Jugovac and Comcare
[2007] AATA 1294
•16 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1294
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/270
GENERAL ADMINISTRATIVE DIVISION )
Re ALDO JUGOVAC Applicant
And
COMCARE
Respondent
DECISION
Tribunal
Mr S. Webb, Member
Date16 March 2007
PlaceCanberra
Decision The decision under review is set aside and in place thereof the Tribunal decides that physiotherapy, hydrotherapy and gym sessions are medical treatments that it was reasonable for Mr Jugovac to obtain from 18 April 2003 to the present in the circumstances.
The matter is remitted to Comcare to determine Mr Jugovac’s entitlements to compensation pursuant to subs 16(1) of the Safety, Rehabilitation and Compensation Act 1988 in accordance with these reasons.
The parties have seven days in which to make submissions in relation to costs.
..............................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION – Medical treatment – Therapeutic treatment – Meaning of ‘reasonable to obtain in the circumstances' – Relevant considerations and circumstances – Cost benefit analysis – Role of decision maker – Decision set aside.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16
Comcare v Watson (1997) (1997) 73 FCR 273; 24 AAR 516; [1997] HCA 149
Bashar v Comcare (2002) 69 ALD 784; [2002] FCA 837
Re Chowdhary and Comcare [1998] AATA 448
Re Jorgensen and Commonwealth of Australia (1990) 23 ALD 321
Comcare v Rope (2004) 135 FCR 443; [2004] FCA 540
Lodkowski v Comcare (1998) 53 ALD 371
MacDonald v Director General of Social Security (1994) 1 FCR 354; (1984) 6 ALD 6
REASONS FOR DECISION
16 March 2007 Mr S. Webb, Member 1. Aldo Jugovac injured his left elbow in his employment as a Ranger with the ACT Department of Sport, Recreation and Racing. He was awarded compensation and subsequently retired. He continued to receive compensation for medical treatment expenses relating to regular physiotherapy, hydrotherapy and gym sessions. Subsequently Comcare determined that he was not entitled to compensation for these treatments.
2. There is a preliminary matter concerning the particular matters that are before the Tribunal for review that can shortly be dealt with. Comcare initially denied liability to compensate Mr Jugovac for treatment expenses relating to physiotherapy, hydrotherapy and gym sessions on 18 December 2002. That decision was affirmed on reconsideration on 17 April 2003.[1] Mr Jugovac did not challenge that decision. However, Mr Jugovac continued to obtain the treatments and subsequently claimed compensation for associated costs. On 9 May 2003 Comcare declined payment on the basis that liability for the particular treatments had previously been denied.[2] A similar approach was adopted on 30 September 2004.[3] On 26 April 2005 Comcare decided that it could not reconsider the reviewable decision dated 17 April 2003 and proceeded to reconsider the deemed determinations dated 9 May 2003 and 30 September 2004. I am satisfied the determinations of 9 May 2003 and 30 September 2004 are properly before the Tribunal. Mr Jugovac did not press for review of the earlier reviewable decision and did not apply for an extension of time in which to make an application for review of the 17 April 2003 decision. Thus, that reviewable decision is not properly before the Tribunal.
[1] Documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), T62.
[2] T63.
[3] T65.
3. The reconsideration decision maker proceeded on the basis that she had to decide whether Mr Jugovac was entitled to compensation for the claimed treatments from 18 April 2003. She decided the matter in the negative.
4. The following issues are before the Tribunal for determination.
(a)Are the physiotherapy, hydrotherapy and gym sessions Mr Jugovac obtained ‘medical treatment’; and if so
(b)were the treatments medical treatment that it was reasonable for Mr Jugovac to obtain in the circumstances?
are the physiotherapy, hydrotherapy and gym sessions mr jugovac obtained ‘medical treatment’?
5. In Comcare’s submission the regular physiotherapy, hydrotherapy and gym sessions Mr Jugovac obtained do not constitute ‘medical treatment’ under the Safety, Rehabilitation and Compensation Act 1988 (Cth) because they are not within the meaning of ‘therapeutic treatment’ [4] This, it was said, is because they are not intended to cure or provide lasting relief from the injury. In Comcare’s submission only surgery is likely to provide relief from the injury, and Mr Jugovac has declined that option.
[4] Subsection 4(1).
