Huynh and Comcare (Compensation)
[2024] AATA 1821
•20 June 2024
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 the application for review. The Applicant indicated to the Tribunal that his mental health condition prevented him lodging substantive material. Accordingly, I conducted a telephone directions hearing on 4 April 2024 to determine, in consultation with the parties, the future management of the matter. It was mutually agreed at this time that the matter could be determined in the absence of the parties, under s 34J of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
The Respondent lodged the following materials:
(a)documents pursuant to s 37 of the AAT Act (T);
(b)Statement of Facts, Issues and Contentions, dated 15 March 2024 (SFIC);
(c)Hearing Bundle (HB) in three volumes (numbering nearly 1,000 pages) and including extracts from summonsed documents; and
(d)Submissions to Assist the Tribunal to Reach a Decision under s 34J of the AAT Act, dated 16 May 2024.
LEGISLATION
The basis for all forms of compensation under the SRC Act, is liability for an injury that results in death, incapacity for work, or impairment (s 14). An injury is defined as a disease, injury, or aggravation of an injury that arose out of, or in the course of, a person’s employment (s 5A). A disease is defined as an ailment, or an aggravation of an ailment, that was contributed to, to a significant degree by employment (s 5B).
Where liability is determined to exist, under s 16(1) of the SRC Act 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 for that medical treatment.
The term ‘medical treatment’ is in turn defined in s 4 of the SRC Act to mean:
(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;
…
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be;
…
‘Therapeutic treatment’ is, in turn, defined in s 4 as including ‘an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury’.
The Comcare website includes a page with information described as ‘Guidance on applying the SRC Act’, and said to promote consistent decision making.[1] A document headed ‘Scheme Guidance’ and titled ‘Applying the Clinical Framework to Assess the Reasonableness of Medical Treatment’ can be found via this webpage. This might then be taken to be policy to which the Tribunal may have recourse consistent with the decision in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.
[1] accessed 24 May 2024.
This Scheme Guidance therefore refers to the Framework relied upon in the decision under review (HB1). This is a document to which a large number of state, territory and federal institutions subscribe, and which sets out principles intended to support healthcare professionals and administrators in treatment of an injury (HB1, 5). The principles are as follows:
1. Measure and demonstrate the effectiveness of treatment
2. Adopt a biopsychological approach
3. Empower the injured person to manage their injury
4. Implement goals focused on optimising function, participation and return to work
5. Base treatment on the best available research evidence
ISSUES
The issue for determination is whether Mr Huynh is entitled to ongoing massage therapy treatment.
EVIDENCE
Accepted 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.
The same report of Dr Pang goes on to describe Mr Huynh receiving massage treatments presumably, from context, during late 2007 (T22, 98). These are said to have been ‘very beneficial’ and to have improved his sleep and his feelings of tiredness and exhaustion, although Dr Pang notes, however, the Applicant stated his muscles still tense up.
Correspondence from Dr Pang, dated 7 April 2009 (T27, 107) represents a request for myotherapy treatment for My Hyunh, described as follows:
… to aid in the reduction of muscle tension/cramps and tightness, causing extensive muscular pains and headaches. His muscular tension and tightness and headaches are due to anxiety/panic attacks; all related to his compensable condition. He was approved for these treatments in 2007 and 2008.
As noted above, liability was specifically accepted for myotherapy massage, and this is found in a decision of the Respondent dated 13 April 2010 (T30). This decision accepts liability up to and including 12 May 2010.
A report by Ms Antoinette Butler-Wilks, psychologist, dated 18 August 2011 (T34) records that Mr Huynh ‘receives valuable benefit from receiving massage which alleviates the physical manifestations of his anxiety’ and that he did not wish to be seen by Comcare to be abusing this support (T34, 131). This therapy sits within other supports being visits to his GP, a psychiatrist, and his psychologist, and the report is otherwise strongly focused on these aspects of his condition.
