Kumar and Comcare (Compensation)
[2025] ARTA 1145
•28 July 2025
Kumar and Comcare (Compensation) [2025] ARTA 1145 (28 July 2025)
Applicant/s: Saroj Kumar
Respondent: Comcare
Tribunal Number: 2023/5708
Tribunal:General Member M. Carey
Place:Melbourne
Date:28 July 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that from 1 April 2023 to the present date and at the present date, the Applicant is entitled to compensation pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988 for the cost of chiropractic treatment in respect of her compensable neck injury being treatment that is reasonable to obtain in the circumstances.
..............................SGD..........................................
General Member M Carey
Catchwords
COMPENSATION – entitlement to compensation for medical treatment – chiropractic treatment – whether therapeutic treatment – whether treatment obtained in respect of injury – nature of injury – whether treatment is reasonable to obtain in the circumstances –utility of Clinical Framework – cost/benefit analysis – treatment compensable
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare Australia v Rope (2004) 135 FCR 443
Comcare v Holt [2007] FCA 405; (2007) 94 ALD 576
Comcare v Watson (1997) 46 ALD 481
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Heales and Comcare [2018] AATA 3788Secondary Materials
Clinical Framework for the Delivery of Health Services, June 2012
Statement of Reasons
Ms Saroj Kumar entitled to compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for an injury identified by Comcare as ‘disorders of bursae and tendons shoulder region (right) and an aggravation of intervertebral disc disorder cervical region’.[1] A date of injury of 11 May 2005 was identified in decisions. She made her claim for compensation on 7 June 2005 for injury to the ‘neck & right shoulder’ related to her employment with the Australian Taxation Office in Hurstville in the State of New South Wales.[2]
[1] T212, 643. References to ‘T-Documents’ are references to documents lodged with the Tribunal pursuant to a Notice to the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), in operation when the application commenced. They are generally known as ‘Tribunal documents’, sequentially numbered, with subsequent page references. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
[2] T10, 41-55.
The medical certificate provided at the time of her claim described ‘neck strain from continual desk job’.[3]
[3] T11, 57.
For some years, Comcare has paid compensation for a variety of treatments for this condition, including general practitioner consultations, gymnasium membership, pharmaceutical treatment, physiotherapy treatment and up to 264 sessions of chiropractic therapy. However, by its determination of 5 April 2023, Comcare declined to accept any further liability for the cost of chiropractic therapy.[4] For many months prior to that decision, Comcare accepted liability for those costs on a fortnightly basis.
[4] T203, 600.
Ms Kumar requested a reconsideration of that decision in writing on 28 April 2023.[5] However, by its reviewable decision dated 6 June 2023, Comcare affirmed its original decision to deny any further payment for chiropractic treatment. From Comcare’s Statement of Position dated 27 September 2024, that denial took effect on and from 1 April 2023. The total of ‘$2,160.00 + $160.00’ is claimed for chiropractic treatments for the period 1 April 2023 to 6 September 2024.
[5] T204, 601-602.
Legislation
Where there is a liability to pay compensation for injury, there is a specific liability to pay for the costs of medical treatment obtained ‘in relation to’ that injury. Section 16(1) of the SRC Act provides:
16 Compensation in respect of medical expenses etc.
(1) 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.
Injury, wherever referred to in the SRC Act is by subsection 4(8) of the Act, ‘a reference to an injury suffered by the employee in respect of which compensation is payable under this Act.’
Injury is a term defined in accordance with subsection 5A(1) of the SRC Act as follows:
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
The word ‘disease’ is separately defined in s 5B of the SRC Act.
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Medical treatment is defined in section 4(1) of the SRC Act and includes:
…
(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.
Chiropractic treatment is specifically identified as a form of medical treatment at subparagraph (d) of the definition of medical treatment. It is qualified by the expression ‘therapeutic treatment’ which is given an inclusive definition in subsection 4(1) of the SRC Act as follows:
therapeutic treatment includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
Background
In 2005, Ms Kumar was working on a full-time basis at the Australian Taxation Office (ATO) located at Hurstville when she developed neck and right shoulder pain and started treatment. She attributed the pain to ‘repetitive activities of reviewing documents & continuous use of computer keyboard’ when making her claim for compensation on 7 June 2005.[6]
[6] T10, 42-49.
At the time of onset of the condition, Ms Kumar worked as an Operative at the APS 4 level performing duties said by her employer to be ‘desk-based verification, typing, document analysis, phone use’.[7] In a letter dated 16 September 2005, for the purposes of seeking review of a decision to not accept her claim for a neck injury, Ms Kumar stated:[8]
I never had any pain in neck or shoulders before this and my current work has involved me working longer hours on a frequent basis and to remain in sitting position for longer periods of time to full fill (sic) the job requirements.
The work, which involves reading/reviewing multiple documents, client contact and phone verifications and obtaining information from Departmental computer system and preparing reports in order to carry out compliance work, enforced me to bend my neck and use both shoulders/arms continuously on day after day basis.
[7] T10, 51.
