Kumar and Comcare (Compensation)
[2025] ARTA 112
•19 February 2025
Kumar and Comcare (Compensation) [2025] ARTA 112 (19 February 2025)
Applicant/s: Jayanthi Kumar
Respondent: Comcare
Tribunal Number: 2023/7035
Tribunal:General Member M. Carey
Place:Melbourne
Date:19 February 2025
Decision:The Tribunal sets aside the decision of 28 August 2023 under review and in substitution decides:
From 13 June 2023 to the present date and at the present date the Applicant remains entitled to compensation pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988 for medical treatment in the form of massage therapy, being therapeutic treatment obtained at the direction of a legally qualified medical practitioner.
.................................[sgd].......................................
General Member M. Carey
Catchwords
COMPENSATION – entitlement to compensation for medical treatment – massage treatment – whether treatment obtained in respect of injury – nature of injury – whether the effects of injury continue – treatment for those effects – whether treatment is reasonable to obtain in the circumstances – cost/benefit analysis includes utility of treatment to maintain employee at work involving high degree of concentration – concentration adversely affected by symptoms of pain and spasm - Clinical Framework of limited utility – claimant entitled to compensation pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988
INJURY – nature and scope of injury – injury in the medium of disease is injury in the primary sense when pathophysiological change arises from trauma arising out of or in the course of employment – no resort to statutory test for primary liability for acceptance of liability for injury when assessing whether effects of injury continue at time when specific compensation claimed – test requires assessment of evidence to draw factual conclusion as to whether treatment is ‘in respect of’ injury for which liability accepted
EVIDENCE – expert opinion evidence – opinion expressing legal standard – exclusion of evidence of opinion – inappropriate delegation of ultimate issue to expert
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australia Act 1986 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Workers Compensation Act 1951 (ACT)
Workmen’s Compensation Act 1905 (UK)Cases
Abrahams v Comcare (2006) 93 ALD 147
Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533
Casarotto v Australian Postal Commission (1989) 17 ALD 321
Comcare v Holt [2007] FCA 405; (2007) 94 ALD 576
Comcare Australia v Rope (2004) 135 FCR 443
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 116 CLR 537
Eaves v Blaenclydach Colliery Co Ltd (1909) 2 KB 73
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Health Insurance Commission v Van Reesch and Anor (1996) 45 ALD 302
Hume Steel Ltd v Peart (1947) 75 CLR 242
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Liu and Comcare (2004) 79 ALD 119
McAuliffe v Comcare [2002] FCA 769
Migge v Wormald Bros. Industries Ltd (1972) 2 NSWLR 29
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641; (2017) FCR 516
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Plumb v Comcare (1992) 39 FCR 236
Prain and Comcare [2016] AATA 459
Prain v Comcare [2017] FCAFC 143; (2017) 256 FCR 65
Proctor and Commissioner of Taxation (2005) AATA 389; (2005) 87 ALD 247
R v Palmer [1981] 1 NSWLR 209, 214; 1 A Crim R 453
Re Commonwealth of Australia v Keith Colville Smith [1989] FCA 189; 10 AAR 277
Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136
Re Jorgensen and Commonwealth (1990) 23 ALD 321
Salisbury v Australian Iron and Steel Co Ltd (1943) 44 SR (NSW) 157
Slazengers (Australia) Ltd v Burnett [1951] AC 13
The Commonwealth v Oliver [1962] HCA 38; (1962) 107 CLR 353
Wood v Harrigan [1929] WCR 41
Woodhouse v Comcare [2021] FCAFC 95; (2021) 285 FCR 14
Wills and Comcare [2024] AATA 1480
XYZ v State Trustees Ltd [2006] VSC 444Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Secondary Materials
Clinical Framework for the Delivery of Health Services
Statement of Reasons
Contents
Statement of Reasons
Introduction
Legislation
Contentions
Background
The injury of 13 July 2009
Treatment ‘obtained in relation to the injury’
Comcare’s submission that Ms Kumar suffers solely from ‘disease’ to which employment does not contribute to a significant degree at the time the decision was rejected
Treatment that is reasonable to obtain in the circumstances
Introduction
Dr Jayanthi Kumar has an entitlement to compensation for an injury to her neck, upper back, shoulder and arms sustained on 13 July 2009 when she suffered a fall on stairs at her place of work and during her normal working day at the Defence Materials Organisation at Victoria Barracks on St Kilda Road at Southbank in the State of Victoria. This was an injury arising out of and in the course of her employment pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
It is now more than 15 years from the time when the injury was sustained. Dr Kumar has been treated by a variety of therapies in that time but, at least since 2015, Comcare has only paid compensation for massage therapy. For how long should massage therapy continue? Comcare has continued to pay compensation up to 13 June 2023 for such massage therapy but now says that it is no longer treatment for a relevant injury and in any event, it is not reasonable for Dr Kumar to continue to obtain such massage therapy in the circumstances for her condition.
Dr Kumar had originally made a claim for compensation on 3 May 2010, some months after the injury on 13 July 2009. At the time of her claim, her condition was diagnosed as ‘musculoligament strain with nerve encroachment at cervical spine C5-C6; pain in upper back; tender ++ (limited rotation of neck; soft tissue injury)’.[1] The employer advised when the claim was made that Dr Kumar had only taken time off work for initial medical treatment and had returned to work the day following the injury on 13 July 2009.
[1] T3, 12. 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.
The liability to pay compensation was accepted by Comcare pursuant to s 14 of the SRC Act but the description of the injury was given as ‘thoracic sprain (right); neck sprain (right); sprain of unspecified site of shoulder & upper arm (right); sprain of unspecified site of elbow & forearm (right) and hand sprain (right)’.[2]
[2] T11, 55–62.
Comcare determined on 13 June 2023 to cease further payment of compensation for massage therapy.[3]
[3] T48, 197–8.
Dr Kumar asked Comcare to review that decision because she found massage therapy to be the most effective treatment for her in relieving symptoms and stated that without massage therapy, her continuing capacity for work that demanded a high degree of concentration was compromised.
Comcare’s reviewable decision of 28 August 2023, ceasing compensation, concluded that ‘continued massage therapy is not reasonable for you to obtain in your circumstances’. The decision maker’s argument, as set out in the reviewable decision under review, can be summarised as follows:[4]
(a)Compensation for medical treatment had to be ‘effective, have a biopsychosocial approach, empower you toward self-management, be goal-focused and be evidence-based’, an approach summarised from Clinical Framework for the Delivery of Health Services (the Clinical Framework).
(b)Since the date of injury, Dr Kumar had undertaken ‘over 400 massage therapy sessions’ and that such treatment continued on a more or less weekly basis.
(c)The opinion of the treating general practitioner, Dr Khoosal, that ‘massage therapy … used in conjunction with physiotherapy, myotherapy and Pilates’ is required to relieve her symptoms, and the opinion of Dr Manolopoulos, that the reported symptomatic relief demonstrates the effectiveness of that treatment did not, in the opinion of the Comcare decision maker, ‘support that massage therapy is providing you with a measurable benefit or improving your condition’.
(d)Further, the opinions relied upon by Dr Kumar did not contain any ‘goals’, let alone ‘SMART (specific, measurable, achievable, relevant and timed)’ goals.
(e)Finally, the decision maker concluded that continued massage therapy does not allow you to become fully independent in the self-management of your compensable conditions.
[4] T52, 209–10.
Legislation
The decision under review concerns the continuing entitlement to compensation for medical treatment pursuant to s 16(1) of the SRC Act on and from 13 June 2023. The relevant section states:
(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.
There are two key questions to be asked and answered in relation to this review:
(a)In relation to any massage therapy from 13 June 2023 to the present date and at the present date, was it ‘obtained in relation to the injury’?
(b)In respect of such treatment obtained, was it ‘treatment that … was reasonable for the employee to obtain in the circumstances’?
Comcare does not contest that the treatment conforms to the definition of ‘medical treatment’ being ‘therapeutic treatment obtained at the direction of a legally qualified medical practitioner,’ such therapeutic treatment ‘given for the purpose of alleviating, an injury’ [see s 4(1) SRC Act definitions of ‘medical treatment’ in sub-paragraph [b] and ‘therapeutic treatment’]. This accords with the way Comcare accepted treatment expenses prior to 13 June 2023 which were obtained at the direction of Dr Khoosal, the treating general practitioner, or other doctors at the same clinic in Brunswick over the years.