A further report of Dr Pang, dated 6 May 2013 (T36), confirms that the Applicant had received massage treatment since November 2007 (T36, 139). This is described as being in relation to muscular tension, tension headache and ‘muscular pains and stiffness due to anxiety/panic symptoms’. These physical symptoms were described by Mr Huynh as exacerbating his insomnia, leading to an increase in analgesics, sedatives and anxiolytics. The sessions had reduced over time but were important to maintain the status quo. Dr Pang states explicitly:
a/ Massage treatment can be very helpful in the treatment of acute pains such as that associated with muscular tensions in Mr Huynh’s case, caused by anxiety/panic symptoms.
b/ Mr Huynh requires the massage treatment due to his condition of anxiety, causing considerable physical symptoms such as acute muscular pain/stiffness and tension headaches, Therapeutic values of these treatments have improved his quality of life such that he can manage his activities of daily living and reduce the use of medications (sedatives/anxiolytics).
…
Georgia Lagoudakis, remedial massage therapist, reported on 13 May 2013 (T37) that she had been treating Mr Huynh since April 2009. Relevantly, she states that the main areas of attention are the Applicant’s neck, shoulders, upper and middle back and at times, lower back. She states that when there is a gap between treatment of more than three months, the Applicant becomes very anxious, doesn’t think clearly, and gets agitated, nervous, and finds it hard to breathe.
In a report dated 3 March 2016, Dr Kwong appears to be providing a summary of Mr Huynh’s mental health in relation to a matter not connected with his compensation claim (T41). In this report she describes the Applicant as having a history of trauma in Vietnam prior to his arrival in Australia, including from arrest and interrogation by local police (T41, 157).
Dr Erin Redmond, Consultant Psychiatrist, provided a report to Comcare dated 8 March 2017 (T43) and provides a diagnosis of ‘adjustment disorder with anxiety (chronic)’ (T43, 167). She states that Mr Huynh relies upon his psychologist, psychiatrist and myotherapy (169) and because the Applicant is a very distressed man, he requires a structured regime of these treatments in order to function.
In a supplementary report, dated 5 April 2017 (T45), Dr Redmond addresses massage therapy by request. At this point, the Applicant had received some 250 sessions of treatment since November 2011. Dr Redmond rejects a diagnosis of PTSD and affirms a diagnosis of adjustment disorder with anxiety (T45, 177). She states that anxiety symptoms can be manifested in increased muscle tension, and that myotherapy can be a very helpful treatment. While accepting that quantitative assessment of massage treatment has not been reported on, Dr Redmond notes:
With regards to an evidence base for the efficacy of myotherapy in the treatment of the physical sequalae of anxiety, there is plenty of evidence in complementary medicine journals that suggest the usefulness of remedial massage/myotherapy in treating certain chronic anxiety conditions that manifest as pain …
In a report to Comcare, dated 20 December 2021 (T46), Dr Kwong provides a diagnosis of PTSD with predominant depression, anxiety, intrusive memories easily triggered causing panic, insomnia, muscle tension and impulsive behaviour (T46, 182). Dr Kwong accepts that an association was made by Mr Huynh with his treatment in the workplace and prior experiences of trauma in Vietnam, before his arrival in Australia (183). She also states that his sedative use has significantly decreased, and that he continues to depend upon massage to help muscle relaxation (184). She goes on to refer to presentation of anger and aggression, but that Mr Huynh discovered that ‘deep muscle massage was able to reduce his muscle tension and so he could manage his mental agony and homicidal ideation without too much medication …’. Dr Kwong states that massage has helped to reduce psychological support and counselling and, furthermore, that without massage every ten days, his medication would have to be increased to an addictive and problematic level (185).
Ms Butler-Wilks reported on 18 February 2022 (T48) that massage continues to be reasonable treatment (T48, 197). This treatment has helped to reduce a range of symptoms associated with PTSD including physical tension and a range of emotional and behavioural problems. She adds that the Applicant needs structure and routine in order to function, citing also Dr Redmond in this respect.