[8] T25, 87.
She had ceased work from 27 May 2005 and a medical certificate completed by Dr Wong proposed a diagnosis of ‘neck/strain/occupational overuse syndrome’ as a result of ‘continual desk job’. From 6 June 2005 Ms Kumar remained off work and provided a medical certificate from Dr Theresa Ong who diagnosed ‘neck sprain’. Two days later, Dr Ong amended that diagnosis to ‘neck strain? R[ight] shoulder impingement’. A further report of 27 July 2005 from Dr Ong to Comcare noted that Ms Kumar had ‘complained of neck and back pain for the previous few days and had recalled no acute injury’ when consulted on 11 May 2005. She further stated that Ms Kumar had ‘been a patient of this practice since 17/12/98, and there has been no record since this period of any previous neck or back problems.’ The diagnosis had clarified further in Dr Ong’s mind to ‘[1] Degenerative disc disease C5-C7’ and ‘[2] Impingement (R) shoulder (bursa inflammation).’[9]
[9] T13, 60.
Comcare initially accepted the claim on 7 August 2005 as 'disorders of bursae and tendons shoulder region (right)' (the shoulder injury). Liability was denied for 'degeneration of cervical intervertebral disc'. However, following a request for reconsideration, Comcare reviewed the primary determination and found a liability for the neck as ‘aggravation of intervertebral disc disorder – cervical region’.[10]
[10] T25, 86-88.
Initial treatment was by pay of physiotherapy for mainly right-side neck and shoulder pain.[11]
[11] T18, 73.
In 2009 Mrs Kumar sought review by the former Administrative Appeals Tribunal (AAT) of a decision by Comcare made on 20 August 2008 ceasing liability to pay specific compensation benefits pursuant to section 16 and 19 of the SRC Act on and from 15 February 2008.[12] On 26 November 2009 an order was made by the AAT following an agreement between the parties reached in an alternative dispute resolution process. That order set aside the reviewable decision and substituted a decision finding that as at 18 February 2008 the applicant continued to suffer from the injury sustained in 11 May 2005 and she remained entitled to compensation pursuant to sections 16 and 19 of the SRC Act.
[12] T97, 302. The covering letter only was reproduced in the Tribunal documents. The reasons for that decision were not included.
Ms Kumar was examined by a rheumatologist, Dr Stephen Potter, who provided two reports dated 31 August 2010, the first, a single page report to Dr Zora Sebez, the general practitioner to whom he explained that his examination was ‘to assess her rehabilitation requirements for the ATO at Hurstville.’[13] The second, longer report, was sent to the ATO rehabilitation manager in which he noted that Ms Kumar was working ‘full time, full hours but some restricted duties, meaning avoiding some of the phone duties and handwriting and screen duties’[14] He formed the opinion that she was suffering from a ‘regional pain disorder’, the symptoms of which could not be anatomically or structurally based and was ‘chronic pain from non-work factors’ without stating what those ‘non-work factors’ might be. He expressed the view that her treatment ‘creates dependency and reinforcement of injury, which is wholly inappropriate’.[15] He advised the ATO that ‘moving her from the same workplace is inappropriate and unnecessary and modifying her duties is unnecessary’ and that she ‘has been led to misbelieve, misperceive and misunderstand the causation involved. This lady originally maintains the workplace as the cause of symptoms, which it is not.’[16] In relation to the suggested ‘non-work’ factors, Dr Potter did advise:[17]
She did not identify to my questioning, any workplace dissatisfaction and did not display to me any nonwork factors. However, when a syndrome has been going for five years, marginally changed, there does not appear to be any satisfactory insight by the patient as to causation. Rather, she becomes quite fixated the cause comes and is due to nature of work and postural change and a lack of care to change that in the workplace since 2005.
[13] T119, 353.
[14] T120, 356.
[15] T120, 357-358.
[16] T120, 359.
[17] T120, 361.
The rehabilitation manager requesting the report appeared to be slightly out of touch with Ms Kumar’s work statue in the next question posed to Dr Potter: ‘Is Ms Kumar not working due to a choice they have made or a psychiatric incapacity to participate in employment?’ Dr Potter had earlier stated that he could not ‘define a specific psychiatric condition’ and responded to the question: ‘Ms Kumar says to me she is happy with the outcome now that she is working after the AAT statement, normal hours and some restricted duties. I see little prospect of a change in that disposition in that regard.’[18]
[18] T120, 361.
Up to 2012, Comcare continued to pay compensation for physiotherapy, remedial massage and pharmaceuticals. Ms Kumar also performed gymnasium-based exercises. By 12 August 2012, Dr Zora Sebez, the treating general practitioner reported to Comcare that treatment, with the aim of enabling Ms Kumar to continue working full time was required. Despite the treatment modalities of physiotherapy and massage being passive therapies, she noted that such treatments had helped Ms Kumar to keep working. Self-management has been attempted in the past but ‘with no success in relieving her neck or shoulder pain’.[19]
[19] T137, 451.