6. I do not agree.
7. Under the Act ‘medical treatment’ is defined to include ‘therapeutic treatment obtained at the direction of a legally qualified medical practitioner’, and ‘therapeutic treatment’ is defined to include ‘treatment given for the purpose of alleviating an injury’.[5] Thus for treatment to be ‘therapeutic treatment’ under the Act it must be treatment for the purpose of alleviating the particular injury. Treatment for the purpose of alleviating the pain caused by an injury may be regarded as therapeutic treatment. The word ‘therapeutic’ is not confined to healing or curative connotations[6] but may also include treatment for the purpose of preventing the pain or other symptoms of an injury becoming worse.[7]
[5] Subsection 4(1).
[6] See Comcare v Watson (1997) 24 AAR 516 at 519.
[7] See Bashar v Comcare [2002] FCA 837 at paragraph 9.
8. Mr Jugovac asserted that he obtained regular physiotherapy, hydrotherapy and gym sessions from Mr D. Parsons, physiotherapist, at the direction of his treating general practitioner, Dr L Buczynski. It is not disputed that Dr Buczynski is a qualified and registered medical practitioner in the Australian Capital Territory. I am satisfied that Dr Buczynski referred Mr Jugovac for physiotherapy treatment by Mr Parsons (and his predecessor in practice). Mr Parsons provides the particular treatment in his premises at Dickson. Dr Buczynski monitors the treatment and the progress of Mr Jugovac’s injury in regular consultations. Thus, on these uncontroversial findings, I am satisfied that the treatment Mr Jugovac obtained from Mr Parsons was treatment obtained at the direction of Dr Buczynski.
9. Mr Parsons gave evidence that the purpose of the treatments was to alleviate pain resulting from the left elbow injury, as well as to maintain functionality in the left arm and elbow and to prevent deterioration of the injury. Dr Buczynski’s evidence and the evidence of Mr Jugovac were consistent on this point. On that evidence, which I accept, and applying the principles enunciated by Madjwick J in Bashar v Comcare, I am reasonably satisfied that the physiotherapy, hydrotherapy and gym sessions Mr Jugovac obtained from Mr Parsons are within the meaning of ‘therapeutic treatment’ under the Act.
10. It follows that those treatments are within the meaning of ‘medical treatment’ as defined at subs 4(1) of the Act and I so find. The prospect that surgical treatment may produce lasting therapeutic benefit exists as a possibility on the evidence, but does not displace this finding. It may, however, be a salient factor to consider in relation to the question of reasonableness which follows.
were the treatments, medical treatment that it was reasonable for Mr Jugovac to obtain in the circumstances?
11. In Comcare’s submission passive treatment modalities such as physiotherapy and massage are not treatments that it is reasonable to obtain in relation to an injury in an ongoing sense over a long period. Comcare asserts that physiotherapy, hydrotherapy and gym sessions are treatment modalities that it is not reasonable for Mr Jugovac to obtain because they do not form part of a plan to permanently improve his injury.[8] Comcare says that the treatments provide only short-term temporary relief and cannot be justified when the costs of the treatment are weighed against any benefits. Furthermore in Comcare’s submission Mr Jugovac could reasonably be expected to undertake substantial elements of the treatment, especially exercises and hydrotherapy, himself at home. Comcare argued that self-management of these activities at home by Mr Jugovac is both reasonable and cost effective and it is not necessary for those elements of the treatment to be provided professionally. Comcare asserts that surgery may provide a lasting and cost effective treatment for Mr Jugovac’s injury, but such treatment has been declined by Mr Jugovac. Finally, in Comcare’s submission, there is a point at which it is no longer reasonable to obtain physiotherapy and related treatments, and that point is reached when the costs of the treatments out-weigh the benefits derived.
[8] Re Chowdhary and Comcare [1998] AATA 448 at paragraph 53
12. The general principle thus enunciated can be accepted. However, in the specific circumstances of this case I am not satisfied that the physiotherapy, hydrotherapy and gym sessions are treatments that it is presently unreasonable for Mr Jugovac to obtain.
13. Comcare is liable to pay compensation in respect of the cost of medical treatment for an injury that it was reasonable for the injured worker to obtain in the circumstances,[9] whether or not the injury results in incapacity for work or impairment.[10] While the question of reasonableness involves an objective assessment, the test of reasonableness in the circumstances requires consideration of subjective factors in relation to which reasonableness is to be assessed. The subjective factors therefore are those in a limited frame of relevance to the particular injury.[11] In that frame it is necessary to weigh up the costs and the benefits of the treatment obtained in relation to the injury, and to take into account the relative cost and benefit of any other treatment that is available, including, in some cases, no medical treatment at all.