Injury, in relation to these massage treatments, is that injury for which there is a liability pursuant to s 14 of the SRC Act which states:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
The word ‘impairment’ used in the entitling provision just referred to is defined in s 4(1) of the SRC Act:
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
If an impairment is likely to continue indefinitely, then it may be regarded as ‘permanent’. Again, in s 4(1) of the SRC Act:
permanent means likely to continue indefinitely.
While the liability for injury in general requires the finding that the ‘injury results in death, incapacity for work, or impairment’, such is not the case to the entitlement for compensation for the cost of medical treatment. By subsection 16(2) of the SRC Act Comcare’s liability to pay for medical treatment ‘applies whether or not the injury results in death, incapacity for work, or impairment’.
The word ‘injury’ used in s 14(1) of the SRC Act is defined in s 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.
Further, in relation to the definition of ‘injury’ and its use in the remainder of the Act, it is relevant to note the provisions of s 4(8) of the SRC Act:
(8) A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee in respect of which compensation is payable under this Act.
Incapacity payments are not in issue in this review, but incapacity for work is a relevant factor to be considered if medical treatment can maintain an employee’s engagement in work rather than allowing symptoms of injury to cause the cessation of work. At s 4(9) of the SRC Act, the following guidance is offered:
(9)A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
Contentions
Dr Kumar contended that her injury was sustained while she was on duty on 13 July 2009 and that once the initial bruising and swelling on the body to her shoulders, arms and legs that developed after the fall subsided, she experienced worsening pain in the neck to the shoulders, mostly the right side of the neck and at times causing pins and needles to the right arm and hand. She did not want to take anti-inflammatory medication because she had used it in the past and that caused problems for her stomach. She did not want to have surgery, and in any case, while it had been considered in the past at one stage, her condition was such that it was not of benefit to her. She had previously had other physical therapies but had found massage to be preferred.
Comcare had previously ceased liability for massage therapy by decision on 11 November 2015 which was affirmed on internal review on 29 January 2016.[5] Dr Kumar settled a subsequent review application in June 2017 by a consent order pursuant to s 42C of the Administrative Appeals Tribunal Act 1975 (AAT Act) that set aside that reviewable decision and allowed liability to pay compensation for ‘massage therapy in relation to the injury suffered on 13 July 2009’.[6]
[5] T38, 149–53.
[6] T40, 156.
Dr Kumar’s experience of massage leads her to the conclusion that it assisted in the management of pain and allows her to perform a greater range of activities of daily living, but also to perform her employment tasks without the distraction and loss of concentration. She has maintained her employment without recourse to significant loss of time from employment but the demands of concentration on complex material is compromised by recurring build-up of discomfort, stiffness, pain and restriction of movement. With massage she is better able to cope with the demands of her work which other forms of treatment, such as the use of anti-inflammatory medication, do not provide. She related that she suffered from vertigo and severe headaches when the pain and stiffness increased. She related that she associated these symptoms to her injury but conceded in evidence that the vertigo might be attributable to an inner ear condition, and the headaches, sometimes referred to as migraines, might be attributable to other causes.
Comcare submits that the reviewable decision made on 28 August 2023 to cease liability for continuing treatment by way of massage is the correct decision and ought to be affirmed. Comcare accepts that the massage treatment obtained does conform to the definition of ‘medical treatment’, being ‘therapeutic treatment obtained at the direction of a legally qualified medical practitioner’. However, Comcare submits that the decision ought to be affirmed because:
(a)The treatment is not ‘obtained in relation to the injury’ but in relation to a non-employment ailment.
(b)In any event, it was not ‘reasonable for the employee to obtain in the circumstances’, for reasons set out in the reviewable decision that were derived from the Clinical Framework.
Comcare’s Statement of Facts, Issues and Contentions focussed on the contention that ‘the accepted injuries no longer result in a requirement for medical treatment’ pursuant to s 16 of the SRC Act and advanced the argument that the Applicant’s ‘employment with the Department of Defence did not contribute to, to a significant degree, the claimed ailments. Medical treatment on and from 13 June 2023 was to treat an underlying ailment (age related constitutional factors), and not the accepted injuries’.
Comcare’s submissions went further to assert that the present condition was not injury in the primary sense as provided for in s 5A(1)(b) of the SRC Act, but a ‘disease’ provided for by s 5A(1)(a) and s 5B of the SRC Act. Further, the ‘causative threshold for liability’ had to be continually met. In relation to a disease, if there was not, at the time the compensation entitlement was being considered, a ‘significant contribution’ from employment to an ailment that was formerly a ‘disease’ for the purposes of the Act, then compensation was not payable. This was said to arise from decisions of the Full Court of the Federal Court of Australia, Prain v Comcare [2017] FCAFC 143; (2017) 256 FCR 65 (Prain), Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 (Katterns); (2017) FCR 516 and Woodhouse v Comcare [2021] FCAFC 95; (2021) 285 FCR 14 (Woodhouse).
I will firstly address the issue of whether the massage therapy is ‘in respect of’ the injury for which there is a liability to pay compensation. Out of a certain looseness of expression, the discussion in the hearing tended to use the expression ‘results in’ linking the injury with the treatment. That is certainly the test in respect of weekly compensation payments for incapacity under s 19 of the SRC Act, but that is not part of s 16 relating to medical treatment where the expression is whether the treatment is ‘in respect of’ the injury. As the submissions were developed, no harm was done by these references since the Respondent’s argument was that there was no possible association between the 2009 injury and the present treatment, regardless of the expression in the section. These reasons will also set out findings and application of the test for association between the claimed treatment and the injury. That will require some examination of the nature of the injury and consideration of how treatment is ‘in respect of’ that injury. In doing so, I will have regard to legal authorities concerning the approach to be taken to the termination of particular benefits. At that point, I will deal with the submissions of Comcare regarding the possibility of terminating liability for injury on the grounds that it must be considered a ‘disease’, and that once there is no continuing ‘significant contribution’ at the time compensation benefits were ceased, is not the correct test to be applied. Finally, I will deal with the question of whether the treatment is reasonable for the Applicant to receive in the circumstances.
Background
Dr Kumar was born and raised in India, coming to this country with her husband in 1994 having already completed a degree course in Electrical Engineering. She completed her PhD in Software Engineering from RMIT University in Melbourne, following which she did some paid employment with Coles/Myer but also did full-time lecturing in her field at LaTrobe University between 2003 and 2005. She later commenced work for the Defence Material Organisation at Victoria Barracks. She had been employed from 10 December 2007, about 18 months prior to her injury.[7]
[7] T3, 19.
At the time of her injury, she was engaged at the APS 6 Level as a ‘Project Scheduler’. Her normal ordinary time hours of duty were 37 hours and 30 minutes per week. She has been promoted since that time to the Executive Level 1 (EL1). Since the Covid pandemic she worked much time at home and continues to work from home, but has a workplace now at the Defence Centre in the city area of Melbourne.
It is important to note that the duties as a ‘Project Scheduler’ required many hours of continuous concentration on data projected onto a large computer screen, later modified to two separate computer screens. These duties were performed at a high level and relied upon her training and skills in software engineering to maintain progress of various projects undertaken by the Defence Materials Organisation.
Shortly prior to the injury suffered giving rise to the entitlement to compensation, she had previously suffered pain affecting the neck and shoulder. A workstation assessment was recommended by her treating doctor.[8] In her subsequent claim form after the injury, she was asked about whether she had ever had a similar symptom and she answered, ‘Neck, caused due to incorrect arrangements at work. Ergonomic assessment was carried out; following this I was alright’.[9]
[8] T9.
[9] T3, 13.
The injury of 13 July 2009
At about 10:25am on 13 July 2009, Dr Kumar was at D1 Block at the Victoria Barracks when she walked down the staircase to pick up a visitor from the North Gate. While doing so, she slipped on the staircase and rolled over 4 to 5 steps and then slid down a further 3 to 4 steps. According to the Defence OHS Incident Report completed by her manager on 16 July 2009, she suffered strains to the neck, back and right side as well as bruises to the hands, legs and elbows.[10] She made a casualty report on site and was provided ice packs to be applied to the painful areas.[11] She was 48 years of age at the time of the injury.
