Jenkins and Comcare

[2006] AATA 413

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 413

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2005/151

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BRONWYN JENKINS

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date12 May 2006

PlaceCanberra

Decision

The decision under review is varied to the extent that, consistent with these reasons, Comcare’s liability to compensate the Applicant for medical treatment in relation to her compensable injury did not cease on 22 March 2005 and is presently ongoing.

Comcare is to pay the Applicant’s reasonable costs in these proceedings as agreed or taxed.

..............................................

Mr S. Webb, Member

CATCHWORDS

COMPENSATION - 1991 spinal injury - liability accepted - amplification of symptoms following childbirth in 1995 - diverse pain symptomatology - Tribunal decision 1999 compensable incapacity - cessation of compensation for incapacity and medical treatment 2005 - no claim for incapacity - ongoing effects of injury – decision varied

Safety, Rehabilitation and Compensation Act 1988 ss 4, 16, 19, 67

Administrative Appeals Tribunal Act 1975 s 33

Re Jenkins and Comcare [1999] AATA 338)

Australian Postal Corporation v Oudyn (2003) 73 ALD 659

Re Liu and Comcare (2004) 79 ALD 119

Re Lewis and Comcare [2000] AATA 158

Morales v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 51

Re Quin and Australian Postal Corporation (1992) 15 AAR 519

Re Matusko and Australian Postal Corporation (1995) 21 AAR 9

Comcare v Watson (1997) 73 FCR 273

Bashar v Comcare (2002) 69 ALD 784

Re Lonsdale and Comcare (2004) 80 ALD 220

Re Popovic and Comcare (2000) 64 ALD 171

Re Websdale and Telstra Corporation Limited [2005] AATA 264

Re Chowdhary and Comcare [1998] AATA 13003

REASONS FOR DECISION

12 May 2006 Mr S. Webb, Member         

1.      By this application Bronwyn Jenkins is seeking review of the decision made by Comcare, and affirmed by an Independent Review Officer, to cease payment of compensation for incapacity and medical treatment expenses in relation to a work-related injury in 1991.

2.      The matter came on for hearing in Canberra on 3 and 4 May 2006.  Mrs Jenkins was represented by Mr Lunney, counsel, and Comcare by Ms Walker, counsel.  Mrs Jenkins, Dr D. McGrath, Dr M. Wearne and Dr N. McGill gave oral evidence.  Materials were tendered and labelled during the hearing.

factual context

3. It is not in dispute that Mrs Jenkins was injured at work when she fell from a stool on 19 November 1991. She was employed as a Level 1 teacher at the Stirling College by the ACT Department of Education at the time. Comcare accepted liability to pay compensation in relation to that injury on 3 February 1992. By 1994 Mrs Jenkins was working 80 percent of her pre-injury hours and continued to do so until 1 March 1996, when she commenced maternity leave. On 19 April 1996 she gave birth to her daughter, Sarah, by caesarean section. Subsequently she suffered a significant amplification of her symptoms.

4.      On 21 May 1999 the Tribunal decided that Mrs Jenkins suffered an incapacity for work as a result of her compensable injury, which was ongoing at that time (Re Jenkins and Comcare [1999] AATA 338). In those proceedings the Tribunal reviewed the medical evidence placed before it and found that (paragraphs 30 and 33):

“… the weight of the medical evidence … suggests that the applicant suffered genuine physical pain both before and after the birth, resulting from the injury, and therefore [the Tribunal] finds that it accepts the second proposition [that the applicant suffers real physical pain, and that the pain post childbirth was an exacerbation or extension of the pre-existing pain which arose from the 1991 injury, and that her incapacity during the relevant period is therefore related to the injury] as being valid.  [The Respondent] submitted … that as no doctor had been able to find a physical or neurological diagnosis of the applicant’s symptoms, it was mere conjecture to assert that the applicant’s condition was based on a real physical condition.  The Tribunal is satisfied with the explanation provided by Dr McGrath and Dr Billett however, that MRI scans and other tests are not infallible, and that the absence of a neurological diagnosis does not mean that the applicant’s condition is not a real physical condition.  The Tribunal is satisfied that the combination of the applicant’s presentation on examination to various doctors, presentation to the Tribunal, genuine motivation for work, and consistent history of description of pain, constitutes enough evidence to take the diagnosis of a real physical cause of the applicant’s symptoms out of the realm of conjecture, and into the realm of being a reasonable diagnosis satisfied on the balance of probabilities.”