[9] Subsection 16(1).
[10] Subsection 16(2).
[11] Re Jorgensen and Commonwealth of Australia (1990) 23 ALD 321 at 325; Comcare v Rope (2004) 135 FCR 443 at 448.
14. The particular treatment Mr Jugovac obtained was regular weekly physiotherapy, hydrotherapy and gym sessions. The treatment was provided by Mr Parsons. Having considered the evidence of Mr Jugovac and Mr Parsons I am reasonably satisfied and find that the treatment Mr Jugovac obtained on each visit to Mr Parson’s practice specifically involved the following:
(a)Stretching and strengthening exercises of the left arm in a heated hydrotherapy pool for 15 to 20 minutes. Mr Parsons gave evidence, which I accept, that he monitored Mr Jugovac performing these exercises in order to ensure compliance and correct technique. The monitoring was either directly or by use of a video camera in the hydrotherapy pool area. Mr Parsons would adjust the particular exercises and Mr Jugovac’s technique from time to time as necessary.
(b)Exercises in the gym for 10 to 20 minutes. These exercises involved the use of hand weights and pulleys, an inflated ‘Swiss’ ball and an elasticised band. Details of the particular exercises were given by Mr Jugovac and Mr Parsons, which I accept. Mr Parsons gave evidence that he monitored Mr Jugovac performing these exercises and adjusted the exercises and Mr Jugovac’s technique from time to time.
(c)Physiotherapy for 15 to 20 minutes, consisting of electrotherapy to the left elbow and surrounding areas, ultrasound over the lateral aspect of the left elbow, deep connective tissue massage of the left arm, and a number of stretching, mobilising and relaxation exercises.
15. By Mr Jugovac’s account, the most significant benefit he obtained from these treatments was a reduction in the level of pain for a period of days after each service. His evidence was that his pain level increased if he did not have the treatments in question, in consequence of which he would take more Panadeine Forte and Disprin to relieve the pain. He gave evidence that he ceased treatment for 5 weeks while visiting his sick mother overseas and his condition worsened: his pain increased and he consumed 3 boxes of Panadeine Forte, when usually he would use one box per month. Mr Jugovac stated that the treatment did not have any significant affect on the sensation of numbness in his left arm, but it did improve flexibility and feeling in his left arm. His evidence was that certain activities, such as lifting weights, exacerbate the pain and other symptoms in his left arm, and he would use Voltaren Gel and hot packs on his arm when it felt bad. He gave evidence that he does some of the treatment exercises at home: exercises involving flexing and rubbing his left arm, using small weights and an elasticised band. Mr Jugovac maintained that he cannot do the hydrotherapy exercises at home because he does not have a bath and cannot effectively do the exercises in the shower.
16. Mr Parsons gave evidence that the benefits of the treatments were palliative (temporary relief of pain), functional (maintenance of flexibility and strength) and preventative (slowing deterioration).[12] Mr Parsons agreed with the proposition that Mr Jugovac could do (and does) some exercises at home, but gave evidence that Mr Jugovac could not do all of the exercises at home without proper supervision, in particular the physiotherapy exercises and treatments.
[12] Oral evidence of Mr Parsons and T71.
17. Dr Buczynski, general practitioner, gave evidence that the treatments are significant in maintaining or improving the functionality of Mr Jugovac’s left arm.[13] On 7 September 1999 Dr Dewey, Orthopaedic Surgeon, reported that continuing physiotherapy and hydrotherapy was futile and surgical treatment would offer the best relief.[14] On 30 August 2002 Dr Webster, Consultant Orthopaedic Physician, reported that Mr Jugovac may achieve some temporary relief of pain on the day he receives physiotherapy and related treatments, but that such treatments would not resolve his symptoms in a lasting sense and would not alter the course of the underlying condition. In Dr Webster’s opinion ongoing weekly physiotherapy and hydrotherapy treatments were not appropriate[15] and a self management regime would be more desirable. However, in Dr Webster’s opinion, before such a regime could properly be implemented an objective assessment to measure variance in pain, strength and dexterity should be undertaken over an approximate eight week period.[16] On 17 February 2006 Dr Gras, Occupational Physician, reported that the treatments can be expected to provide short-term relief and benefit. He noted that it “is conceivable that such treatment does maintain function for Mr Jugovac and may prevent the continuing symptoms from deterioration; however it is unlikely that they will lead to sustained permanent improvement”.[17] On 19 February 2006 Dr Eaton, Occupational Physician, reported that the treatments are likely to “improve [his] quality of life, improve his pain control and also result in the maintenance of a reasonable level of function”,[18] and conceded that they were not likely to affect a total cure.[19]
[13] Oral evidence of Dr Buczynski, T54 and exhibit A2, p. 2.