[10] T6, 30–1.
[11] T5, 29.
There was an ergonomic assessment of her workstation, and a fully adjustable high-backed chair was provided.[12]
[12] T8, 42.
Immediately following the injury, Dr Kumar was treated at the workplace casualty station with ice packs. The following day she attended Dr Khoosal, her treating general practitioner, whose notes recorded ‘fell and injured whole body at work slipped on stairs’.[13] The next visit to Dr Khoosal on 24 July 2009 recorded:[14]
having pain back of neck and shoulders
getting worse
muscular strain
had a fall over 10 steps
advised to have physiotherapyDr Kumar stated that over time the pain in the neck and shoulders, particularly to the right side and radiating to the right arm, had grown slowly worse until she was referred for x-ray at Brunswick Medical Imaging which reported, in relation to the cervical spine: ‘There is loss of the normal cervical lordosis. There is mild osteophyte formation and disc space narrowing seen at C5/6 and C6/7 with mild osteophyte formation seen at C3/4 and C4/5. The facets appeared within normal limits. There is encroachment upon the right C5/6 foramen’.[15]
[13] R1, Notes of Betta Health Clinic, Brunswick, 125.
[14] Ibid.
[15] T7, 32.
Shortly after that x-ray, on 28 April 2010, Rebecca Owen of Konekt Australia Pty Ltd, a rehabilitation provider, took a history from that time that included:[16]
Ms Kumar reported that physiotherapy treatment was expensive and tried massage and self-managed exercises to treat her pain symptoms. Ms Kumar reported that she also took Mobic (medication) and within a few months her pain symptoms improved.
Ms Kumar reported that over the last 2-3 months she has noticed that her upper back, neck and shoulder pain has re appeared and is becoming worse. Ms Kumar reported that she was having difficulty concentrating at work due to pain.
Ms Kumar had by then tried a variety of treatments including anti-inflammatory medication, myotherapy and acupuncture. Physiotherapy treatment, while attempted, was thought to be too expensive.[17] The symptoms reported on the date of the consultation were reported:[18]
· Constant neck, upper back and shoulder pain
· Pain symptoms increase during the day, affecting ability to concentrate and focus at work
· Increased pain at night leading to difficulty with sleeping
· Reduced activity and exercise due to pain and fatigue
[16] T8, 34.
[17] T10, 50; T8, 39.
[18] T8, 35.
Dr Kumar was referred to Monash Neurology, and on 13 July 2010 Professor Dominic Thyagarajan, Director of Neurology at Monash Neurology, reported to Dr Khoosal that a CT scan had been performed on 12 May 2010 and following examination and review of the radiology:[19]
… She works in the Defence Department as a Project Manager and in July 2009 slipped on a staircase, slipped down a few steps and then rolled down for a total of about 10 steps. She didn’t hit her head and didn’t suffer any immediate consequences but a day later developed mid-cervical neck pain radiating down towards both shoulder tips. Sometimes on the right the pain travels down the arm to the hand. It is a sharp pain which fluctuates in severity and on one occasion was relieved somewhat by physiotherapy but this was only of temporary benefit. There is no increase in the pain with coughing or sneezing and she has no sensory symptoms. She is otherwise in good health except for hypercholesterolaemia.
In October 2009 she took Mobic which helped but it caused constipation, and she discontinued it. She has tried Voltaren which didn’t help.
She had a CT of the neck done on 12/5/2010 which I reviewed, and it shows rather severe degenerative arthritis of the C5/6 and C6 level with prominent osteophytes indenting the thecal sac. I thought on the right at the C5/6 level the osteophytes encroach onto the neural exit foramen but only to a mild degree.
The neurological exam was completely normal.
[Dr Khoosal], I think the problem is that she has severe spondylotic changes in the neck and the fall has caused pain arising from osteoarthritis. There are no signs on the examination that she has a radiculopathy. However, some of the osteophytes do encroach onto the neural exit foramen so I have arranged an MRI of the cervical spine at John Fawkner which is easily reachable for her at work. Then I shall review her afterwards. Given the normal neurological exam, I don't think she warrants any surgical therapy and it might simply be a case of continuing with non-steroidal anti-inflammatories, physiotherapy, etc. I shall review her after the MR.
[19] T12, 63.
The MRI scan was performed and reported by Professor Thyagarajan to Dr Khoosal on 3 August 2010 as showing ‘multi-level disc osteophyte complex formation in association with moderate to severe disc degeneration, extending from C3/4 to C6/7 inclusive. The right C5/6 exit foramen is moderately stenosed, probably accounting for the right brachialgia, but the other neural exit foramina are satisfactory. There is no canal stenosis’.[20]
[20] T13, 64.
Over the succeeding years Dr Kumar continued to experience symptoms of right arm and neck pain, at times more severe, but with a consistency of nature despite the fluctuating course. Several expert medical practitioners have made assessments of Dr Kumar from time to time over succeeding years which reflect a common view of the continuation of symptoms emanating from the neck, particularly at the C5/6 level, and the right brachial plexus with symptoms expressed through the shoulder and to the right arm. The more distal symptoms fluctuate from time to time, but the neck and right brachial plexus symptoms have been most consistently experienced since the date of injury.
The following is a summary of the opinions of health practitioners from which I base my conclusions as to the continuity of the effects of the injury from 2009.
It was not until 1 April 2010 that Dr Kumar was referred to Brunswick Medical Imaging and the x-ray was reported by Dr Mark Scott as demonstrating ‘loss of the normal lordosis’ of the cervical spine and ‘mild osteophyte formation and disc space narrowing seen at C5/6 and C6/7 with mild osteophyte formation seen at C3/4 and C4/5. The facets appeared within normal limits. There is encroachment upon the right C5/6 foramen’.[21]
[21] T7, 32.
Later that month, she was referred by her employer to a rehabilitation provider, Konekt Australia Pty Ltd, for a ‘needs assessment and ergonomic assessment report’. The consultant recorded that ‘at the time of the injury, Ms Kumar underwent an ergonomic assessment and was provided with a new office chair. Ms Duckworth [the employer’s rehabilitation officer who organised the referral] reported that Ms Kumar did not submit a claim and her symptoms appeared to resolve. Ms Duckworth reported that Ms Kumar has recently reported that her pain symptoms have been re aggravated and that she has been advised by her GP that she requires physiotherapy treatment’. The report continued: ‘Ms Kumar reported that physiotherapy treatment was expensive and tried massage and self-managed exercises to treat her pain symptoms. Ms Kumar reported that she also took Mobic (medication) and within a few months her pain symptoms improved. Ms Kumar reported that over the last 2-3 months she has noticed that her upper back, neck and shoulder pain has re appeared and is becoming worse. Ms Kumar reported that she was having difficulty concentrating at work due to pain’. The symptoms of pain were said to be constant, affected her ability to concentrate during the day and caused difficulty at night with sleeping and resulted in reduced activity and exercise due to pain and fatigue.[22]
[22] T8, 34–5.
These symptoms were assessed against her described work activities:[23]
[23] Ibid, 37.
Ms Kumar reported that her duties are almost entirely computer based including: keyboarding and mouse operation to perform data entry and developing/maintenance of spreadsheets.
Other duties also include: telephone operation, reading, writing, filing, printer and fax operation, attendance meetings.
The summary of the physical demands of her duties included:
· Constant sitting
· Occasional walking
· Frequent bilateral upper limb use: gross motor movement and fine motor movements to operate keyboard, mouse and telephone
· Infrequent standing
· Continuous visual input from computer monitor
· Frequent talking
The cognitive demands of her work were said to be ‘[c]onstant and sustained concentration’.
Dr Kumar also noted that Voltaren and myotherapy provided only little or temporary relief from pain symptoms in April 2010.[24]
[24] T8, 39.
The ergonomic assessment recommended that Dr Kumar should be provided an optimal workstation, telephone headset and flat screen monitor.[25]
[25] T8, 47.
Dr Kumar underwent CT scanning on 12 May 2010 which, in the opinion of Professor Thyagarajan showed ‘rather severe degenerative arthritis of the C5/6 and C6 level with prominent osteophytes indenting the thecal sac. I thought on the right at the C5/6 level the osteophytes encroach onto the neural exit foramen but only to a mild degree’. He wrote to the treating general practitioner stating that ‘she ha[d] severe spondylitic changes in the neck and the fall has caused pain arising from osteoarthritis’, and while there was no sign of radiculopathy, ‘some of the osteophytes do encroach onto the neural exit foramen’. He recommended an MRI scan.[26]
[26] T12, 63.
