Huynh and Comcare (Compensation) - [2024] AATA 1821

Huynh and Comcare (Compensation) [2024] AATA 1821 (20 June 2024)
Division:GENERAL DIVISION
File Number(s): 2023/2632
Re:Duong Van Huynh
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:20 June 2024
Place:Melbourne

The Tribunal sets aside the decision under review dated 10 March 2023 and remits it for reconsideration in accordance with the direction that as at the date of the decision under review, massage therapy was reasonable treatment in respect of the Applicant’s injury.
.................[sgd].......................................................
Dr Stewart Fenwick, Senior Member
Catchwords
COMPENSATION – accepted claim for mental health condition – denial of ongoing liability for massage therapy – nature and origins of muscle tension considered – whether treatment reasonable in the circumstances – Comcare clinical framework considered – decision set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1985 (Cth)
Cases
Alamos v Comcare [2014] AATA 629
Comcare Australia v Rope [2004] FCA 540
Ellison v Comcare [2022] FCA 95
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Rope and Comcare [2018] AATA 42
Smith and Comcare [2018] AATA 2901
Secondary Materials
Clinical Framework for the Delivery of Health Services (June 2012)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
20 June 2024
BACKGROUND

Mr Huynh lodged an application on 12 April 2023 for review of a decision of the Respondent, dated 10 March 2023, affirming an earlier decision to deny liability for further payments of compensation in the form of medical expenses for massage therapy beyond 20 April 2023. The same decision also affirmed a decision that there be a reduced schedule of this therapy leading up to that date.
The Applicant has an accepted claim for compensation under the Safety, Rehabilitation and Compensation Act 1985 (SRC Act), with liability accepted in December 2006 for ‘adjustment reaction with anxious mood’, and a deemed date of injury of 1 June 2006. This decision followed a period of some two years in which Mr Huynh had substantial time off work, and attempts at return to work. The decision in 2006 followed an earlier claim, also for an anxiety condition, which was accepted in August 2004.
Relevantly to the present matter, Mr Huynh began receiving compensation for medical expenses in respect of myotherapy, or massage treatment, following a further decision in April 2010. Approximately a year prior to this, the Applicant’s employment with Centrelink ceased under invalidity retirement. He had been at all relevant times a staff member of this agency.
Mr Huynh’s claims, in essence, relate to his strong negative reaction to management and supervision in the workplace. The issue arising here, however, is the determination by the Respondent that, notwithstanding compensating Mr Huynh for many hundreds of sessions of massage therapy over many years, this treatment is no longer considered to be consistent with medical opinion, nor its Clinical Framework for the Delivery of Health Services (the Framework).
Mr Huynh represented himself at the Tribunal and did not lodge material beyond…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Huynh and Comcare (Compensation)

Details

AGLC: Huynh and Comcare (Compensation) [2024] AATA 1821
Case: [2024] AATA 1821
Decision Date: 20 June 2024

CaseChat Overview and Summary

This matter concerned an appeal by Mr Huynh against a decision by Comcare to deny ongoing liability for massage therapy treatment. Mr Huynh had an accepted claim for a psychological injury, specifically stress and anxiety, which had been diagnosed by various medical practitioners as an adjustment disorder with anxiety. The central dispute revolved around whether the ongoing massage therapy was reasonable treatment for his accepted condition, particularly in light of its cost and duration.

The Tribunal was required to determine whether the massage therapy treatment was reasonable in the circumstances, considering the nature and origins of Mr Huynh's muscle tension and the overall clinical framework. This involved assessing the weight of expert medical opinions regarding the diagnosis of Mr Huynh's condition, the causal link between his employment and his symptoms, and the efficacy and appropriateness of massage therapy as a treatment modality. The Tribunal also had to consider Comcare's arguments that the treatment was of indeterminate duration, not promoting self-management, and not recommended under clinical guidelines.

The Tribunal found that the expert opinion regarding Mr Huynh's condition was more nuanced than Comcare's interpretation. While acknowledging Comcare's concerns about the cost and objective verifiability of the benefits of massage therapy, the Tribunal noted a unanimous expert consensus on the causal link between Mr Huynh's mental health condition and his workplace experiences. The Tribunal considered that the duration of adjustment disorders could be chronic, as indicated by some expert opinions, and that the specific diagnosis of Mr Huynh's condition was subject to variation among specialists.