Chiropractic treatment commenced in about 19 September 2012 on being assessed by Dr Stephen Notaras, her treating chiropractor. He commenced treatment and in a later report of March 2013, he was able to advise Comcare:[20]
Since 19th September 2012, the treatment recommendations were 3 treatments per week for 4 weeks and then 2 treatments per week for 12 weeks. She is now being checked and treated every 2 weeks until she no longer suffers symptoms.
[20] T144, 470.
He was able to report measurable improvement ‘in cervical rotation from 60 degrees bilaterally to 70 degrees bilaterally. This was noted on examination on the 21st March, 2013.’ He planned to see Ms Kumar for recurrences of pain on a fortnightly basis but otherwise recommended she maintain her exercise program.
On 14 July 2014, Ms Kumar was assessed by Dr Geoffrey Smith, an orthopaedic surgeon, who provided a report dated 28 July 2014 to Comcare.[21] His report noted:[22]
Ms Kumar is currently working full time in her previous role. She reported a change of role to a different project within the Australian Taxation Office over the last couple of years and this involves less phone calls and less intensity at work. She noted that this coincided with a significant improvement of her symptoms, but this deteriorated somewhat since she has returned to her previous role. Currently, she estimates that her visual analogue scale ranges from 0 to 6 to 7/10 when the pain is a little worse. She does get days where she has no pain whatsoever.
[21] T154, 490-497.
[22] T154, 492.
Mr Smith recommended further physical therapy, he recognised physiotherapy and massage, stating that the role of chiropractic ‘is less well established’ but noted that chiropractic and physiotherapy were both aimed at ‘maintaining levels of function in the cervical spine.’ He thought physiotherapy ‘will be beneficial in the long term, perhaps lifelong.’ [23]
[23] T154, 496.
On 28 November 2019, Dr Notaras, the treating chiropractor, reported to Comcare concerning his continuing fortnightly treatment of Ms Kumar:[24]
I have been treating Mrs Kumar on the basis of relieving her discomfort and she makes the choice of when she wants to attend the clinic. At the moment, it happens to be 2 weekly and coincides with how long she can no longer tolerate her pain. Mrs Kumar pays for her treatment privately and claims whenever she feels is appropriate. My duty to Mrs Kumar is to assist her discomfort at her request and advise her to examine her work ergonomics. The evidence-based chiropractic care is based on improving mobility, range of motion and discomfort on each consultation compared to her presenting range of motion and pain. I am helping Mrs Kumar at her request and have advised long term plans for work position improvements.
[24] T187, 564.
There is evidence of the cost of the chiropractic treatment received. A remittance advice dated 12 August 2021 shows that sessions at that time cost $75.00 on a fortnightly basis.[25]
[25] T197, 590.
In spite of the evidence that Ms Kumar’s chiropractic treatment had, as planned, maintained her in her full-time employment, had resulted in measurable improvement in her range of neck movement, and the frequency of treatment had been reduced from 3 session per week at the outset to fortnightly on an ongoing basis, Comcare wrote on 5 April 2023 to Ms Kumar to decline further payment for that treatment on the ground that ‘Comcare has funded 264 Chiropractic sessions with no long-lasting beneficial outcome’ and that ‘under the clinical framework any further Chiropractic treatment would be considered maintenance which Comcare is not liable to fund.’[26]
[26] T203, 600.
A series of handwritten notes were provided to the Tribunal as part of the applicant’s evidence. I have examined them and take them into evidence as Exhibit A1. A note by Ms Kumar dated 20 September 2023 identifies the fluctuation in her neck pain symptoms from 7.00am at a level between ‘4-6’ and just before finishing work at a level ‘6-7’ and an increase in the pain to the more central part of the base of the neck. There are similar diagrams for:
(a)27 September 2023, showing widespread pain for the whole of that day but reduced pain early the following morning.
(b)11 October 2023, showing fluctuating pain ‘behind ear to whole neck’, ‘burning’ and headache but reduced at 10.30pm.
(c)12 October 2023, showing a similar variation of pain levels from lower in the early morning to higher at the end of the day.
During the course of Tribunal review, Comcare arranged for Ms Kumar to be examined by Dr Anil Nair, an orthopaedic surgeon, on 15 May 2024 and a report of 21 May 2024 was prepared. I will take this report into evidence as Exhibit R1. Dr Nair’s diagnosis is similar to that of Dr Smith, identifying ‘clinical and radiological evidence of cervicothoracic spondylosis’ and that her symptoms are consistent with the identified condition. He added, ‘She described mechanical symptoms which indeed are consistent with cervicothoracic spondylosis.’ As to the relationship to employment, Dr Nair commented ‘The condition has been accepted to be related to employment. Certainly, a repetitive flexed posture over decades can be contributory. There is almost certainly a genetic proclivity towards the development of degenerative joint disease as well.’
His opinion expressed concerning chiropractic case was based on the views commonly expressed within his medical specialty: ‘Ongoing chiropractic care would not be accepted by a quorum of spinal surgeons, nor would it be accepted treatment by the Spine Society of Australia.’ That said, he noted Ms Kumar’s advice that ‘she does experience symptomatic relief’.