That MRI showed, said Professor Thyagarajan, extensive disc degeneration from C3/4 to C6/7 with the right C5/6 exit foramen ‘moderately stenosed, probably accounting for the right brachialgia’. There was no cure but a recommendation for ‘heat packs, physiotherapy, possibly acupuncture’. Surgery was not recommended.[27]
[27] T13, 64.
Comcare accepted liability for the injury on 2 July 2010 noting, ‘[w]e will accept medical treatment claims resulting from this injury up to and including 30 June 2010. We will also accept time off work claims resulting from this injury up to and including 24 April 2010’.[28]
[28] T11, 55.
Dr Kumar commenced more regular treatment. Comcare received a report dated 18 March 2011 from Amy Dawes, Director and Clinical Supervisor at Back in Motion in Sydenham:
Dr. Kumar has Spondylosis at C5/6 due to osteophytes. The therapeutic benefits derived from physiotherapy for this condition is that we utilize manual treatment to mobilize hypomobile facet joints. These stiff joints are the contributing factors of creating pain down the arm and headaches. Clinical pilates is also utilized to improve the activation of deep stabilizing muscles around the neck and trunk to elevate the load on the pathology at C5/6. Clinical pilates will also reduce the reoccurrence of spinal pain and help Dr. Kumar self manage her pain and dysfunction.
Myotherapy gives short term pain relief from tight muscles and active trigger points. Often this is required to ensure that the most gains are achieved during active physiotherapy sessions with the aim of improving active stabilization.
b) How often should Dr. Kumar undertake physiotherapy and myotherapy?
Treatment plan
25th April – 25th May 1/52 Manual physiotherapy treatment
2 x 1/52 Clinical Pilates Classes
25th May – 25th June 2 x 1/52 Semi Private Pilates Classes
1 X 2/52 Manual physiotherapy treatment
25th June – 25th Sept 3 month Gym membership for independent clinical pilates program
1 x 1/12 Manual Physiotherapy Treatment
Myotherapy/massage may be required on occasion to reduce the severity of tightness as required, however to be utilized sparingly. The focus on treatment is active management and weaning off the need for manual physiotherapy.
Dr Kumar’s injury symptoms deteriorated in late 2011 causing right arm radicular symptoms caused by neural compression on the right side of the neck, particularly at the C5/6 or C6/7 levels. There was no evidence of any intervening injury, and she was referred to consideration of surgery to Mr Craig Timms, a neurosurgeon. That surgeon advised on 21 November 2011 in a letter to the referring neurologist, Professor Thyagarajan, that an MRI scan showed ‘definite neural compression’ particularly at ‘the levels C5-6 and C6-7, and I think that this is likely the cause of her right arm radicular symptoms’. At the time of referral, the symptoms had progressed ‘to the point where she has right arm radicular symptoms’ although by the date of examination those features had improved significantly. He discussed the possibility of an anterior cervical discectomy and fusion (ACDF) operation but at the date of the review, there had been an improvement from the more severe radicular symptoms, and he advised against undertaking surgery.[29]
[29] T16, 71.
Dr Kumar was next examined by Mr Max Wearne, an orthopaedic surgeon, on 21 March 2012 at the request of Comcare. He reported on the cause of the condition and the continuing symptoms which he concluded were ‘the aggravation of the pre-existing degenerative changes in the cervical spine caused by a fall down a stairway while at work on 13 July 2009’. When asked about the relationship between the fall and the current condition, including ‘any contributing factors and including any predisposition factors’ of significant impact he replied, ‘I know of no other contributing factors other than the fact that Dr Kumar had degenerative changes in her cervical spine prior to the subject injury of 13 July 2009, as with most people in her age group’.[30] He also responded to Comcare’s question whether ‘a new cause supervened’ and he answered that ‘In my opinion a new cause has not supervened but her symptoms are merely ongoing…’[31] Finally, asked if there was any therapeutic benefit from physiotherapy treatment, Mr Wearne responded that there was benefit from physiotherapy as well from weekly treatment of ‘myotherapy, with or without Pilate’s exercises’ for the near future.[32] Dr Kumar was not referred back to Mr Wearne for further review after that date.
[30] T18, 82 (answers to questions 3 and 4).
[31] Ibid, 83 (answer to question 5).
[32] Ibid, 84 (answer to question 9).
When Mr Wearne was engaged, Comcare advised that Dr Kumar had attended 162 sessions of physiotherapy between 30 April 2010 and 17 November 2011 and that she had received only 2 massage treatments on 29 July 2010 and 5 August 2010.
Shortly after receiving Mr Wearne’s report, Comcare advised Dr Kumar on 16 May 2012 that it ‘amended your accepted condition of “neck sprain (right)” to the following condition: - aggravation of degenerative [sic] of cervical intervertebral disc’.[33] Nothing further was said about the reasoning behind such a letter though it was purported to be a determination pursuant to s 14 of the SRC Act. Nothing altered about the continuing entitlement to liability for the cost of medical treatment, being the only specific compensation benefit Dr Kumar claimed. The decision was not taken in respect of any new claim lodged by Dr Kumar.
[33] T19, 91.
During May 2013, Dr Kumar’s condition became worse and in response to a Comcare request for report, Professor Thyagarajan advised on 4 February 2014 that ‘in 2013 in about May, the neck pain became quite severe, and she had pins and needles travelling down the arm into the right hand. She managed it with heat packs and Comcare sent her to see Dr Dass who arranged an MRI of the neck which was performed on the 18th of June 2013. Again, this revealed moderate to severe right C5/6 uncovertebral joint arthropathy leading to severe right foraminal stenosis and possibly impingement of the right C6 nerve root’.[34]
[34] T28, 128.
Dr Shailendra Dass examined Dr Kumar for Comcare on 4 June 2013 and reported on 25 June 2013[35] that while recognising the degenerative condition that was a pre-existing spine disease that had been aggravated by the injury sustained on 13 July 2009, the ‘nature of the aggravation is that the injury had manifested in new symptoms of neck pain, trapezium pain, shoulder pain and referred pain down her right arm. The severity of the aggravation is quite severe which has not settled since the original injury in 2009. She needs ongoing analgesia and she also needs ongoing myotherapy to relieve her symptoms’.[36] Dr Dass was of the view that the work related aggravation was permanent in nature, the injury effects were unresolved and she had ‘ongoing pain in her neck and her shoulder including referred pain to the 2nd, 3rd and 4th fingers’.[37] The degenerative cervical spine condition was distinguished from the ‘aggravation of brachialgia due to C5/6 stenosis’ in Dr Dass’ opinion and that aggravation ‘has continued and not resolved’.[38] While Dr Dass did not consider that there was any ‘permanent damage’ to the physical structures, it was nonetheless a permanent aggravation, as the ongoing ‘symptoms are related to the pain experienced in the cervical spine and the trapezium including her shoulder and referred pain down her arm’. That is sufficient basis for drawing a conclusion that the injury has a permanent effect in that it is likely to continue indefinitely. There has been some pathophysiological alteration to produce such continuing symptoms that would not have appeared but for the intervention of the injury.
[35] T24, 107–22.
[36] Ibid, 113.
[37] Ibid, 114.
[38] Ibid, 115.
Dr Kumar sought Comcare’s support of the costs of Ayurvedic treatment which she underwent in late 2013 and into 2014. In a letter of 9 September 2014, she advised Comcare that she had derived some benefit from this form of therapy in managing her pain and that prior to that therapy she had ‘chronic/severe neck and shoulder pain, extending to head with severe headache and I was finding it difficult to manage my pain and work’. She stated that she had also been taking remedial massage and attending Pilates therapy, and her physiotherapist had advised exercises which she had undertaken though she still had pain.[39] The claim for the costs of the Ayurvedic treatment was rejected pursuant to s 16 of the SRC Act and that decision was affirmed in the reviewable decision of 3 November 2014.[40]
[39] T31, 132.
[40] T32, 13.