Writing to the Respondent on 25 February 2022 (T49), Dr Pang states that Mr Huynh’s present diagnosis is PTSD (providing a number of supporting justifications). However, she also reports the diagnosis of Dr Kwong in 2017 of adjustment disorder, which is described as chronic. She notes the provision of massage therapy since 2007, stating her belief that without this treatment, ‘his condition would be further aggravated such that it will precipitate a crisis’ and the need for more medication (T49, 204).
A Comcare Clinical Panel Review was concluded on 10 May 2022 (T50) and included consultation with Dr Kwong, and with a particular focus on the use of remedial massage. It appears this led to an independent medical examination, being the report of Dr Scott Chambers, Consultant Psychiatrist, dated 23 August 2022 (T52). Current symptoms described by Mr Huynh are reported to include tiredness and muscle tightness, irritability and nightmares (T52, 223). Dr Chambers states that available material suggested delayed onset of PTSD and that the Applicant presented with an anxious, irritable affect with period of distress consistent with PTSD and unresolved symptoms of an adjustment disorder with anxiety (222). The writer accepts that PTSD appears to have its origins in the Applicant’s experiences in Vietnam prior to his arrival in Australia, but Mr Huynh came to associate treatment in the workplace with those experiences.
In respect of Mr Huynh’s treatment, Dr Chambers states that psychological support and medication are appropriate and that the Applicant ‘experiences benefit from symptoms of muscle tension with the massage therapy/myotherapy’ (227). He considers the frequency of psychology and massage to be appropriate, recommends their continuation, and considers this to be so for the foreseeable future. Dr Chambers also states that the symptoms are chronic and unlikely to be resolved to the point of self-management (228).
A report from Dr Kwong, dated 25 January 2023, was submitted by Mr Huynh as part of his request for reconsideration of the Respondent’s original determination (T56 c)). Dr Kwong observes that it is ‘universally agreed’ that the Applicant suffers from ‘Adjustment Disorder with Anxiety and Reactivated Post Traumatic Stress Disorder’ (T56 c), 257). I also note here aspects of the report also referred to by A/Prof Khalid being: Dr Kwong’s observation that anxiety affects different people differently and that when muscles are affected they go into spasm. In the Applicant’s case it causes ‘severe muscle tension which is painful and disabling’ and which triggers bad memories leading to more anxiety, and only deep tissue massage assists (T56 c), 257-258).
Ms Butler-Wilks prepared a report, dated 27 January 2023, also submitted in the reconsideration request (T56 d)). She again refers to Mr Huynh experiencing symptoms of PTSD and refers to the combined treatments of psychology sessions and massage therapy/myotherapy. Ms Butler-Wilks states that when triggered, the Applicant experiences ‘intense or prolonged psychological distress, sleep disturbance, and marked physiological reactions to internal or external cues’ (T56 d), 260). She also notes Mr Huynh’s reports of the benefits obtained from massage.
Ms Butler-Wilks refers to the opinions of others, including Dr Chambers about the benefit of massage therapy and goes on to address clinical literature on the subject (T56 d), 261). In summary, Ms Butler-Wilks states there is ‘small but growing research and literature on neurophysiology (Kerr, F et al, 2019), somatosensory techniques not only for PTSD but also on anxiety (Sherman, K et al, 2010) and cancer/palliative care …’. She then refers to a report of the Australian Psychological Society investigating the response to rising stress levels, including the use of massage, and notes other literature concerning massage therapy and emotional regulation.