Contentions
Comcare argues that the treatment is not directed to the injury for which liability was accepted, being either a disorder unrelated to work in the form of a regional pain disorder or is directed to an ‘underlying’ degenerative disorder, as opposed to the ‘aggravation’ of that disorder and, further, that the treatment is otherwise not reasonable to obtain in the circumstances. Specifically, Comcare submits:
(a)The chiropractic treatment is not obtained in relation to the injury, asserting that ‘the pain and discomfort [Ms Kumar] experiences in her neck is not necessarily attributable to the accepted injury’, and refers to the 31 August 2010 report of Dr Stephen Potter, rheumatologist, who stated that the applicant’s ‘pattern of pain could not be caused by physical injury’, and asserting that there was ‘no structural or anatomical cause’ for the pain which he characterised as a ‘regional pain disorder’ caused by ‘non-work factors.’[27]
(b)In the alternative, Comcare argues, ‘that a distinction may be drawn between the symptoms of the underlying degenerative condition affecting the applicant’s cervical spine and the symptoms of the compensable aggravation of that underlying condition.’ In that regard, Comcare argues that the treating chiropractor, Dr Notaras, who provided a report dated 28 October 2019[28], while stating that the goal of his treatment was to improve the ‘cervical range of motion’ whilst also addressing pain and discomfort in her neck, had ‘not specified that he was treating the symptoms of the aggravation of the applicant’s underlying condition’. The respondent submits that there is a liability for an aggravation of an underlying cervical degenerative condition and that the chiropractic treatment is directed to that underlying disorder, not the aggravation for which it contends liability was accepted.
(c)As to whether the treatment was reasonable to obtain in the circumstances, Comcare points to the opinion of Dr Anil Nair, and orthopaedic surgeon, dated 21 May 2024 who accepts that Ms Kumar experiences symptomatic relief from chiropractic care but points out that such treatment results in no change to the ‘underlying pathoanatomy’.[29] Reference is also made to the opinion of Dr Geoffrey Smith, orthopaedic surgeon in his report of 28 July 2014, some ten years earlier, who considered that there was no ‘long term role for chiropractic treatment’ while conceding that ‘treatment involving acupuncture and massage therapy may be beneficial in the long term in relieving symptoms’.[30]
(d)Finally, Comcare regards the treatment as unreasonable in the circumstances by reference to the Clinical Framework for the Delivery of Health Services published by the Transport Accident Commission and Worksafe Victoria (the Clinical Framework).
[27] T120.
[28] T187, 564-565.
[29] Respondent’s Exhibit 3, answer to question 8, page 6.
[30] T154, 496.
Ms Kumar stated in her review application that chiropractic treatment ‘help with my neck pain, shoulder pain and headaches. Physiotherapy and specific gym-based exercises relieve the shoulder pain and strengthen the shoulder muscles.’ She continued:
5.I have had both physiotherapy & chiropractor treatments. Both treatments provide relief from the pain, however, I find chiropractor treatments, far more effective for the neck pain.
6.In the early stages I was receiving more frequent treatment, i.e., 2 – 3 treatments (physiotherapy and/or chiropractic treatments) per week, along with specific gym exercises with a personal trainer. I was also taking an enormous quantity of pain medicines and was barely able to work a few hours a week. The photos of these particular gym equipment are attached. It is not possible to have the equipment at home.
Now I have 1 chiropractor treatment per fortnight, except for exceptional circumstances, when I may need more sessions due to inflammation and increase of pain severity. Occasionally physiotherapy treatment, some gym-based exercises, which cannot be carried out without the appropriate gym equipment (these exercises were previously suggested by a personal trainer from work solution representative). Due to all these I am now working full time. As I claimed only 1 chiropractic treatment per fortnight in last years, I see it as a big improvement in the condition compared to initial years, reduced pain medicines compared to before to avoid the damage to internal body organs, but it has not, nor will it ever (as advised by the doctors above), return to the same physical condition prior to the injury at work.
a. I visit the Chiropractor on Saturdays, despite of its impact on my personal life. I could have attained these treatments during the week & claimed the time off on compensation grounds. But I did not do it, instead, I used part of my weekend.
Consideration
There are three facts which must be determined in order for there to be an entitlement to compensation for the cost of medical treatment. Firstly, the treatment must be one which conforms to the definition of medical treatment found in subsection 4(1) of the SRC Act. Where the form of treatment in the definition is qualified by the expression, ‘therapeutic treatment’ then that element must also be determined. Secondly, the treatment must be ‘in relation to’ the injury for which there is a liability, and this may give rise to consideration of the injury and its nature. Thirdly, there is a qualification concerning the reasonableness of the treatment in the circumstances. That determination can involve a ‘cost/benefit analysis’ weighing the claimed treatment against alternatives in the light of experience (see Comcare Australia v Rope (2004) 135 FCR 443[31]; Comcare v Holt [2007] FCA 405; (2007) 94 ALD 576).[32]
[31] (2004) 135 FCR 443 at 448 [17] per Stone J.