By letter dated 4 August 2015 Comcare advised that it accepted the ongoing costs of medical treatments, including ‘[m]assage therapy – once per fortnight’ and ‘[r]elated pharmaceuticals- NSAIDs,[41] flexall gel and heat pack’, as well as for the consultations with her general practitioner.[42] The determination was amended on 8 September 2015 to state Comcare agreed to ‘accept liability for massage therapy once per week up to until 29th October 2015’.[43] A report was requested of Dr Khoosal that same date who responded in an undated report that his patient had been treated with physiotherapy and massage on a weekly basis which was to relieve her of symptoms of pain around the shoulders and trapezium, the effectiveness of which was ‘assessed from the patient who is able to perform her duties’. The exercises from the physiotherapist for the neck and shoulders were continued at home. He stated, ‘[h]er symptoms have not resolved since her original injury at work and her aggravation had become more of a permanent nature’.[44]
[41] A shorthand reference to non-steroidal anti-inflammatory drugs.
[42] T33, 140.
[43] T35, 144.
[44] T36, 145.
Dr Kumar’s entitlement to compensation for massage therapy was terminated by decision made on 11 November 2015 (not included in the Tribunal documents). Dr Kumar wrote to Comcare requesting reconsideration on 2 December 2015 stating:
… Since first week of November I have not been able to obtain remedial massage and as a result I am suffering from severe neck and shoulder pain.
In your letter dated 11 November 15, Comcare mentioned about medical evidence required for massage therapy and it is evident from my previous statement that without massage my conditions are worsened. Therefore massage constitute one of the medical treatment to my injury, instead of surgical treatment.
Comcare affirmed the decision dated 29 January 2016 and this was the subject of review proceedings before the former Administrative Appeals Tribunal.[45]
[45] T38, 149; T40, 156.
By consent order dated 15 June 2017 made pursuant to s 42C of the AAT Act, Comcare remained liable to pay compensation pursuant to s 16 of the SRC Act for ‘massage therapy in relation to the injury suffered on 13 July 2009’.[46]
[46] T40, 156: Consent Order in AAT Proceedings 2016/1463.
During Covid, particularly during lockdown periods, Dr Kumar was unable to access physiotherapy or massage. Dr Kumar was able to work from home. Dr Khoosal advised Comcare on 4 June 2020 that his patient continued to suffer from ‘[s]evere right C5/C6 unconvertable joint leading to severe foraminal stenosis and impingement of right C6 nerve root’. He continued:[47]
She still has ongoing neck and shoulder pains more within both shoulders. Sometimes she has pain with pins and needles radiating down to her right hand. Physiotherapy and massage give her relief. She has been working from home due to the recent Covid 19 crisis and I have prescribed Mobic 7.5mg daily to help with the pain as she has been unable to have physiotherapy.
[47] T42, 159.
In 2023 Dr Kumar was referred for review to Ms Anna Manolopoulos, an orthopaedic surgeon, who provided an initial report in response to questions concerning the association of Dr Kumar’s condition with employment as well as the efficacy of massage therapy. In relation to the nature of the condition and its relationship to employment, Ms Manolopoulos concluded that the continuing effect of the injury included the aggravation of degeneration of the cervical intervertebral disc, and the radiating pain to the right arm and shoulder was ‘coming from the nerve roots proximally that have been impinged on. This has not resolved’.[48] She further stated:[49]
There is a causal connection between the claimed condition and the incident which took place in 2009.
Prior to the injury, Dr Kumar had no issues with pain in her neck and cervical spine and intermittent neurology she now does [sic]. She has accelerated the natural history of what has occurred in her cervical spine and she now has symptoms whereas she had none previously.
…
Part of Dr Kumar’s diagnosable condition is attributable to factors especially in terms of degeneration. The problem is that there is no temporal linear relationship between the development of osteoarthritis and nerve root impingement in the cervical spine and it is very difficult to predict what would have happened had the fall never taken place.
…
Having said what I have said in Question 6, [immediately above] I feel the incident which occurred in 2009 is a significant contributing factor to her diagnosable condition. Had the fall not occurred, I do not think there would have been an exacerbation of conditions affecting the cervical spine and we would not see the degree of pathology and the degree of degeneration we see today.
[48] T45, 176–7.
[49] Ibid, 177–8 (answers to questions 5, 6 and 7).
As to the question of the recommended treatment, Ms Manolopoulos reported ‘[t]he medical management that Dr Kumar is receiving to date is appropriate and should continue. The massages and medication should remain at the current dose. The ideal outcome measures for Dr Kumar would be that she comes off all analgesia and does not require any additional massaging or rest breaks; however, I do not think this is going to be likely the case’.[50]
[50] Ibid, 179 (answer to question 11).
Treatment ‘obtained in relation to the injury’
To determine whether the identified massage treatment was ‘in relation to’ an injury for which there is a relevant liability, it is necessary to form a view as to the injury at the date when the compensation benefit is sought. At the time of the Comcare decision of 13 June 2023, nearly 14 years had passed from the date of the injury on 13 July 2009. In that time, an injury may recover in part or whole, and it may be superseded in some relevant way by another ailment or injury which is the true reason for seeking the treatment subject of review. It is the obligation of a decision maker when considering whether there is an entitlement to specific compensation for injury, to form a view as to what that injury is, and whether the effects of that injury continue in a relevant way to justify the payment sought. I do so keeping in mind the dicta of Madgwick J in Abrahams v Comcare (2006) 93 ALD 147 to the effect that ‘[n]othing is more common than that medical diagnoses change and evolve, or are or become various’,[51] and of Jagot J in Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136 that ‘the Tribunal’s jurisdiction does not depend on the Respondent’s characterisation of the applicant’s claim. Rather, the Tribunal must assess for itself the true scope of the claim and is empowered to conduct its review on that basis’.[52]
[51] (2006) 93 ALD 147, 153 [21].
[52] (2011) 124 ALD 136, 145 [51].
The relevant medical treatment is massage therapy that is used to relieve pain from the neck and shoulders, principally to the right where Dr Kumar experiences spasm and right brachialgia.
Mr Peter Lugg is a consultant orthopaedic surgeon who gave evidence by video link. He was commissioned by the Respondent to examine Dr Kumar and provide a report dated 21 March 2024 which was received into evidence as part of the Hearing Bundle of documents along with the clinical notes relating to Dr Kumar from Dr Khoosal’s medical practice and Bliss Massage (Exhibit R1).
In his evidence to the Tribunal, Mr Lugg stated that some of that pain Dr Kumar experienced comes not only because of the brachialgia but also because of spasm to the muscular supportive structures in the neck. He accepted that spasm was a generally involuntary response of the body to prevent a muscle from moving. Mr Lugg agreed that massage would help to relieve those symptoms.
The dispute in this review is firstly whether that helpful treatment is ‘in relation to’ the injury sustained. Comcare submits that the condition is to be seen as a ‘disease’, pointing to numerous references in the records of her treaters that point to the existence of an underlying cervical spondylosis that was symptomatic prior to the injury. I accept that there is cervical spondylosis and that it was symptomatic prior to the fall on 13 July 2009.
The Respondent points to:
(a)A report of ‘pain in upper back left side’ recorded in the clinical notes of her treater, Dr Khoosal, as early as 12 August 2008 and for which there appears to have been prescription of an anti-inflammatory medication as well as analgesia. The next note on 27 August 2008 simply states, ‘much better’.
(b)A further report of various complaints, including gout and foot pain, on 18 February 2009 to Dr Naidu, another practitioner at Dr Khoosal’s clinic, which states simply ‘works with computers – discomfort over the neck muscles – discussed physio’.[53]
(c)A report by a physiotherapist from The Rehab Factor dated 11 May 2009, over two months prior to the fall causing work injury, that described the onset of neck and shoulder pain in early 2009. Dr Kumar reported that she had changed workstations in November 2009 but that since returning from leave in January 2009 she developed neck symptoms. It was her general practitioner who discussed a workstation assessment. She was taking analgesic medication for the pain. The report recorded ‘a strong ache in the back and sides of the neck which is aggravated by extended periods at her workstation, sleeping in an awkward position, and lifting and handling heavy items’. However, there was also ‘an intermitted ache’ affecting the left arm associated with the neck pain in a right-hand dominant woman.