Dr Pang prepared a report, dated 6 February 2023 (T56 b)) which was also submitted by the Applicant as part of his request for reconsideration of the Respondent’s original determination. I note in particular (T56 b), 256):
Deep tissue massage therapy relieves My Huynh’s muscle tensions, exterior muscular pain. It is an effective tool at alleviating symptoms of anxiety with reduction in adrenaline and control levels, and release of endorphins. This can improve sleep, cognitive function, reduce depression, fatigue, pain etc. There is anecdotal evidence of benefits for Mr Huynh: he describes sleeping better, feeling muscles “relaxed”, less aggression, reducing the need for anxiolytics etc.
In conclusion, massage therapy will not cure his psychiatric condition, but it is an effective tool at alleviating some of the worst manifestations of symptoms of anxiety. This reduces cortisol levels, relieves tightness in muscles, and provides a peaceful space for relaxation, slowing his heart rate and breathing, provides an opportunity for him to practise mindfulness in a calming environment, which reduces signs and symptoms of anxiety.
I am very concerned that weaning his massage therapy sessions will be detrimental to his mental health with further deterioration of his psychiatric condition.
Dr Pang prepared a written statement, dated 11 July 2023 (HB7, 886) that identifies the following medications as having been prescribed for muscular pain since 2010: Panadeine; soluble Aspirin; Voltaren gel; and Magnesium. She states these were reduced to minimal level with regular massage, and some improvement in his psychiatric condition in 2019. Dr Pang also states the increased interval between massages since 2023 has exacerbated his muscular pains.
Associate Professor Khalid
A/Prof Khalid, Consultant Psychiatrist, wrote a report as an expert witness, dated 4 January 2024 (HB4). It is stated to be based upon file material and did not include clinical examination of the Applicant. A substantial part of the report consists of extracts from existing medical reports (HB4, 31-46). Those parts of Dr Pang’s February 2023 report cited by A/Prof Khalid (HB4, 42) include several misquotations. One in particular is the inclusion of a negative where none appears in the original (stating that massage therapy ‘is not an effective tool’, compare with passage at [37] above). A/Prof Khalid also refers to Ms Butler-Wilks’ 2023 report but does not appear to have extracted or referred to the reference material that she cites and noted above.
In response to specific questions, A/Prof Khalid states, in summary:
(a)an appropriate diagnosis for Mr Huynh is chronic PTSD with secondary symptoms of anxiety and depression, given that adjustment disorders are unlikely to continue for years;
(b)Mr Huynh had a pre-existing vulnerability to PTSD and work-related stress precipitated its development;
(c)it appears that massage treatment is being provided for PTSD although the accepted condition is adjustment reaction with anxious mood;
(d)the Applicant’s massage therapist notes that symptoms improve with treatment but his is not documented through measurement tools;
(e)a biopsychosocial approach is being adopted with treatment by Psychiatrist, Psychologist, GP and massage therapy;
(f)given the frequency of ongoing massage since injury in 2006, the writer does ‘not consider that the treatment has sufficiently empowered [Mr Huynh] to self-manage his injury’; and
(g)with respect to whether massage falls within the Clinical Framework (HB4, 48):
Massage treatment is not recommended in any reputable psychiatric treatment guideline for either adjustment disorder or post-traumatic stress disorder. It is an alternative therapy and the research is available in complementary journals but not in the mainstream psychiatric journals.
I note that the Royal Australian and New Zealand College of Psychiatrists refer to the Australian Guidelines for the prevention and treatment of acute stress disorder, post-traumatic stress disorder and complex post-traumatic stress disorder by Phoenix Australia. There is no mention of massage treatment in these guidelines. Therefore I do not consider that the massage treatment would fulfil the criteria for the Clinical Framework …
Other medical material
A report by Dr Terrence Lim, Consultant in Rehabilitation Medicine and Pain Management, dated 16 March 1998 (HB2), was sent to Dr Pang in relation to a consultation about ‘persistent right-sided upper thoracic and bilateral low back pain’ (HB2, 25). Dr Lim notes a prior history of three motor vehicle accidents being in 1988, 1993 and 1996. In essence, he reports that pain associated with these accidents all resolved with treatment such as physiotherapy.