[14] T37 folios 101-102.
[15] T51 folio 126.
[16] Oral evidence of Dr Webster.
[17] Exhibit R1, p. 11.
[18] Exhibit A1, p. 4.
[19] Oral evidence of Dr Eaton and exhibit A1, p 5.
18. Mr Jugovac has continued to obtain treatment from Mr Parsons despite Comcare’s decision to refuse to compensate him for the costs incurred.
19. The particular costs of the treatments have varied over time, and there is not clear documentation on this point. Nevertheless, doing the best with the available evidence, I am reasonably satisfied the cost of a physiotherapy consultation with Mr Parsons was $45 in 2002 and is presently $65. On Mr Parsons’ evidence Mr Jugovac was not charged extra for the hydrotherapy and gym sessions as a ‘private’ patient. He maintained that an additional charge of $24 is levied in insurance cases. On that basis I am satisfied that Mr Jugovac is only entitled to claim the actual cost of the treatment he obtained and not the price that Mr Parsons may choose to charge Comcare or any other insurer if billed directly for service.
20. There is no evidence before me in relation to the cost of nerve release surgery, as proposed by Dr Dewey in 1999, and there is only scant evidence concerning the likelihood that such surgery would be successful in Mr Jugovac’s case. Thus it is not possible to properly or accurately assess the comparative cost and benefit of that treatment.
21. Comcare contends that Mr Jugovac would be able to self-manage his injury by undertaking physiotherapy, hydrotherapy and gym exercises at home. That would provide a very cost effective solution to his present problems and is preferable to continuing to obtain treatment from Mr Parsons in an on-going and dependant manner.
22. However, as Dr Webster noted, the relative benefits of this approach have not been established on the basis of an objective assessment. On its face the option of Mr Jugovac self-managing his injury and physical treatments at home would be a cheaper option for Comcare. However, such an outcome is far from clear. If Mr Jugovac’s evidence is correct, and I have no reason to doubt it, it could be expected that if there is an increase in his symptoms then the amount (and cost) of his medications could also be expected to increase. Furthermore, his ability to self-manage is likely to be dependent upon having appropriate facilities or equipment at home. The relative cost of providing such equipment has not been examined and there is no evidence before me on this point.
23. The weight of the medical evidence is that self management at home may provide some benefits in terms of temporary symptomatic relief. However, any benefits Mr Jugovac has derived from self-management or treatment practices in his home thus far have been as an adjunct to the medical treatment he has obtained from Mr Parsons and Dr Buczynski, from which he claims to have derived greater benefit. Whether or not such benefits can be maintained in the absence of on-going medical treatment is simply unknown. What is required is an objective assessment as recommended by Dr Webster. In the absence of such an assessment it is not possible to properly assess the relative costs and benefits of this treatment option.
24. Comcare submitted that it is not for Comcare to determine appropriate treatment for Mr Jugovac’s injury, and asserted that there is no evidentiary onus on Comcare in that regard. I agree. The task of Comcare is to determine whether the particular treatment claimed is medical treatment that was reasonable for the claimant to obtain in relation to an injury in the circumstances. That is the statutory test to be applied. The question is not whether one treatment is more appropriate than another. To apply that question would be to misinterpret the approach set out by Stone J in Comcare v Rope. The relative weighing up of the costs and benefits of treatment obtained or available to an injured claimant is simply for the purpose of assessing the reasonableness of obtaining the treatment claimed. It is a matter of identifying the respective costs and benefits of the treatments available on the evidence. If the evidence supports a finding that comparable benefits to those derived from the claimed treatment can be obtained at a lower cost using an alternative treatment modality, then that may weigh against the reasonableness of obtaining the claimed treatment. Conversely, if the benefits obtained from the claimed treatment cannot be obtained at a comparable cost by using an alternative treatment modality, they may weigh in favour of the reasonableness of obtaining the treatment claimed. The test of reasonableness relates to the obtaining of the particular treatment in the circumstances. The merit or otherwise of the claimed treatment is but one factor in that consideration.