(d)On 22 May 2009, she returned to Dr Naidu who recorded in the clinical notes that she ‘had work – occupational therapy assessment – discu[ssed] report – muscle discomfort++ interscapular – back discomfort – adv physio’.
[53] Clinical notes appeared in Exhibit R1.
Given the nature of the complaints and the evidence concerning the underlying pathology, I accept these were expressions of developing symptoms of cervical spondylosis. Dr Kumar told Comcare in her original claim form that this pain from early 2009 reduced where she considered she was alright.
However, the symptoms of referred or brachialgia pain were clearly expressed on the left side, while the symptoms since July 2009 have, by contrast, been consistently expressed on the right side, and to a degree that at one stage was considered for surgery.
I find it significant that after the fall on 13 July 2009 the symptom expression of referred arm pain is pronounced on the right side and that the site of the worst neck pain and discomfort is on the right side of the neck. This is not the mere continuation of the prior expression of existing symptoms. The symptoms developed further after the resolution of the initial contusions until she was referred to Professor Thyagarajan, the treating neurologist, who arranged an MRI scan and, in a letter to Dr Khoosal of 3 August 2010, identified the ‘multi-level disc osteophyte complex formation in association with moderate to severe disc degeneration, extending from C3/4 to C6/7 inclusive. The right C5/6 exit foramen is moderately stenosed, probably accounting for the right brachialgia, but the other neural exit foramina are satisfactory’.[54]
[54] T13, 64.
At the hearing, Mr Lugg had the general history put to him for a response as to the association of the specific symptoms and that fall. He agreed that the radiological features at C5/6 on the scanning would account for the brachialgia. He stated further that:
It almost certainly caused that stir up of brachialgia – if she’s had a fall like that and suffered a bit of stretching to her nerve root, the nerve root will be swollen – and it will make it more compressed – so it will cause the brachialgia – with the pain going down the arm – C5 is about where the sergeants stripes are on the arm – C6 goes down to almost the hand on the outer side of the arm if you hold you palm forward – so it pretty much describes what she had I think – but then it settled down – as you’d expect as the swelling settled down after the injury.
Asked further whether there had been a permanent alteration of the pathology he answered that:
It would be my consideration that the relation of the fall at work on the stairs to Dr Kumar's current condition is that one of an aggravation. To explain, an aggravation is a permanent aggravation of the condition (as opposed to an exacerbation which is temporary). With an aggravation of the underlying condition the symptomatic onset has been commenced. Also, there is a small contribution due to increase in the underlying pathology being made worse. So, in this sense, there is still a small contribution from the work-related incident to Dr Kumar's condition.
He also said that this increase in pathology ‘does not go away completely’.
Ms Manolopoulos offered the opinion in her original report, ‘[h]ad the fall not occurred, I do not think there would have been an exacerbation of conditions affecting the cervical spine and we would not see the degree of pathology and the degree of degeneration we see today’.[55]
[55] T45, 178.
On the evidence received I find that in the 13 July 2009 fall on the stairs, Dr Kumar suffered external blows to her body the impact of which transferred damaging force to the neck, shoulders and arms. The nerves and other tissues on the neck, particularly to the right side at about the C5/6 level, were physically damaged in the fall and that has been the cause of her recurring neck pain, muscle spasming and right brachialgia that has followed a fluctuating course at times leading to referred pain to the right hand. The fact that she had an underlying developing cervical degeneration present may have increased her susceptibility, but is not the cause of the more severe pain and right brachialgia which is the consequence of the increase in the pathology caused by the fall. This is a case of the application of the well-known dicta: ‘[t]he legal concept of causation when applied to the field of personal injury takes the person injured as it finds him, with all his pre-dispositions and susceptibilities, whatever they may be’.[56]
[56] Migge v Wormald Bros. Industries Ltd (1972) 2 NSWLR 29, 44, whose judgment was upheld by the High Court, (1973) 47 ALJR 236 (Mason J.A, as he then was).
The original decision maker had correctly analysed the facts and circumstances of the injury to come to this conclusion. Dr Kumar suffered physical injury in a traumatic accident falling downstairs. It was a ‘hurt received … externally, at work, such as a blow, fall, contact with an object, etc’.[57]
[57] Wood v Harrigan [1929] WCR 41, 49, (NSW Workers Compensation Commission, Perdriau J).
It was an ascertainable or distinct physiological change or disturbance of the normal physiological state.[58]
[58] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286, 300 [39], 300-301 [40] (Gleeson CJ and Kirby J); Hume Steel Ltd v Peart (1947) 75 CLR 242, 252-253; Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468.
The medical opinions demonstrate that there was an adverse physical alteration to the neck and brachial plexus area that gave rise to significant new and persistent symptoms. The fact that medical experts have framed reports that refer to an underlying degenerative cervical spondylosis that was aggravated in the process makes no difference to the finding of an injury in the primary sense.
The injury of 13 July 2009 was an injury in the primary sense, that is, an ‘injury (other than a disease) arising out of or on the course of … employment’ as defined in s 5A(1)(b) of the SRC Act. It was a simple traumatic fall and blow to several parts of the body, some of which (contusions and the like) recovered relatively quickly, but the injury to the cervical spine, to which her underlying cervical spondylosis rendered her susceptible, has persisted and caused a continuing right brachialgia condition. The trauma of the fall was ‘the catalyst which precipitates disability in the medium of disease’, to adopt the phrase of Jordan CJ in the leading judgment of Salisbury v Australian Iron and Steel Co Ltd (1943) 44 SR (NSW) 157 (Salisbury). The metaphor was cited with approval in the High Court by Windeyer J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 643. That case involved a minor bodily injury suffered by the employee when a falling box struck her, but which resulted, being a person of ‘unstable mentality’, in serous psychological consequences that resulted in incapacity for work. Windeyer J noted that a case, so put, would fall within the general word ‘injury’.[59]
[59] (1964) 110 CLR 626, 642.
Salisbury was a case involving the termination of continuing weekly payments for incapacity for a worker who suffered an aggravation of his myocardial condition which was not itself work related, but to which employment was a contributing factor [i.e. a ‘disease’ condition]. He had a pulmonary fibrosis considered to be due to his employment exposure to coal dust in coal mines and this contributed to his myocardial condition which was susceptible to acceleration, which the NSW Workers Compensation Commission found to have occurred and entitled him to compensation. However, the decision fixed the period of compensation for weekly payments to be limited to the period up to 1 July 1943, being the end date of the period of ‘acceleration’ of his conditions, and this termination was disputed in the appeal by way of a case stated to the Full Court of the Supreme Court of New South Wales (Jordan CJ, Davidson and Herron JJ) [hence a ‘disease’]. Despite the limitation arising from discussing the continuation of incapacitating effects and not medical treatment, the approach taken by Jordan CJ is, and has been taken to be, a most illuminating one in the consideration of the continuity of effects of injury on the entitlement to compensation. At 161–3:
It is necessary now to consider the case of a worker who is suffering from a progressive non-employment disease which, although it has not yet incapacitated him, will in its ordinary course eventually do so, at first partially and then totally. Such a worker may incur an employment injury which incapacitates him for one or other of a number of different reasons. (1) It may cause an incapacity which is not associated with his non-employment disease, for example where a worker suffering from a not yet incapacitating non-employment heart disease cuts his hand while working and is unable to resume work only because the cut has not yet healed. (2) It may cause incapacity which is associated with the unemployment disease, as where it is not of itself incapacitating, but its effects, in combination with those of the not otherwise incapacitating disease, are incapacitating. (a) In this type of case, the employment injury may- be purely temporary in its effects. For a time it produces effects and then it ceases to produce any. So long as it produces effects, these, added to those of the disease, cause incapacity which would not otherwise exist. But when it ceases to produce effects, the stage of the disease is found to be what it would have been, and its course to continue as it would have done, if the injury had never occurred. (b) Or it may be permanent in its effects. When these are added to the effects of the disease, they cause partial incapacity which did not previously exist and would not otherwise have then come into existence, or it prematurely increases the extent of a previously existing disease incapacity. The effects of the injury do not disappear. They continue, in combination with the effects of the disease, to contribute to the premature occurrence of disability which would not then have been produced by the disease alone, and to the continuance of the incapacity so occurring. In the long run the disease alone would have caused the disability, but the injury anticipates it. In the case which I have numbered 2 (a), the worker is entitled to compensation so long as the employment injury produces effects and these effects, added to the effects of the disease as it existed when the injury occurred, are sufficient to produce disability. It is not necessary that the employment injury should be the sole cause of disability. It is sufficient if it is a contributing cause: Harwood v Wyken Colliery Co [1913] 2 KB 158 at 166-169. It may be the catalyst which precipitates disability in a medium of disease. But when the stage is reached at which. the employment injury ceases to produce effects and could therefore no longer be a contributing cause to any incapacity which may then exist, the right to compensation ceases. In case 2 (b), for a time at least, it is the addition of the effects of the employment injury which produces incapacity, or an increased incapacity, which would not otherwise have existed. So long as these effects continue, the fact that a non-employment injury supervenes (in the form of an accentuation of the non-employment disease), sufficient of itself to produce the incapacity or increased incapacity, does not deprive the worker of his right to continue to receive compensation. To hold that it does would be inconsistent with the authorities cited above. An analogy is provided by the Scottish ease of Jamieson v Fife Coal Co Ltd (1903) 5 F (Ct of Sess) 958, cited with approval by the House of Lords in McCann v Scottish Co-operative Laundry Association Ltd (1936) 1 All ER 475 at 480. There, a workman, had sustained an employment injury which totally incapacitated him. Like everyone else, he was growing older; and everyone who is not prematurely incapacitated by injury or disease, and who lives long enough, inevitably arrives at stages when he is, first partly and then totally, incapacitated for manual labour by the effects of normal physical degeneration. This is the common fate of humanity. It was held that the fact that the workman had arrived at the first of these stages did not justify a reduction in his compensation, and by parity of reasoning the fact of his arriving at the second would not justify his being deprived of compensation altogether. And yet, at each stage, incapacity due to a physical condition not connected with employment overtakes and renders immaterial from a merely physical point of view the incapacity resulting from the employment injury. The case of Stowell v Ellerman Lines Ltd (1923) 16 BWCC 46 shows that the position is the same when the effects of a partially incapacitating employment injury are overtaken by a totally incapacitating non-employment disease.