On examination there was some tenderness in the trapezius but neurological examination was within normal limits. Dr Lim opines that Mr Huynh’s discomfort arises from Myofascial Pain Syndrome: ‘a muscular problem that is caused by muscle strain and results in persistent, hyper-irritable, taut bands of muscle spasm’ (HB2, 26). Trigger point injections with local anaesthetic and stretching were recommended.
A report to Dr Pang by Dr Christine Le, Consultant Rheumatologist, dated 16 September 1999 (HB3), was in respect of ‘a long standing history of pain over the right dorso scapular region’ said to date back the early 1980’s possibly in relation to car accidents. On examination a tender spot over a region of the scapula was identified and treated.
I also note the record of Mr Huynh’s admission at the Emergency Department at Western Hospital Footscray on 18 November 2004 (HB7, 946). Symptoms on presentation were described as a ‘bizarre constellation’ including numbness of the right upper face and ‘right upper limb muscle aches and pains’. Examination is described as ‘completely unremarkable’ and the neurological examination in particular as normal.
SUBMISSIONS
Mr Huynh provided a statement in support of his application (T1, 3). He submits that a combination of treatments were approved by his treating doctors and various specialist medical examiners. He identifies the following changes to his regime:
(a)GP: reduced from one session a week to one session every eight weeks;
(b)Psychiatrist: reduced from one session a week to one every four weeks;
(c)Psychologist: reduced from one session a week to one every eight weeks;
(d)Massage: reduced from one session every five days to one every ten days; and
(e)Independent medical examination: reduced from one to two examinations every year (2006-2009) to examinations in March 2017 and August 2002.
The Applicant states that his treatment was recommended by Dr Chambers (report of August 2022) and Dr Redmond (report of February 2017) and, that accordingly he requires massage therapy every 7-10 days. Mr Huynh also cites in support a number of medical reports, all of which are included in the material lodged in this matter, and upon which he also relied at the time of the decision under review.
Relevantly, the Respondent’s SFIC somewhat broadens the scope of inquiry into issues under consideration [37]-[39]. It is contended that massage treatment is in respect of either or all of, Mr Huynh’s prior motor vehicle accidents, or PTSD, neither of which are compensable [41]-[43]. It is contended in the alternative that the treatment is not reasonable in view of the Clinical Framework [44]. In support of this, it is submitted that [47]:
(a)after more than 450 sessions of massage or myotherapy since 2009 the cost of continuing treatment outweighs its benefit;
(b)the treatment is not recommended for treatment of certain serious mental health conditions; and
(c)massage treatment provides only short-term relief and it treats symptoms that do not form part of the compensable condition.
In its final submissions, the Respondent contends that there is evidence to sustain a finding that massage is not being obtained in relation to the accepted injury [25]. This is supported primarily by reference to a range of medical material, said to reflect the ‘predominant opinion’ that Mr Huynh suffers from PTSD: A/Prof Khalid (HB4) [18]; Dr Redmond (T43, T45) [19]; Dr Kwong (T46) [20]; and Dr Chambers (T52, T53) [21]-[22]. It is also supported by the contention, noted above, that Mr Huynh had been involved in car accidents, and that these ‘may’ be the cause of muscle tightness resulting in a need for massage therapy [25, d]. Here reliance is placed upon the report of Dr Lim (HB2) [23], and Dr Le (HB3) [24].
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.
Nonetheless, while I accept that PTSD with anxiety and an adjustment disorder with anxious mood are different conditions, I do not consider them to be referrable to demonstrably different injuries. It is well accepted in this jurisdiction that decision making is to be undertaken with awareness of the evolution of validly made claims, and acceptance that medical diagnoses may evolve over time (see for example Ellison v Comcare [2022] FCA 95, at [141] and the various authorities cited there).