[32] [2007] FCA 405; (2007) 94 ALD 576 at 582 [26] per Mansfield J.
Therapeutic treatment for the purpose of alleviating injury
There is no dispute between the parties as to whether the chiropractic treatment obtained satisfies the definition of ‘medical treatment’ in subsection 4(1) of the SRC Act. Dr Notaras is a chiropractor registered with the Chiropractic Board of Australia, pursuant to the Health Practitioner Regulation National Law (NSW).[33] That chiropractic treatment must also satisfy the definition of ‘therapeutic treatment’ in that it is ‘given for the purpose of alleviating’ an injury. Alleviation, in the form of ‘action of lightening … pain’ is within the meaning of the term therapeutic (Comcare v Watson (1997) 46 ALD 481).[34]
[33] Respondent Submissions of 20 January 2025 [20].
[34] (1997) 46 ALD 481, 484 Finn J.
I have the report of 28 November 2019, Dr Notaras, the treating chiropractor, that his treatment was provided to Mrs Kumar ‘on the basis of relieving her discomfort’ and that’ evidence-based chiropractic care is based on improving mobility, range of motion and discomfort on each consultation compared to her presenting range of motion and pain.’[35] There was no evidence that his purpose was not as stated. I accept that the treatment given and proposed to be given is therapeutic treatment.
[35] T187, 564.
Treatment ‘in relation to’ the injury or ‘regional pain disorder’
The respondent accepts that Ms Kumar has ‘an accepted work-related injury’[36] for which liability was accepted, but that the treatment she derives benefit from is not ‘in relation to’ that accepted injury.
[36] Respondent Submissions of 20 January 2025 [22].
The first basis for that submission is the opinion of Dr Stephen Potter, who submits that the pain for which she seeks relief is for a ‘regional pain disorder’ caused by ‘non-work factors.’ Dr Potter is a rheumatologist who provided his opinion some 15 years ago on 31 August 2010. He concluded after an examination of that date, that her ‘pain pattern will not recover and will not resolve’ and the pattern of pain would ‘continue, as it has over the last five years.’ He formed an opinion that ‘The causation in the underlying principle relates to motivational change, behavioural change and emotional discord and usually profound aspects of depression.’[37] He added that Ms Kumar ‘has been led to misbelieve, misperceive and misunderstand the causation involved. This lady originally maintains the workplace as the cause of symptoms, which it is not.’[38] It is not clear what facts and circumstances Dr Potter relied upon that constituted the motivational change, behavioural change and emotional discord that he considered to be ‘causation in the underlying principle’.
[37] T120, 355.
[38] T120, 359.
Dr Potter’s view that Ms Kumar’s ‘fixation’ that the nature of her work and postural change might have causative elements, was assessed as an apparent lack of ‘satisfactory insight’ by her as to causation.[39]
[39] T120, 361.
However, in this, Dr Potter is quite alone. The treating practitioners and specialists agree that the nature of the work with the ATO was not responsible for any pain syndrome but for the onset of symptoms of cervical spine degeneration. I note here, the reports of
(a)Dr Theresa Ong, treating general practitioner, dated 27 July 2005 to the effect that her patient had degenerative disc disease in the cervical spine with radiological evidence showing arthritic changes in the facet joints which she stated was related to ‘the nature of her work, which required working at her desk with phone and computer, and review of documents, involving her to be bending and turning her neck on a repeated and continual basis’. She also clearly stated, as noted above, that Ms Kumar had been her patient since 17 December 1998 and there had been no record prior to 2005 of previous neck or back problems.[40]
(b)Dr Ashwin Diwan, the treating orthopaedic surgeon, in a report of 1 September 2005 reported ‘advanced changes of degeneration in the cervical spine and the cervico-thoracic junction’ that he concluded were ‘exacerbated due to the nature of her work’. He considered physical therapy would be ongoing, ‘on a long-term possibly lifelong basis’.[41] In a later report he noted that her symptoms were relieved when away from work and concluded that her posture, a natural part of body structure, does not cause her any problem when she is away from work. He firmed his earlier view on the relationship to employment stating that her symptoms were ‘obviously … related to the nature of her work.’[42] He did not resile from that opinion in his report of 13 October 2006 to Comcare, now describing the effect of her work as causing an aggravation of the condition.[43] In his report of 22 February 2007 he recommended continuation of physical therapy to manage the symptoms, including physiotherapy and massage.[44]
(c)Professor Ehrlich, an orthopaedic surgeon, was engaged by Comcare to examine and report on Ms Kumar and he produced a report dated 13 August 2007.[45] He did not diagnose a regional pain disorder but ‘a degree of cervical spondylosis and disc degenerative disease’ which was the cause of the neck discomfort Ms Kumar experienced. He only dealt with causation, insofar as causing the pathology. He did not deal with employment contribution to a requisite degree to produce an ailment or the aggravation of the ailment.