5.      In the period following the Tribunal’s decision to the present Mrs Jenkins continued to complain of pain in various parts of her body.  She consulted her general practitioners (Drs Yeung and Lawrence) and Dr McGrath (treating specialist since 1992), and obtained treatment in the form of pharmaceutical medication (Endone and Panadeine), physiotherapy, massage and swimming. Comcare determined that Mrs Jenkins was entitled to compensation for medical treatment expenses in relation to her compensable injury, as follows:

DATE  TREATMENT  REF
29 January 2000  Physiotherapy  T70
6 February 2001  Swimming  T77
13 November 2002  Treating doctors and related pharmaceuticals  T79

6.      On 22 March 2005 Comcare determined that Mrs Jenkins was no longer entitled to compensation for incapacity and medical treatment expenses (T86).  On 11 May 2005 an independent review officer reconsidered and varied the determination on the basis that Mrs Jenkins had no present entitlement to compensation for incapacity or medical treatment expenses at that time (T91).  That decision is before the Tribunal in these proceedings.

issues for determination and legislation

7.      Mr Lunney informed me that Mrs Jenkins has no present claim for incapacity arising from her injury during the period from 22 March 2005.  That aspect of the reviewable decision is not challenged therefore.

8. The issue in contention is whether Mrs Jenkins is entitled to compensation for medical treatment expenses in relation to her ongoing pain symptomatology. However, there is no present claim for compensation for medical treatment expenses arising from particular treatment obtained by Mrs Jenkins. The primary determination and the reconsideration decision are directed, generally, to curtail Comcare’s liability to pay compensation to Mrs Jenkins under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). However, Comcare will remain liable to pay compensation under the Act in relation to Mrs Jenkins’ injury during periods when that injury results in incapacity or impairment, or the injury is productive of symptoms that require medical treatment (Australian Postal Corporation v Oudyn (2003) 73 ALD 659; Re Liu and Comcare (2004) 79 ALD 119).

9. The Act provides that Comcare is liable to pay compensation to an injured employee in such amount as is appropriate for medical treatment reasonably obtained by the employee in relation to the injury, whether or not the injury results in incapacity or impairment (subs 16(1) and (2)). Thus, in Mrs Jenkins’ case, the question to be answered is whether the medical treatments she obtained from 22 March 2005 to the present were in relation to her compensable injury.

10.     Questions that would usually follow in cases such as this, concerning the medical character or reasonableness of specific treatments obtained (and related issues of cost), have not been considered by primary or reconsideration decision makers, and are not, therefore, properly before the Tribunal in these proceedings.  Ms Walker urged me to consider making factual findings in relation to issues concerning the particular treatments that Mrs Jenkins obtained, even though there is no jurisdiction to determine those issues.  However, the Tribunal does not exercise powers at large and must confine its attention to matters that are properly placed before it.  It is not for the Tribunal to exceed its jurisdiction in a quest for efficiency.  It is one thing to determine, generally, that an injured employee does not have a present entitlement to compensation for medical treatment expenses purportedly because the injury has resolved and no longer requires medical treatment, as has occurred in this case.  It is an entirely different thing to determine that specific treatment obtained by an injured employee either was or was not medical treatment that it was reasonable for the employee to obtain in the circumstances.  If Mrs Jenkins makes a claim for compensation in respect of the cost of specific medical treatment, it will be necessary for Comcare to determine the claim on the merits at the time. 

11. Nevertheless, I am sympathetic to Ms Walker’s desire to ensure efficiency in the processing of compensation claims, especially with a view to minimising further litigation on points of disputation that may arise between the parties in relation to future claims that may be lodged under s 16 of the Act. This case exemplifies the desirability of ensuring that litigation is not conducted in a piecemeal manner in relation to a particular dispute. In these proceedings Comcare has contended that particular treatments obtained by Mrs Jenkins are not medical treatments that it was reasonable for her to obtain in the circumstances. Thus, if Mrs Jenkins makes a claim for compensation in relation to any such treatment, it can be expected that further disputation will arise. The Tribunal cannot pre-empt any such litigation. To do so would not be consistent with the rules of procedural fairness and may deny natural justice to Mrs Jenkins. Even so, to the extent that I am able to make findings of fact in relation to the issues ventilated in these proceedings concerning specific treatments obtained by Mrs Jenkins, those findings follow. I note that evidence was adduced from medical witnesses in relation to these issues by both parties.

consideration

12.     Making this decision I have carefully considered all of the evidence, the submissions of the parties, the relevant caselaw and legislation.  I note that the evidence included a large volume of medical reports, many of which pre-dated the previous decision of the Tribunal in May 1999.  I have considered that material. 

13.     In May 1999 the Tribunal reviewed the medical evidence concerning Mrs Jenkins’ symptoms in the context of incapacity and found that her pain symptomatology at that time was the result of her compensable injury, as a result of which she was entitled to compensation for incapacity.  No compelling evidence has been placed before me in these proceedings that the relevant findings made by the Tribunal in May 1999, to which I have referred, are not appropriate and should not be reapplied.