Ultimately, the Tribunal set aside Comcare's decision and remitted the matter for reconsideration. The Tribunal found that, as at the date of the decision under review, massage therapy was reasonable treatment in respect of Mr Huynh's injury. However, due to the absence of evidence from treating professionals regarding his current specific therapeutic needs, a fresh evidence-based decision was required.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue for determination is whether Mr Huynh is entitled to ongoing massage therapy treatment.EVIDENCEAccepted claim Mr Huynh’s claim, dated 21 August 2006, in respect of psychological injury in the form of stress and anxiety cites symptoms of insomnia and depression (T3, 11). It was completed with the assistance of his GP Dr Merran Pang. A report to Comcare, dated 14 September 2006, by Dr Stella Kwong, Consultant Psychiatrist (T6), relates a recent history of workplace management issues and records Mr Huynh as complaining of ‘severe insomnia, headaches, anxiety, sore eye, numb head, etc’ (T6, 33). Dr Kwong diagnoses an adjustment disorder with anxiety (34), and recommends medication and supportive psychotherapy, noting that both were already in place (35). A report from Dr Pang, dated 10 October 2006 (T7), notes a history of consultations as a patient dating back to 1992, while providing a detailed summary of issues and symptoms arising in 2006. Symptoms included mental exhaustion, distress, lethargy, nervousness and vibrations/fine tremors (T7, 37). Dr Pang reports a diagnosis from a hospital emergency department of ‘acute anxiety state with panic attacks’, and proposes that Mr Huynh’s condition is a recurrence of work-related anxiety, from which he had already recovered in early 2005 (38). Dr Pang states further that she is ‘unaware of any other factors that may contribute to his condition which are unrelated to his employment’. A report to Centrelink by Dr Les Ding, Consultant Psychiatrist, dated 18 October 2006 (T8) also records a suite of psychological and emotional symptoms following the failure of Mr Huynh’s return to work program. Dr Ding summarises the symptoms as primarily anxiety and agitation, with possibly a slight degree of depression, and reactivity reaching a state of hyperarousal (T8, 46). The diagnosis given is adjustment disorder with anxiety symptoms (47). A report to Comcare by Dr Anthony Sheehan, dated 26 October 2006 (T9), states that Mr Huynh is severely disabled and requires weekly consultations with his psychologist and ongoing medication (T9, 60). Dr Sheehan states that a definitive diagnosis of the Applicant’s specific mental health condition was not yet possible. I add to this summary, briefly, that material lodged in this matter that addresses Mr Huynh’s prior accepted claim reflects a similar pattern of psychological symptoms and mood disturbance. The report of Dr Peter Smith, Consultant Psychiatrist, dated 21 September 2004 (T4) provides a diagnosis of adjustment disorder with mixed disturbance of emotions and conduct (T4, 25). Dr Smith records a background of generalised anxiety, worrying and ruminative thinking.Massage therapy and other diagnoses It appears that the first documented reference to massage as a therapy is in a report of Dr Pang, dated 10 October 2008 (T22). In a passage summarising treatment by various practitioners during 2007, Dr Pang – apparently quoting from another source – states: ‘[h]e complained of headaches and “sore muscles everywhere due to chronic tension” … He was advised by Dr Kwong to try massage’ (T22, 98). Context suggests this may be a reference to a report from Dr Ding after a review on 20 September 2007, but I have been unable to locate such a report in the materials.

Decision

Reasons for decision

Accordingly, I find that the Applicant was entitled at the time of the decision under review to massage therapy. However, the decision under review involved a tapering schedule of treatment and his regime of therapy is a matter of medical opinion. Therefore, I consider the correct and preferable decision in the circumstances, without having had the opportunity to hear evidence from treating professionals about Mr Huynh’s needs, is to set aside the decision and remit it in accordance with my findings. In this way, an evidence-based decision may be arrived at as to his current specific therapeutic needs.DECISION For the reasons given above, the Tribunal sets aside the decision under review dated 10 March 2023 and remits it for reconsideration in accordance with the direction that as at the date of the decision under review, massage therapy was reasonable treatment in respect of the Applicant’s injury.

Ratio Decidendi

Legal Principle Established

With respect to the question of whether massage treatment is reasonable, the Respondent’s final submissions highlight and summarise the wide range of opinion that supports the provision of this treatment [35]. The submission then summarises the view of A/Prof Khalid, before contending that his opinion should be given greater weight [36]-[41]. The Respondent also outlines a body of decision making to inform certain propositions [42] (which I summarise):[2] (a)Mr Huynh has received compensation for 488 sessions of massage or myotherapy over many years at a cost of $39,620, with a likely ongoing cost of $3,000 annually;(b)subjective evidence adduced by the Applicant indicates the treatment reduces symptoms of his accepted injury, but this is not independently verifiable;(c)the cost is high and the benefits cannot be objectively assessed and, accordingly, the cost outweighs the benefit;(d)the treatment has become of indeterminate duration and has not promoted self-management; and(e)it is not recommended treatment under clinical guidelines and does not fall within the Clinical Framework.[2] Comcare Australia v Rope [2004] FCA 540; Rope and Comcare [2018] AATA 42; Smith and Comcare [2018] AATA 2901 (Smith). CONSIDERATION Having reviewed the medical evidence, I consider that the better view is that – taken overall – the expert opinion is more nuanced than the interpretation placed upon it by the Respondent. Considering only the views of psychiatrists, it is A/Prof Khalid alone that maintains the view that Mr Huynh suffers exclusively from PTSD. Even in this opinion, I note that this expert accepts secondary symptoms of anxiety and depression. Dr Kwong refers to both PTSD and adjustment disorder in her January 2023 report, as does Dr Chambers in his August 2022 report. Dr Redmond specifically excludes the diagnosis of PTSD, and adopts the view that Mr Huynh’s adjustment disorder is chronic. I do not entirely exclude from this analysis the earlier reports of Dr Ding (2006) and Dr Smith (2004). However, these were prepared prior to the emergence in the medical reports of a narrative concerning the Applicant’s experiences in Vietnam before coming to Australia. In fact, Dr Smith notes no prior experiences of trauma in Vietnam. In any event, there is no dispute across the expert opinion that there is a relevant causal link between Mr Huynh’s mental health condition and his experiences in the workplace. This view is unanimous and consistent, whether the emphasis is upon PTSD, or an adjustment disorder. It is not clear to me, therefore, even in circumstances where I was to accept the Respondent’s core argument about causality, what the significance is of A/Prof Khalid’s primary conclusion. I understand that A/Prof Khalid has a clinical view about the duration of adjustment disorders in general. However, I also have before me the opinion of a similarly qualified expert that Mr Huynh has a chronic adjustment disorder. A hearing on the papers removes the possibility for further exploration of diagnostic variations of this kind.