(d)Dr Geoffrey Smith, another orthopaedic surgeon, engaged by Comcare, reported on 28 July 2014 that he did not diagnose a regional pain disorder. Instead, he concluded that ‘Ms Kumar suffers from cervical spondylosis … a degenerative condition of the cervical spine’. This typically commences with disease within the intervertebral discs progressing to loss of disc height. As a result, increased stress is placed across the intervertebral facet joints which can develop typical osteoarthritic appearances. The aetiology of this condition is of mixed genetic and environmental factors. Clinical signs and symptoms supporting the inclusion is that of the location of the pain, the radiological appearances and the improvement of the pain with injections around the facet joint as well as the temporal history of slow improvement as ankylosis occurs.’ He further stated in relation to the association with work that ‘the prolonged period spent in a stooped posture and with abnormal ergonomics of the cervical spine spent whilst answering a telephone handset whilst also typing may have exacerbated the symptoms due to this condition.’ [46]
(e)Lastly, Dr Anil Nair, an orthopaedic surgeon, reported to Comcare on 21 May 2024 that Ms Kumar’s ‘symptoms are consistent with the condition. She described mechanical symptoms which indeed is consistent with cervicothoracic spondylosis.’[47] He further states: ‘The condition has been accepted to be related to employment. Certainly, a repetitive flexed posture over decades can be contributory. There is almost certainly a genetic proclivity towards the development of degenerative joint disease as well.’[48]
[40] T13, 60.
[41] T20, 75.
[42] T32, 113.
[43] T46, 147.
[44] T58, 172.
[45] T75, 205-209.
[46] T154, 493-494.
[47] Exhibit R1, page 6, answer to question 4.
[48] Ibid, page 6 answer to question 5.
Taken together, I have concluded on the weight of this evidence that there is not a ‘regional pain disorder’ as hypothesised by Dr Stephen Potter. Instead, I find that the applicant suffers from cervical spondylosis, associated with disc degeneration and affecting the facet joints and that this injury either arose out of, or was contributed to, to a significant degree, by her employment with the ATO and is compensable by reference to both paragraphs 5A(1)(a) and (b) of the SRC Act.
Treatment ‘in relation to’ the injury or the ‘underlying’, not the ‘aggravation’ of the degenerative condition of the cervical spine
The second limb of the respondent’s submission that treatment is not ‘in relation to’ the injury relies on a conception that there was a prior ailment which was aggravated by work and that treatment for such an ailment is only compensable for the duration of the aggravation. That proposition assumes that the prior ailment would have, at some specific time, become symptomatic and further, that the effects of such an underlying and symptomatic ailment would have at some stage superseded the effects of the aggravation. To demonstrate proof of such an assertion requires evidence that has not been presented.
In the first instance, I accept the medical opinions that there are genetic and environmental factors that determine the rate and progression of cervical spondylosis and disc degeneration. That may well have been a process that started years earlier. However, the evidence shows that the pain and limitation of movement, or stiffness, affecting the neck came on over a limited period of time in 2005 as a result of the work Ms Kumar was performing at the ATO office in Hurstville which were stated to be ‘repetitive activities of reviewing documents and continuous use of computer keyboard’.[49] I accept Ms Kumar’s statement that she had not suffered these symptoms before the onset in 2005. That conclusion is strengthened by Dr Thresa Ong’s report of 27 July 2005 that she had been Ms Kumar’s treating general practitioner since 1998 and had not received a complaint concerning neck pain or stiffness prior to the onset in 2005.[50]
[49] T10, 42-49.
[50] T13, 60.
There is no evidence before me from which a definite inference could be drawn that at any stage prior to the date of the termination of the specific compensation benefits in 2023 that developing cervical spondylosis would, unaided by employment contribution, have become symptomatic. There is no basis upon which to conclude that it would have become symptomatic at some time between 2005 and the present date. I also take into consideration the opinion of Mr Smith given in 2014 that while ‘disc degeneration is part of the natural ageing process, the development of her cervical spondylosis is not a part of normal ageing.’[51]
[51] T154, 495.
The employment injury led to the symptomatic expression of that disorder for the first time and there has been no recovery. So, while there has been an ‘aggravation’ of an ailment, the asymptomatic disc degeneration, the injury for the purposes of the SRC Act is that symptomatic aggravation of that ailment to which employment contributed to in a significant degree and resulted in incapacity for work and impairment. That symptomatic aggravation has not ceased. Ms Kumar still experiences pain in the affected areas to which her therapeutic chiropractic treatment is directed.
Accordingly, I have concluded that the treatment is ‘in relation to’ her compensable injury.
Treatment that is reasonable to obtain in the circumstances
The other limb of the respondent’s argument concerning reasonableness is framed in the light of the Clinical Framework, a document that originated from the Victorian WorkCover Authority (VWA) and the Victorian Transport Accident Commission (TAC). Comcare’s submission acknowledged that while it had been applied by various decision makers in the former Tribunal,[52] it accepted that ‘it is not determinative and does not rise to the level of policy and, to that extent, care must be taken when using the Clinical Framework to assess the reasonableness of medical treatment’.