14.     The Tribunal has flexibility to determine its procedures under s 33 of the AAT Act and to prevent relitigation of matters previously determined.  In appropriate circumstances, however, it may decide to apply again or to disturb an earlier decision that was, at the time, determinative of a matter (Re Lewis and Comcare [2000] AATA 158). That is a matter of discretion (Morales v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 51 at 65-66).

15.     Principles appropriate to the exercise of the discretion to permit reconsideration of a previously settled matter were discussed in Re Quin and Australian Postal Corporation (1992) 15 AAR 519 at 526 and in Re Matusko and Australian Postal Corporation (1995) 21 AAR 9 at 20-21. Generally, a matter that has once been decided by the Tribunal should not be revisited or relitigated unless, with an eye to fairness and justice to the parties, and to the requirement for the Tribunal to make the correct or preferable decision, there is good reason to do so. I find no reason in this case to depart from those previously enunciated principles.

16.     Thus, consistent with the Tribunal’s previous decision, I find that on 21 May 1999 Mrs Jenkins’ incapacitating pain symptomatology was the result of her compensable injury.  At that time she was entitled to claim compensation for medical treatment expenses in relation to those injury-related symptoms. 

17.     Mrs Jenkins’ evidence, which I accept, was that her pain symptomatology has not changed significantly since 1999.  Her description of symptoms in these proceedings was consistent with the symptoms reported by Dr McGrath, Dr Wearne and, to a lesser extent, Dr McGill.  Those reports are also reasonably consistent with the symptoms recorded by the Tribunal in May 1999.

18.     However, the recent medical evidence diverges in relation to the cause of Mrs Jenkins’ pain symptomatology.  Dr Wearne and Dr McGill found no diagnostic indicators or physical cause to explain Mrs Jenkins’ condition and concluded that her present (undiagnosed) condition is not related to her employment (or her compensable injury) and no further treatment is warranted.   Both doctors commented on the unusual distribution of pain symptoms and accepted that Mrs Jenkins experienced pain.  Neither doctor was able to diagnose or explain Mrs Jenkins’ symptomatology over the last 15 years.  It is not disputed that Mrs Jenkins has a normal range of movement in her spine and limbs, and imaging and other investigations have not revealed any pathology to explain her presentation. 

19.     Dr McGrath gave evidence that modern imaging techniques are not infallible and may not distinguish all spinal pathology.  His evidence was that Mrs Jenkins has presented since 1992 as a person who is genuinely suffering pain, the most probable cause of which was the injury to her spine in November 1991.

20.     I prefer the evidence of Dr McGrath.  Dr McGrath has been Mrs Jenkins’ treating specialist since 1992.  Drs Wearne and McGill accepted that modern imaging techniques are not infallible and may not reveal all spinal pathology.  Furthermore Drs Wearne and McGill accepted that soft tissue injuries in some people do not always resolve within the expected or usual period (Dr Wearne: up to 2 years; Dr McGill: up to 8 weeks).  Neither Dr Wearne nor Dr McGill were able to identify when the effects (and symptoms) of Mrs Jenkins’ compensable injury ceased.  That is perhaps understandable as the medical records and reports reveal that Mrs Jenkins has complained of pain continuously since her injury in November 1991.

21.     I accept that Mrs Jenkins is genuine in her presentation and her complaints of pain.  The nature and extent of her symptoms have not changed significantly since May 1999.  The precise mechanism of her pain is not explained by the medical investigations that have been carried out over time.  The fact that her symptoms were exacerbated by pregnancy and childbirth does not break the causal chain between her compensable injury and her present symptoms.  There is no evidence that any subsequent events have intervened to break the causal chain or to cause her present symptoms.  Theorising in 2005 about the duration of Mrs Jenkins’ symptoms following her fall in November 1991 is not of assistance.  Plainly, Mrs Jenkins’ case is not described by terms such as ‘usual’ or ‘normal’.

22.     I am reasonably satisfied that it is more probable than not that Mrs Jenkins symptoms of pain from March 2005 to the present are the result of her compensable injury.  The precise mechanism of her painful condition is not fully understood.  However, I am satisfied that the causal nexus between her present symptoms and her compensable injury is established as a matter of probability rather than mere hypothesis or conjecture.  Her consistent complaints of pain since May 1999 (and since November 1991), the consistency of medical reporting of her presentation under medical examination over many years and the fact that she has continued to obtain treatment to alleviate her pain at her own cost since March 2005 are salient factors that indicate the continuing nature of her genuine symptoms.  These factors are consistent with my own assessment of her credibility as a witness and the genuineness of her complaints of pain.  On that basis I am reasonably satisfied that Mrs Jenkins’ compensable injury has continuing effect to the present.