In all cases mentioned where the effects of the injury were intermittent or non-observable or secondary or remote, the analysis of the facts that resulted in the finding of a continuing liability for particular compensation payments was a factual one linking the original injury with the compensable effect, without the application of the statutory formulas in the definition of injury at the time the particular benefit fell for consideration.
Treatment that is reasonable to obtain in the circumstances
The second limb of the test for compensation liability in respect of medical treatment expenses pursuant to s 16(1) of the SRC Act, once it is determined that they were incurred ‘in respect of’ an injury, is to consider whether the treatment is ‘reasonable for the employee to obtain in the circumstances’.
It has been accepted by the Federal Court in Re Jorgensen and Commonwealth (1990) 23 ALD 321 where Gray J, sitting as a presidential member of the Administrative Appeals Tribunal noted, ‘[t]he idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation’.[86] Those comments were taken up in Comcare Australia v Rope (2004) 135 FCR 443, where Stone J further considered that a decision maker is ‘required to engage in a costs/benefit analysis in relation to’ the treatment to determine whether it is reasonable in the circumstances.[87] That approach was also affirmed by Mansfield J in Comcare v Holt [2007] FCA 405; (2007) 94 ALD 576 to the effect that that such a cost/benefit analysis may require weighing the claimed treatment against alternatives and in the light of past experience:[88]
[26]It is plain enough that sometimes proposed therapeutic treatment will be unreasonable because there is some alternative treatment available with potentially similar benefits at a lesser cost. There may be a balancing involved where the potential therapeutic benefits are less, but the cost is significantly less. The extent to which such treatment has been undertaken in the past and the degree of its success may also be relevant. There may be cases, as Comcare points out, where proposed treatment, although of therapeutic benefit, is unreasonable having regard to the extent of the anticipated benefit of the cost involved, even if no similar treatment had previously been undertaken. There may be cases, also as Comcare points out, where treatment like the proposed treatment which in the past has had some therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of past experience: see, for example, Bashar v Comcare (2002) 69 ALD 784; [2002] FCA 837. There may be other illustrations of facts relevant to the determination of reasonableness of proposed medical treatment.
[86] (1990) 23 ALD 321, 325: the case concerned treatment for in vitro fertilisation.
[87] (2004) 135 FCR 443, 448 [17] dealing with the costs of ‘psychoneuroimmunology (PNI) treatment’ as well as travel costs from Canberra to Townsville where the treatment was given. In the result, the Tribunal’s acceptance that the PNI treatment was reasonable to obtain in the circumstances was not disturbed.
[88] [2007] FCA 405; (2007) 94 ALD 576, 582 [26]. The case concerned the cost of an adherent of Buddism to attend a sixth meditation retreat at a Buddhist institute near Brisbane similar to the retreats he attended on five prior occasions, which had also been paid by Comcare.
Beyond those authorities of the Federal Court there is little guidance, possibly, as noted by Stone J, ‘because the question of reasonability is often subsumed in consideration of whether the treatment in issue is “medical treatment”’.[89] Fortunately, there is no dispute concerning whether the treatment subject of the review is medical treatment. Comcare accepts, in line with its prior decisions including the Consent Decision before the AAT in 2017, that massage Ms Kumar obtains is therapeutic treatment at the direction of a medical practitioner.
[89] (2004) 135 FCR 443, 447 [16] and referring to the decision of Mansfield J in Bashar v Comcare (2002) 69 ALD 784; [2002] FCA 837, a case concerning the cessation of physiotherapy treatment after 1400 sessions in a period of 12 years. The Tribunal had found the treatment was not ‘medical treatment’. That decision was set aside and remitted for reconsideration by the Tribunal.
Comcare relies on various statements taken from the Clinical Framework to support the following conclusions:
(a)The cost of continued massage treatment outweighs any benefit to the applicant. Comcare cites the fact that it has paid for 400 massage treatment sessions over the duration of the claim.
(b)The massage treatment only provides short-term relief.[90]
(c)Further, there was stated that there are alternatives, such as self-directed exercise, which costs little and would possibly have the same long-term effect. This would appear to be supported by the opinion from Mr Wearne in 2012 who recommended that, at some time in the future, she would eventually ‘maintain her comfort by simple home-based exercises’.[91]
[90] See Respondent’s Statement of Facts Issues and Contentions, [71], [72].
[91] T18, 84.
Firstly, the Clinical Framework is a document that originated from the Victorian WorkCover Authority (VWA) and the Victorian Transport Accident Commission (TAC) and is a general document directed not at decision makers but to clinicians, hence its language concerning ‘goals’ for treatment that are ‘SMART (specific, measurable, achievable, relevant and timed)’. The Framework refers to such clinical guidelines in general and not to the reasonableness of treatment obtained in the circumstances. The word ‘reasonable’ does not appear in the document based on a word search I conducted. It may be interesting to see what clinicians are urged to do by way of drawing up treatment programs, but it does not purport to cover all relevant considerations. I find little in the Clinical Framework that is relevant to the circumstances of Ms Kumar’s case.
Secondly, dealing with the alternatives proposed by Mr Wearne’s March 2012 comments, I note that he was addressing himself to physiotherapy. His opinion at the time of examination in March 2012 was that such treatment ought to continue, though he suggested that at some point towards November of that year it would not be so beneficial. He did so on the basis of his anticipation that there would be ‘a slow subsidence of Dr Kumar’s level of symptoms and disability’, and it was on that basis he concluded ‘Dr Kumar’s symptoms will have subsided sufficiently by the end of the current year for her to maintain her comfort by simple home-based exercises’. Mr Wearne did not see Dr Kumar for review again to check the accuracy of that anticipated outcome. As I have found, the disabling symptoms persist to the present time.
I have noted earlier the responses of subsequent reports form Ms Manolopoulos (the original report) and the evidence of Mr Lugg.
Ms Manolopoulos, in her report, stated ‘[c]urrently, Dr Kumar’s current treatment regimen is appropriate to address her condition. She is having symptomatic relief, she is still functioning and she is not experiencing progressive or severe neurology’.[92]
[92] T45, 179 (answer to question 10).
