was not called as a witness before me, or before the Tribunal as previously constituted, to answer questions about what Ms Howes told him on 8 December 2009.) In any event, I do not need to make a finding about Ms Howes’s reasons. I have found that the surgery could not have affected the symptoms of Ms Howes’s compensable injuries. The surgery was not medical treatment obtained in relation to her compensable injuries, regardless of whether she (or, indeed, any of the doctors that she consulted before the surgery) thought that it was.
Was the surgery treatment that it was reasonable for Ms Howes to obtain
Because I have concluded that the surgery was not medical treatment obtained in relation to Ms Howes’s compensable injuries, I do not have to consider whether the surgery was “treatment that it was reasonable for [her] to obtain in the circumstances”.
Conclusion
The surgery was “medical treatment” as defined in s 4(1) of the SRC Act. However, the surgery was not obtained in relation to Ms Howes’s compensable injuries. Comcare is not liable under s 16 to pay her compensation for the costs associated with the surgery.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple ..............[sgd]..........................................................
Associate
Dated 30 June 2016
Date of hearing 2 May 2016 Counsel for the Applicant Mr Allan Anforth Solicitors for the Applicant Maurice Blackburn, Lawyers Counsel for the Respondent Ms Kristy Katavic Solicitors for the Respondent Sparke Helmore, Lawyers
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