King and Comcare (Compensation)

[2018] AATA 3042

King and Comcare (Compensation) [2018] AATA 3042 (24 August 2018)

Division:GENERAL DIVISION

File Number(s):      2017/0630

Re:Robert King

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:24 August 2018

Place:Sydney

The decision under review is affirmed.

....................[sgd]................................................

Senior Member A Poljak

CATCHWORDS

COMPENSATION – accepted claim for workers compensation – section 16 entitlement – remedial massage – whether medical treatment – whether reasonable to obtain in the circumstances – treatment provides temporary alleviation not permanent improvement – applicant dependent on the treatment – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16

CASES

Comcare v Holt [2007] FCA 405

Popovic and Comcare [2000] AATA 264

REASONS FOR DECISION

Senior Member A Poljak

24 August 2018

1. The applicant, Mr King, was employed by Comcar, Department of Finance and Administration, as a driver of Commonwealth cars for approximately 18 years from 1984 until 2002.

2. The applicant has an accepted claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for “lumbar sprain aggravation” and “neck sprain aggravation”, with date of injury deemed to be 12 March 2002 (“the compensable injury”).

3. The applicant underwent a lumbar laminectomy, pedicle screw, internal fixation and interbody fusion with Dr Davies, neurosurgeon, on 12 May 2004. The applicant was absent from the workplace from approximately 2003 to 2008 due to the compensable injury.

4. On 9 April 2010, Comcare accepted liability under section 14 of the Act for a secondary condition of “headaches” in relation to the compensable injury.

5. Over the years, the applicant has claimed compensation for consultations with a general practitioner, related pharmaceuticals, physiotherapy treatment, chiropractic treatment, and remedial massage treatment, consultations with a neurologist, a back brace, cortisone injections and Botox injections. In total, the applicant has claimed approximately 870 remedial massage therapy sessions in conjunction with receiving numerous other passive therapies, namely, physiotherapy, chiropractic and osteopathic treatments; which total over a further 450 sessions.

6. On 29 August 2016, Comcare determined that the applicant had no present entitlement under section 16 of the Act for remedial massage and lumbar injections.

7. On 27 October 2016, a review officer of Comcare varied the determination dated 29 August 2016, and accepted liability for lumbar injections but affirmed the decision in so far as it related to remedial massage. The review officer considered that ongoing remedial massage did not meet the requirements of the Clinical Framework for the Delivery of Health Services (“the Clinical Framework”). This is the decision under review in these proceedings.

   ISSUES FOR DETERMINATION

8. The issue to be determined in these proceedings is:

   (a)Whether the applicant is entitled to compensation for remedial massage therapy under section 16 of the Act in respect of the compensable injury, which includes consideration of:

   (i)Whether the remedial massage therapy received by the applicant is “medical treatment” as defined in section 4 of the Act;

   (ii)Whether the remedial massage therapy was obtained in relation to the compensable injury; and

   (iii)Whether the treatment is “reasonable for the employee to obtain in the circumstances”.

   Relevant Legislative Provisions

9. Comcare’s liability for medical treatment is considered under subsection 16(1) of the Act, which provides:

   Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

10. Section 4 of the Act, in part, defines “medical treatment” as:

    ...

    (b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or

    ...

    (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; or

    ...

    (i) any other form of treatment that is prescribed for the purposes of this definition.

11. “Therapeutic treatment”, “includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury”; subsection 4(1).

    RELEVANT MEDICAL EVIDENCE

12. In a Medical Certificate for Compensation dated 15 October 2015, Dr Holliday, the applicant’s general practitioner, notes under medical management that the applicant receives massage therapy twice a week for his neck and back pain. Likewise, in the most recent Medical Certificate for Compensation dated 31 May 2016, Dr Holliday records under medical management that the applicant is receiving massage therapy twice a week for his neck and back pain.

13. Dr Pillemer, Orthopaedic Surgeon, says in his report dated 1 February 2016, that in his opinion, ongoing remedial massage is not medically indicated and the applicant simply needs to avoid activities that he knows will aggravate his symptoms.