Furthermore, with respect, I do not read A/Prof Khalid in his report as engaging directly with the specific and quite particular nature of the symptoms said to lead to a need for massage therapy. Mr Huynh is described by his treaters as possessing a suite of mental and physical symptoms that are interrelated. The evidence speaks to a possibly unusual but well described and clear connection between psychological treatment, medication and massage therapy, all rooted in his underlying condition. Therefore, again, I do not consider anything meaningfully arises from the emphasis upon PTSD in the Respondent’s submissions.
While I accept that A/Prof Khalid references relevant clinical guidelines when discounting the relevance of massage therapy, the issue is that he does not take account, as I have noted, of the opinions given as to the need to treat the physical symptoms of a mental health condition. His reporting also does not address the literature cited, specifically by Ms Butler-Wilks. It may well be that a clinical guideline supported by a relevant professional body should be given more weight than emerging literature. However, this is to ignore the larger issues I have highlighted that arise from reliance upon A/Prof Khalid’s opinion.
For the reasons I have given, I consider the Respondent’s primary submission does not succeed. It is strictly not necessary now to deal with the subsidiary arguments. However, for completeness, I find that the theory raised with respect to Mr Huynh’s earlier medical history and involvement in motor vehicle accidents not to be convincing, on the material provided. This is for two reasons. First, the Applicant’s medical evidence, as I have noted, identifies a specific link between his ongoing mental health condition and particular physical symptoms. Second, the limited evidence about the impact of these accidents suggests that he recovered from any resulting pain.
With respect to the contribution of the Framework, this document contains broad principles that are provided by way of guidance only. To the extent that it recommends measurement using ‘standardised outcome measurement tools’ (HB1, 7) no relevant tool has been advanced in evidence or submissions. Again, this may have been the kind of issue that could have been explored in more detail at a hearing.
Certain broad measures are used as examples (HB1, 8), and the evidence in this matter demonstrates to my satisfaction that Mr Huynh is being assisted by treatment to maintain a precarious lifestyle status quo. He is also not able to return to work, upon the evidence, and therefore hours or participation are irrelevant. For the same reason, I consider the guidance about self-management (HB1, 13) and goals (HB1, 17) to be of limited value in the particular context of this Applicant. I have addressed above the question of whether there is an evidence base (see Framework, HB1, 19) for the use of massage therapy.
That said, there is a rough form of measurement that emerges from the medical evidence. While not quantified in great detail, there is consistent evidence, which was uncontested and which I accept, that the massage therapy has the effect of reducing both psychological and pharmaceutical treatments.
In response to the contentions about value for money, my calculations based on the numbers contained in the Respondent’s submissions suggest that the average cost per massage session historically has been in the order of $80.00. Assuming that cost and benefit are a relevant consideration to the reasonableness of treatment, there is no evidence before me as to comparative costs of this treatment, related treatments, alternative treatments, or the raw cost of psychological and pharmaceutical therapy that form the balance of the Applicant’s treatment regime. Accordingly, it is difficult to make any specific finding with respect to this issue.
I accept that in this jurisdiction evidence is sometimes given to the effect that physiotherapy is not clinically indicated as appropriate over the long term. This evidence has been given in hearings before me, and in other matters (see for example Alamos v Comcare [2014] AATA 629, at [39]). On the other hand, the Tribunal has also found previously that massage therapy that plays a ‘palliative’ role and ‘facilitates functionality and participation in day-to-day activities’ can be considered reasonable, and not contrary to the Framework (see Smith).
CONCLUSION
There has been no dispute in this matter as to whether massage therapy can be considered medical treatment for the purposes of the SRC Act. The issue is whether it is obtained in respect of an accepted injury, and is reasonable in the circumstances.
I have found above that I consider Mr Huynh to be receiving this therapy in respect of his compensable injury. I have also found that it is well supported by relevant medical opinion.
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.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
..............[SGD]..............
Associate
Dated: 20 June 2024
Solicitor for the Respondent: Kate Watson Solicitors for the Respondent: HBA Legal
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