23.     It follows, therefore, that Mrs Jenkins is entitled to claim medical treatment expenses in relation to her injury.  It is for Comcare to determine any claim concerning specific treatments obtained by Mrs Jenkins on the merits and in the circumstances.  However, in the circumstances it is appropriate to make some observations about modalities of treatment that have been the subject of evidence in these proceedings.

24.     On 13 April 1999 Comcare determined that compensation would not be paid for massage treatment obtained by Mrs Jenkins in relation to her injury after 10 July 1999 (T64).  Mrs Jenkins did not challenge that decision.   I note that the reasons given for that determination were substantially based on the expert opinion of Dr Nicholas, Director of the ADAPT Program at the Royal North Shore Hospital.  Dr Nicholas stated (T63, folio 164):

“Ms Jenkins should continue her efforts to cease her use of medications and avoid recommencing other passive treatment modalities which have no evidence of lasting effectiveness and risk reinforcing passivity in the patient (eg. massage, heat treatments, prolonged rest/avoidance of most activities).”

That opinion is endorsed by the weight of the medical evidence.  Dr McGrath’s evidence was that he had encouraged Mrs Jenkins not to rely on massage, as he maintained “a negative prognostic attitude” to massage because it was not likely to make any difference to Mrs Jenkins’ progress or functionality.   It is not for me to determine whether massage is medical treatment that is reasonable for Mrs Jenkins to obtain. 

25.     Treatment that is intended to reduce or alleviate pain may be therapeutic (Comcare v Watson (1997) 73 FCR 273 at 276). Therapeutic treatment in the terms defined at s 4 may include treatment for prophylactic or preventative purposes (Bashar v Comcare (2002) 69 ALD 784 at 785) and may include massage (Re Lonsdale and Comcare (2004) 80 ALD 220 at 223-224). However, in a case such as this, where passive treatment modalities are not recommended, and may be contra-indicated, any short-term palliative benefit of the treatment may be out-weighed by the risk of passive dependency on ineffective treatments that may inhibit development of longer term coping and pain management outcomes (see Re Popovic and Comcare (2000) 64 ALD 171 at 177-178; Re Websdale and Telstra Corporation Limited [2005] AATA 264 at [41]; Re Chowdhary and Comcare [1998] AATA 13003 at [21]). Nevertheless, each case must turn on its facts.

26.     By Mrs Jenkins own account, she has been taking up to five Endone tablets per day since September 1995 without break.  Her evidence was that she relies on Endone for pain relief, especially in certain weather conditions.  The pharmaceutical medication, Endone, is a drug of addiction.  Dr McGrath expressed surprise and concern that Mrs Jenkins had been taking Endone without break since September 1995.  His evidence was that it would be usual for a patient to be taken off a narcotic medication such as Endone periodically in order to assess the patient without the masking effects of the medication and so that the appropriateness of the continued use of the medical could be evaluated.  Dr Yeung, the prescribing doctor, was not called to give evidence.  The weight of the medical evidence is that Mrs Jenkins’ prolonged and ongoing use of Endone raises concerns about the potential for addiction and the masking of genuine symptoms.  It is not for me to determine whether Endone is reasonable treatment for Mrs Jenkins to obtain in relation to her injury.  However the evidence adduced in these proceedings strongly indicates the desirability of curtailing the use of Endone, at least for a period, in order to assess her condition without the masking effects of the narcotic medication, and to review the appropriacy of continuing with that medication. 

decision

27. Mrs Jenkins is presently entitled to compensation for medical treatment in relation to her injury from 22 March 2005. Her entitlement is subject to the proper determination of any claim she may make in relation to specific treatment pursuant to s16 of the Act.

28. It is agreed that in the period from 22 March 2005 Mrs Jenkins has no entitlement to compensation for incapacity pursuant to s19 of the Act.

29.     The decision under review is varied to the extent that, consistent with these reasons, Comcare’s liability to compensate Mrs Jenkins for medical treatment in relation to her compensable injury did not cease on 22 March 2005 and is presently ongoing.

30. As the matter is resolved in a manner that is favourable to Mrs Jenkins, I order that Comcare is to pay her reasonable costs in these proceedings, as agreed or taxed, pursuant to subs 67(8) of the Act.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:       .Peter Strauch..................................................
  Associate

Date of Hearing  3-4 May 2006
Date of Decision  12 May 2006
Counsel for the Applicant             Mr Graham Lunney
Solicitor for the Applicant             Pamela Coward & Associates
Counsel for the Respondent        Ms Lorraine Walker
Solicitor for the Respondent        Phillips Fox