Symptomatic relief is disparaged by Comcare’s decision maker but for little sound reason. Ms Manolopoulos actually recommended to Comcare that the treatment should continue: ‘[t]he massages and medication should remain at the current dose. The ideal outcome measures for Dr Kumar would be that she comes off all analgesia and does not require any additional massaging or rest breaks; however, I do not think this is going to be likely the case’.[93] The reduction of the use of analgesic medication, which Dr Kumar says leaves her drowsy, is a worthwhile outcome to be weighed with the other factors.
[93] Ibid, 178 (answer to question 11).
Dr Shailendra Dass examined Dr Kumar for Comcare on 4 June 2013 and reported on 25 June 2013[94] a recommendation for ‘Pilates, myotherapy and physiotherapy to get better control of her muscles’, while noting that ‘continued’ and ‘frequent breaks’ from work were also a recognised need.[95] A relevant factor was the ‘muscle fatigue and pain in the trapezium and shoulder girdle muscles [causing her] added pain of her right C6 nerve root impingement. Lack of postural control and lack of muscle strength in the trapezius and the shoulder girdle muscles is further delaying her recovery’. That postural element is, in the view of the last ergonomic assessment available, in part due to the continuation of duties requiring her to sit at a fixed position for extended periods of time while working, given the very nature of her duties.
[94] T24,107–117.
[95] Ibid,116–117.
The 28 August 2012 note from a Clinical Associate from Back in Motion noted that the work duties and postures adopted were a relevant factor in the prolongation of recurrent disabling symptoms: ‘[a]s a consequence of sustained periods of sitting and operating a computer, Ms Kumar still suffers from ongoing neck and back pain which stem from stiffness in her Tx [thoracic] Spine’.[96]
[96] T20, 93.
Dr Khoosal, the treating general practitioner, advised in or about September 2015 that her symptoms had become permanent in nature and that:[97]
1.… She has treatment with physiotherapy and myotherapy due to the continuous pain in the upper back and neck. The pain also radiates to her shoulder and has pain and tingling on her right 2nd, 3rd and 4th finger. Having this treatment relives [sic] her pain and is able to attend work.
2. She requires ongoing physiotherapy and massage on a weekly basis.
3.Physiotherapy and massage would give her more relief of symptoms of pain around the shoulders and trapezium. If she has better posture of the cervical spine then her symptoms would improve
4.There is much relief and improvement of pain and effectiveness of treatment is assessed from the patient who is able to perform her duties.
[97] T36, 145.
There is no clear distinction between physiotherapy and massage in relation to the useful treatment of Dr Kumar.
The 15 August 2013 request by Back in Motion for approval of further physiotherapy sessions was framed thus:[98]
As Ms. Kumar's condition is of a chronic nature she suffers ongoing pain and dysfunction in her neck. She hence suffers associated muscle spasm and tightness associated with the uncovertebral joint arthropathy and dysfunction in her neck.
We are therefore requesting 40min treatment sessions to be approved to allow for Physiotherapy treatment to address tightness and spasm of soft tissue structures which will involve massage and gentle soft tissue release. Treatment will also involve exercise therapy to address exercises for Cx/TX and scapula-thoracic posture to aid in her independent maintenance program.
[98] T25, 123.
From such evidence I conclude that there is no basis for making any finding that there is a choice between physiotherapy, massage or an exercise program. They are overlapping and complementary therapies.
Weighing the Applicant’s argument that there is a relationship between the benefit of massage therapy and the maintenance of employment and avoidance of incapacitation, Dr Kumar has maintained a consistent argument on this basis. When Comcare determined on 4 August 2015 that it would continue to accept the costs of medical treatment, including massage, it purported to limit its ongoing liability to future payments for massage therapy to ‘once per fortnight’.[99] Dr Kumar sought review stating she ‘was given an approval to attend physiotherapy and massage and then it was reduced to one massage per week. With this I was managing my pain and attending to full time work. The reduction in frequency of obtaining massage is worsening my pain’.[100] I note that the request was successful in securing Comcare’s agreement to resume paying for weekly treatment but only to 29 October 2015.[101] She maintained that argument as to the association between continued massage therapy and the ability to maintain herself at work in her further letter of 2 December 2015, an apparent request for review of a decision of 11 November 2015 denying further massage treatment.[102] The subsequent reviewable decision affirmed the cessation of compensation for massage therapy on 29 January 2016 on grounds barely distinguishable to those in the 28 August 2023 decision currently under review.[103] By terms of consent agreement, made pursuant to s 42C of the AAT Act, the massage treatment was restored.[104]
[99] T33, 140.
[100] T34, 143.
[101] T35, 144.
[102] T37, 148. The 11 November 205 determination was not included in the Tribunal documents.
[103] T38, 151–2.
[104] T40, 156.
Untreated, Dr Kumar’s injury will result in continued pain and spasm which could lead to the cessation of or the diminution of her ability to perform her duties to the high standard demanded of her in her work. I again refer to the evidence given by Mr Lugg to the Tribunal. He was able to report from his own experience of muscle spasm, particularly as it affected his capacity to write reports: ‘[i]f I look at this computer a lot of time in a row especially if I’m writing reports and if I do it too long, I have to stop for a couple of days or so; you just can’t sit there’. When asked whether massage would relieve those symptoms he responded, ‘[a]bsolutely, without a doubt’.
That is a particularly relevant statement in the context of Ms Kumar’s case. She is required to work full time to a high level of concentration before multiple computer screens for extended periods in her day. The degree of symptoms, such as those both she and Mr Lugg experience, can force the cessation of that high level work even if she does not cease to remain at the workplace. Incapacity for work involves an analysis of the work at the same level prior to the injury is of the nature and quality of the work ‘in the sense of its characteristics, which will include its degree of difficulty’ as stated in the decision Re Prica and Comcare [1996] AATA 218; (1996) 44 ALD 46.[105]
[105] [1996] AATA 218; (1996) 44 ALD 46, [22].
Comcare submitted in the present proceeding that the cost of such treatment would, if the Applicant lived to age 90, amount to something like $100,000 if maintained at weekly visits at $90.00 per visit.
The past use has in fact worked out at less than 40 visits per annum. However, at $90.00 per visit, a figure based on those referred to in the hearing, that would amount to $3,600 per annum. When compared to Dr Kumar’s salary at the EL1 level, say roughly $120,000 at the lowest level, that works out at less than a fortnight’s pay. When asked by examiners and in answers given at the hearing, Dr Kumar stated that physiotherapy sessions were not less expensive than massage and she would likely have to attend during work hours and that itself involves a cost.
To deny massage therapy, which the medical evidence points to be valuable in reducing the spasming and referred pain, may not force her to cease work. Dr Kumar did continue to work during periods of lockdown without massage. She made do with some form of massage intervention from her family members, but this is clearly a makeshift arrangement when treatment could not be accessed. It would be safer were the massage performed by a therapist trained in the relevant techniques. Dr Kumar has demonstrated throughout this review a determination to avoid taking time off work, but it is equally true that relief of symptoms allows her to work in comfort and maintain a degree of concentration for high level computer based work. Absence of treatment, as Mr Lugg was able to relate from personal experience, may result in having to cease computer-based work altogether for a period, perhaps depriving the Commonwealth of the value of Dr Kumar’s very considerable skills as a project scheduler. This is also a relevant factor to weigh in the cost/benefit analysis. The Clinical Framework (Principle Four) appears to address only ‘return to work’ for employees whose injury has resulted in the cessation of duties, not the prevention of the loss of valuable work performed to a high standard by an employee when not burdened by pain and spasm. This is a further limitation on the Clinical Framework’s value as a tool of analysis.
Accordingly, I find that there is both therapeutic value in the massage treatment obtained at the direction of her medical practitioner as well as being reasonable to obtain in the circumstances.
DECISION
Consequently, Comcare’s reviewable decision must be set aside and, in substitution, a decision made that from 13 June 2023 to the present date and at the present date the Applicant remains entitled to compensation pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988 for medical treatment in the form of massage therapy, being therapeutic treatment obtained at the direction of a legally qualified medical practitioner.
140. I certify that the preceding 139 (one-hundred-and-thirty-nine) paragraphs are a true copy of the reasons for the decision herein of General Member M Carey
.............................[sgd].....................................
Associate
Dated: 19 February 2025
Date of hearing: 16 December 2024 Applicant: Self-Represented Counsel for the Respondent: Ms Felicity Blair
Solicitors for the Respondent: HBA Legal
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