25. The Tribunal must make the correct or preferable decision on the evidence before it to its reasonable satisfaction (noting that this language does not imply an onus of proof on either party).[20] Nevertheless, if evidence is required to enable the Tribunal to find a particular fact or to satisfy a statutory test under the legislation being applied, then it is for the parties to ensure that appropriate evidence is before the Tribunal. Furthermore the person who made the decision under review, in this case Comcare, must assist the Tribunal to make the correct or preferable decision.[21] Thus, in the process of review, even though proceedings in the Tribunal are not adversarial in nature, parties to Tribunal proceedings may bear a burden of persuasion in relation to particular matters contended, whereby a greater burden may weigh upon one party than another in relation to adducing evidence to support a particular finding. That burden should not be misconstrued as an onus upon that party to prove its case unless the applicable legislation requires it.
[20] Lodkowski v Comcare (1998) 53 ALD 371 at 386; MacDonald v Director General of Social Security (1984) 6 ALD 6 at 9-11.
[21] Administrative Appeals Tribunal Act 1975 (Cth) s 33(1AA).
26. Thus, in this case, following Macdonald v Director General of Social Security if the evidence is not sufficient to permit the Tribunal to conclude to its reasonable satisfaction that the statutory test is satisfied then the claim will fail. However, this is not such a case. The evidence establishes that Mr Jugovac derives benefits from the medical treatment he obtained from Mr Parsons at a cost. The evidence raises questions about the benefits Mr Jugovac may derive from treating himself at home without medical treatment, and the costs are not clear, although it can be assumed that the relative cost would be lower than the treatment claimed. Simply, there is insufficient evidence to persuade me that the relative benefits of the alternative home-based self-management treatment contended for by Comcare are comparable or greater than the benefits Mr Jugovac derives from the treatment claimed.
27. I accept that it is desirable from a public policy perspective not to support injured workers to obtain (or become dependent upon) passive treatment modalities that are not productive of benefits that outweigh the costs when compared to alternative treatments that are available (including no medical treatment in some cases). These are matters of fact and degree to be weighed-up and determined on the available evidence.
28. In Mr Jugovac’s case, he obtained the treatment claimed on the advice of his treating doctor. He obtained benefits from it. He also obtains benefits from undertaking certain exercises at home, as an adjunct to the medical treatment. On the available evidence I am not persuaded that it is unreasonable for him to obtain the claimed treatment on the basis that he could obtain comparable benefits at a lower cost by treating himself at home. I am persuaded by Dr Webster’s evidence that it is necessary to conduct an objective assessment of the relative benefits of that approach in order to establish a firm basis of evidence on which to assess any related questions of reasonableness. Thus, whether or not it is reasonable in the circumstances to place some limit on Mr Jugovac obtaining physiotherapy and related treatments , along the lines discussed by the Tribunal in Re Chowdhary and Comcare, is a matter that may properly be resolved following an objective assessment of the relative costs and benefits as proposed by Dr Webster.
29. In conclusion, therefore, even though there are salient questions that must be addressed in the future concerning the reasonableness of Mr Jugovac continuing to obtain the claimed treatments, presently and during the period since 18 April 2003, I am reasonably satisfied that the physiotherapy, hydrotherapy and gym sessions Mr Jugovac obtained from Mr Parsons were medical treatments that it was reasonable for him to obtain in the circumstances. That being so the decision under review will be set aside. In place of that decision the Tribunal decides that physiotherapy, hydrotherapy and gym sessions are medical treatments that it was reasonable for Mr Jugovac to obtain in the circumstances. The matter is remitted to Comcare to determine his entitlements to compensation pursuant to subs 16(1) of the Act in accordance with these reasons.
30. Thus the matter is resolved in Mr Jugovac’s favour. No submissions were made in relation to orders for costs pursuant to subs 67(8). I am minded to order that Comcare pay Mr Jugovac’s reasonable costs in these proceedings as taxed or agreed pursuant to the Tribunal’s General Practice Direction. The parties have seven days in which to make submissions in relation to costs. In the event that no submissions are forthcoming the orders indicated will be made.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 20 & 21 February 2007
Date of Decision 16 March 2007
Counsel for the Applicant Mr R Livingston
Solicitor for the Applicant Higgins Solicitors
Counsel for the Respondent Mr B Dubé
Solicitor for the Respondent Sparke Helmore
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