14. On 15 June 2017, Dr Pillemer re-examined the applicant and prepared an additional report; dated 15 June 2017. It is recorded in the report that the applicant informed Dr Pillemer that since he was last examined, some 16 months previous, he continues “to have his remedial massage on a regular basis 3 times every 2 weeks, twice in one week and once the following week, and he has been having this for over 30 years”. It is recorded that the applicant said “he feels he is particularly fortunate having found a particular remedial massage person at this stage who does help. He feels that the treatments themselves aggravate his symptoms but they have to ‘hurt to help’”. In regards to whether remedial massage is medically indicated, Dr Pillemer opines:

    “From a purely medical point of view in my opinion, ongoing remedial massage on a regular basis would not be regarded as being reasonably necessary as quite clearly it is not going to alter his pathology. It may well give him some temporary improvement in his symptoms, and I would suggest at this stage Mr King has become dependent on his remedial massage, and any attempt to stop this is likely to lead to an increase in his symptoms.

    …

    In my opinion Mr King’s condition will not improve or get better with remedial massage. I note that he has had over 870 massage treatments to date. As suggested in the body of my report, in my opinion ongoing remedial massage would not be regarded as being medically necessary, but Mr King has now become dependent on these treatments. I imagine that any attempt to stop these treatments will be met with increased symptoms and possible interference with his workability, from a purely medical point of view, as suggested above, these treatments in my opinion are not medically necessary.

    …

    Once again in my opinion remedial massage is not medically necessary or indicated and would not alter the pathology in his neck or his back.” [Emphasis added]

15. At hearing, Dr Pillemer confirmed his opinion contained in the written reports, namely, that remedial massage therapy was not medically indicated and that the applicant was likely dependent on the treatment. He suggested that the applicant be tested for diabetes as this condition may decrease sensation below the knees in both legs. He recommended that the applicant undergo further examination by a neurologist.

16. Senior massage therapist, Jian Sheng Zhang, states in a letter dated 18 December 2016, that massage relieves the applicant’s pain, improves his range of motion, improves his mobility and allows the applicant to maintain his daily activities and work.

17. In a report dated 22 December 2016, Evgenia Andriannakis, senior remedial therapist, states that “all treatments are judiciously thought out and goal specific orientated, depending on expressed details of complaint by the patient, of each week’s movement issues”. In conclusion it is noted that the applicant “dedicates himself to maintaining the longevity of each treatment, via ongoing upkeep of all rehabilitative exercises that have been prescribed”. Evgenia Andriannakis states that treatment is “exhibiting a positive result, as [the applicant’s] Botox injections to numb effected hypertonic musculature around the upper spine has tapered from needing the procedure every 3 months, is now at 6 - 8 months”.

    CONSIDERATION

18. Remedial massage therapy obtained by the applicant meets the definition of “medical treatment” contained in section 4 of the Act. The definition contemplates treatment by a masseuse as qualifying under section 16(1), if other conditions in the Act are met, including that the treatment is given under the direction of an appropriately qualified person. In the present context, the effect of the provisions above is that the treatment must be:

    (a)“Therapeutic” and;

    (b)Obtained under the direction of a legally qualified medical practitioner or be provided by, or under the supervision of, a registered physiotherapist, osteopath, masseur or chiropractor.

19. The remedial massage therapy undertaken by the applicant was at the recommendation of the applicant’s treating GP, Dr Holliday. It does not appear to be in dispute that Dr Holliday is a legally qualified medical practitioner.

20. I accept that the remedial massage therapy alleviates the applicant’s symptoms. As such, I am satisfied that remedial massage therapy was treatment given for the purpose of alleviating the compensable injury and “therapeutic treatment” within the definition of “medical treatment”.