[52] Referring to Alamos and Comcare [2014] AATA 629, Durham and Comcare [2014] AATA 753, and Bayani and Australian Postal Corporation [2015] AATA 342.
Comcare referred me to the decision of the former AAT in Heales and Comcare [2018] AATA 3788 that the caution to be exercised in relation to the Clinical Framework was based on an appreciation that it is not a Commonwealth government policy authorised by statute and lacked the weight attributed to policy by case law, a reference to the decision in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634,[53] that the Tribunal ought, in the exercise of a statutory discretion, follow an authorised Ministerial policy document unless there is cogent reason for not doing so. Being a document formulated to directly refer to the provisions of the Transport Accident Act 1986 (Vic) and the former Accident Compensation Act 1986 (Vic), the Clinical Framework does not set out to provide an interpretation of section 16 of the SRC Act. Its principles do not directly relate to the choice of treatment, a typical feature of the enquiry under section 16 of the SRC Act. The ‘strong guidance’ in the Clinical Framework to ‘constrain treatment to prevent over-servicing’ does not necessarily equate to reasonableness of treatment of a particular injured employee. Further, a form of treatment falling short of ‘best practice’ may still be reasonable.
[53] (1979) 2 ALD 634 at 644-645 per Brennan J, President.
Nevertheless, calling the Clinical Framework in aid of its submissions, the respondent urged the adoption of the following arguments:
(f)That chiropractic care, ‘being a form of passive therapy, does not promote self-management by the applicant of her injury’ and may create ‘dependency and reinforcement of injury’ within the applicant.[54]
(g)There is no ‘planned or anticipated end-date’ for this treatment.’[55] There has been no improvement of the range of cervical motion since March 2013 and there is no other goal apparent other than ‘alleviating her pain’.[56]
(h)Were treatment to be based on the ‘best available research evidence’ then the evidence shows little support for ongoing chiropractic care. The expert opinion of Dr Nair was referred to but only to the extent of his statement in the 21 May 2024 report ‘ongoing chiropractic care would not be accepted by a quorum of spinal surgeons, nor would it be accepted treatment by the Spine Society of Australia’.[57]
(i)An argument was raised concerning the cost/benefit analysis ‘weighing the benefit of the treatment against the cost of obtaining it’ and referring to the availability of similar benefits from alternative treatment at a lesser cost. No alternative therapy was identified but it was submitted that the absence of permanent relief from pain should inform the decision as to reasonableness of continued access to such treatment.[58]
[54] Respondent Submissions of 20 January 2025 [38], [40].
[55] Ibid [41].
[56] Ibid [42]-[44].
[57] Ibid [45]-[47].
[58] Ibid [48]-[49].
Firstly, ‘passive therapy’ deprecated by the Clinical Framework is nonetheless therapy. The point of the attack on this form of therapy is the risk of dependence and is an apparent reference to the Clinical Framework’s principle ‘empowering the injured person to manage their own injury’.
That risk is to be weighed against the chronicity and persistence of injury in this case. It has continued for over twenty years and is likely to continue indefinitely. Self-management does not necessarily equate to termination of treatment. The Framework itself refers to management of medication use, participation in regular exercise, reduction (but not necessarily termination of) treatment frequency, and in respect of the impugned ‘passive therapies’ merely that the role of the health care professional should decrease but even then, only in the context of progressive recovery.[59]
[59] Clinical Framework Principle Three pages 9-12.
The March 2013 report of Dr Notaras, the treating chiropractor, was cited by Comcare as showing that from 2013 onwards, there was no measurable benefit. That report by Dr Notaras stated that at the beginning of his treatment there were ‘3 treatments per week for 4 weeks and the 2 treatments per week for 12 weeks. She is now being checked and treated every 2 weeks.’[60] He reported measurable improvement ‘in cervical rotation from 60 degrees bilaterally to 70 degrees bilaterally.’ He continues to see Ms Kumar on a fortnightly basis ‘for recurrences each 2 weeks’ and recommended ‘she should maintain her exercise program recommended by her previous health practitioners.’
[60] T144, 470.
I consider this report demonstrates a considerable degree of success of chiropractic treatment, even if taken in conjunction to the efforts of other practitioners and the modification of her work situation to avoid exacerbations.
The continuation of the treatment is to manage the injury which is now chronic. I accept that this is prudent management of a chronic, lifelong condition. This very fact weighs against the submission that the absence of a ‘planned or anticipated end-date’ as a factor discounting the worth of the treatment.
I have already referred to the evidence of Dr Ashwin Diwan, the treating orthopaedic surgeon, in a report of 1 September 2005 who considered physical therapy would be ongoing, ‘on a long-term possibly lifelong basis.’[61] I also rely on the opinion of Dr Smith who, while considering the role of chiropractic ‘is less well established’ did note that chiropractic and physiotherapy were both aimed at ‘maintaining levels of function in the cervical spine.’ He thought physiotherapy ‘will be beneficial in the long term, perhaps lifelong.’ [62] Dr Smith did not offer any evidence, let alone formed any view, that chiropractic treatment is so radically different to physiotherapy as to discount its effectiveness. The report of Dr Notaras in 2013 is the best evidence of the effectiveness of the treatment.
[61] T20, 75.
[62] T154, 496.
I also accept that the step down in treatment to manage ongoing recurrences reflects a good degree of self-management on the part of the applicant. I do not accept this regime as a mindless expression of dependence but a prudent management of chronic symptoms.
The argument of the respondent that chiropractic treatment has not ‘addressed the underlying issues that cause her pain’ citing Dr Nair’s statement that it will not alter the applicant’s ‘underlying pathoanatomy’ lacks any substance. Chiropractic treatment is not surgery. It is non-invasive. Dr Nair is an orthopaedic surgeon, but his report does not suggest a role for surgical intervention to alter the ‘underlying pathoanatomy’ in the present case. Dr Diwan advised as early as 22 February 2007 that he encouraged ‘non-operative options’ which included continuation of physical therapy.[63] The absence of any alteration of ‘pathoanatomy’ in such a chronic condition that is not amenable to invasive surgery is irrelevant.
[63] T58, 172.
The next criticism by the respondent is the submission that Dr Notaras has not demonstrated the application of a ‘biopsychosocial’ approach. No further detail about this alleged failure is offered. This approach is mentioned in the Clinical Framework Principle Two. The expression is popular in medical circles and was first coined by George Engel in his 1977 paper entitled ‘The need for a new medical model: a challenge for biomedicine’ published on Science on 8 April 1977. The abstract to the paper stated: ‘The dominant model of disease today is biomedical, and it leaves no room within this framework for the social, psychological, and behavioural dimensions of illness. A biopsychosocial model is proposed that provides a blueprint for research, a framework for teaching, and a design for action in the real world of health care.’
While the model is popular, it has been increasingly criticised for being ‘vague, useless, and even incoherent - clinically, scientifically and philosophically.’[64] That is a criticism that I accept. It is unclear from the use of this expression in the Clinical Framework as to what is the intended content of this approach. There is little wonder that Dr Notaras might be criticised for not demonstrating it. The respondent does not suggest that any other practitioner demonstrates such an approach or by what yardstick this is to be measured. In the context of the determination of an entitlement to specific medical treatment I find such a ‘biopsychosocial approach’ is meaningless and unhelpful.
[64] The Biopsychosocial Model of Health and Disease - New Philosophical and Scientific Developments. Derek Bolton and Prof. Grant Gillett. Palgrave Pivot; 2019.
The submission from ‘best available research evidence’ is not well supported and rests solely on the comment of Dr Nair that ‘chiropractic care would not be accepted by a quorum of spinal surgeons, nor would it be accepted treatment by the Spine Society of Australia.’[65] A quorum of spinal surgeons is not ‘research evidence’. No ‘research evidence’ was identified to suggest chiropractic treatment is contraindicated.
[65] Exhibit R1, page 6, answer to question 7.
Finally, the respondent submits that a ‘cost/benefit analysis favours a finding that it is not reasonable for the applicant to continue to obtain chiropractic treatment in relation to her injury, having regard to the length of time over which the applicant has already obtained chiropractic care, the number of sessions she has attended, and the limited benefits it has provided.’ That submission does not constitute a cost/benefit analysis.
The evidence shows that the cost of the chiropractic treatments in about August 2021 was $75.00 per fortnight, or about $1,950.00 per annum.[66] The total cost for the period from the date of the termination of compensation benefits from April 2023 up to 6 September 2024 was ‘$2,160.00 + $160.00’ according to the respondent’s Statement of Position dated 27 September 2024.
[66] T197, 590.
In that time, Ms Kumar was continuing to manage her symptoms. Indeed, she advised the Tribunal in her submissions that she visits the chiropractor on the weekend to avoid taking time from work. The treatment and control of recurrent symptoms aids in the maintenance of work. The economic benefit to the Commonwealth from retaining the services of an employee is a benefit to weight in favour of the applicant’s continuation of that treatment. Even if the applicant were no longer employed, the maintenance for control over recurrent symptoms may prevent deterioration and the potential for surgical intervention. Dr Diwan did report that such treatment would be recommended when ‘symptoms are resistant to these non-operative modalities.’[67] Weighing the cost of such surgery and the consequential post operative recovery period with potentially increased ongoing medical intervention against the costs of chiropractic care favours the continuation of compensation for the costs of chiropractic treatment.
[67] T58, 172.
Accordingly, I find that chiropractic treatment of Ms Kumar’s injury is therapeutic medical treatment that is ‘in relation to’ the symptomatic cervical spondylosis associated with disc degeneration and affecting the facet joints that arose out of and was contributed to, to a significant degree, by her employment with the Commonwealth. From 1 April 2023 to the present date and at the present date, that treatment was reasonable for Ms Kumar to obtain in the circumstances, and she is entitled to compensation pursuant to section 16 of the SRC Act for the cost of that treatment.
Dated: 28 July 2025
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