21. In making an assessment of the reasonableness of medical treatment, it is often of great assistance to make reference to the Clinical Framework. The Clinical Framework lists the guiding principles as:

    Measure and demonstrate the effectiveness of treatment

    Adopt a biopsychosocial approach

    Empower the injured person to manage their injury

    Implement goals focused on optimising function, participation and return to work

    Base treatment on the best available research evidence.

22. Particularly relevant in considerations such as this is point 3, “Empowering the injured person to manage their injury”. The Clinical Framework later elaborates on this point:

    The key measure of treatment effectiveness is the ability of the injured person to manage their condition as independently as possible and participate in activities at home, in the community and at work. Independence does not mean being symptom-free, but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependency on treatment, which reinforces illness behavior and can lead to persistent pain or long-term disability. [Emphasis added]

23. In Popovic and Comcare [2000] AATA 264, the Tribunal noted at [28]:

    In relation to the applicant's claim for physiotherapy treatment expenses, in our view there is no role for passive physiotherapy in the applicant's current treatment regime. The physiotherapy he was having could not improve him in the long term, has limited, if any, short term benefit, and may in fact be contra-indicated. Any therapeutic benefit he received was small and short-lived. We accept that pain relief, even short-term relief or reduction in pain, can be therapeutic (Comcare v Watson (1997) 73 FCR 273 at 276 per Finn J). However, in this case any benefit is outweighed by the counter-productive effect of it leading the applicant to a dependent state, inhibiting his ability to learn to cope, and to embark on pain management programs to assist him with that object.

24. At hearing, the applicant discussed the treatment he has been receiving over the years and the GP management plans of Dr Holliday. He accepted that Dr Holliday advised him to stretch and exercise but that Dr Holliday predominantly left it up to the remedial massage therapist to guide him. The applicant advised that the massage therapist often discussed exercises and that there were new exercises all the time, as appropriate. He advised that most of his regular exercises, such as stretching, were done with the assistance of a remedial massage therapist during sessions. In regards to his pain levels, the applicant agreed that they were about the same as they were in 2002 but with some fluctuations. The applicant’s dependency on remedial massage therapy was put to him. He agreed that his pain levels hadn’t significantly improved in the last 5 years but he said that he had never considered that the massage therapy had no medical benefit.

25. I accept Dr Pillemer’s evidence that the applicant is dependent on the remedial massage therapy as this is supported by the number and frequency of treatments received by the applicant and the lack of evidence substantiating the applicant’s independence and self-management of his condition.

26. Having considered all of the available evidence, I am not satisfied that remedial massage therapy provides any ongoing improvement or medical benefit. Despite the longevity of the applicant’s condition and the large number of treatments undertaken, there is no evidence to support a finding that the remedial massage therapy received by the applicant has produced any improvement (other than temporary) in his condition. This is supported by the evidence of Dr Pillemer and the applicant’s own evidence that his pain levels have remained the same, with fluctuations, for a significant period of time.

27. In cases such as these, it is also appropriate to undertake a cost benefit analysis. This is particularly so where treatment, in this case remedial massage therapy, which in the past has had some therapeutic benefits, may no longer be reasonable because of the extent of the therapeutic benefits; and therefore no longer justifies the cost in light of the past expense; see Comcare v Holt [2007] FCA 405 at [26]. In this matter, a large number of treatments have been undertaken over a lengthy period of time, at a significant cost, with little or no benefit.

    Decision

28. For all of the above reasons, I’m not satisfied that it is reasonable for the applicant to obtain remedial massage therapy in relation to the compensable injury as it is not supported by the Clinical Framework, the applicant’s condition will not improve or get better with the remedial massage therapy and the applicant is dependent on the treatment. Accordingly, the applicant is not entitled to compensation under section 16 of the Act for remedial massage therapy in relation to the compensable injury.

29. The decision under review is affirmed.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

......................[sgd]..............................................

Associate

Dated: 24 August 2018

Date(s) of hearing:	7 February 2018
Applicant:	In person
Counsel for the Respondent:	Sarah Wright
Solicitors for the Respondent:	Australian Government Solicitor