Lonsdale and Comcare

[2004] AATA 555

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 555

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2002/304

GENERAL ADMINISTRATIVE DIVISION		)
Re		JUDITH ANN LONSDALE

Applicant

And COMCARE

Respondent

DECISION

Tribunal

Michael Sassella, Senior Member

Dr M D Miller AO, Member

Date1 June 2004

PlaceCanberra

Decision The decision under review is varied such that Comcare is liable to pay compensation for pain management to be provided in Canberra, a deep tissue massage session once a month and two hydrotherapy sessions a week. The matter is remitted to Comcare for it to determine the elements of pain management and counselling to be provided in Canberra, including by which providers. This decision is favourable to the applicant who qualifies for costs associated with the application in accordance with s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 and the tribunal’s general practice direction.

[sgd] M J Sassella

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – compensation for medical treatment reasonably required as a result of injury – chiropractic treatment not reasonably required – massage reasonably required once a month – hydrotherapy reasonably required twice a week – nerve block not reasonably required – pain management and counselling reasonably required but not any associated travel between Canberra and Sydney – decision varied

Safety, Rehabilitation and Compensation Act 1988 ss 4(1)(“medical treatment”, “therapeutic treatment”), 14(1), 16(1), (2), (4), (5), (6), (7), (8)

REASONS FOR DECISION

May 2004 Michael Sassella, Senior Member
Dr M D Miller AO, Member

RESULT

We have decided that Ms Lonsdale is to receive compensation under s 16 of the Safety, Rehabilitation and Compensation Act 1988 for a massage session once a month, hydrotherapy twice a week and pain management in Canberra.

BACKGROUND

1. Judith Ann Lonsdale (“the applicant”), born 1 April 1948, was injured at work in the ACT Education Department in 1980 when lifting a child. She incurred a back injury which attracted workers’ compensation. She has had surgery on her lumbar spine and coccyx in the years since, including a laminectomy and a lumbar fusion. As part of these processes she underwent a myelogram in 1980. Her compensable condition is described as aggravation of lumbar disc lesion L5/S1, coccydynia, injured right toe, depression, gastric/peptic ulcerations. Ms Lonsdale last worked in 1980.

2.      On 5 April 2002 a delegate within Comcare (“the respondent”) denied liability to pay compensation for massage therapy (once a week), pain management counselling (one hour twice a week), chiropractic treatment (one session), physiotherapy and hydrotherapy (twice a week), nerve blocks and ongoing travel expenses to Sydney from Canberra.  Ms Lonsdale sought review of this determination.  The determination was changed and a reviewable decision issued which was that Comcare would pay compensation for pain management counselling twice a year and hydrotherapy treatment once a week in Canberra.  In other respects the earlier determination was unaffected.  Ms Lonsdale appealed this reviewable decision to the Administrative Appeals Tribunal (“the tribunal”).

3. At the tribunal hearing an additional matter raised was whether Comcare’s liability for Ms Lonsdale’s headaches was before us. Ms Walker, counsel for Ms Lonsdale, did not think it was. Mr Elliott, counsel for Comcare, considered that it was. Argument proceeded provisionally on the basis that this condition was before us but we reserved a final decision on this point. Mr Elliott based his argument on the claim for nerve blocks. These can be administered for occipital headaches and for the lumbar spine lesion. Mr Elliott pointed to a paragraph in the primary determination rejecting nerve blocks as reasonable medical treatment under the guiding legislation, s 16 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)[1].  He pointed to a comment by Professor R O Day in a report dated 10 April 2002 addressed to Comcare supporting occipital injections.  He referred to a report to Ms Lonsdale’s general practitioner dated 12 April 2002 by Professor J W Lance regarding headaches and where he refers to the beneficial effects of injections.  He referred to Ms Lonsdale’s request for reconsideration in which she argued that the headaches stemmed from compensable arachnoiditis and asked that the headaches be considered as part of her accepted condition.  In the reviewable decision, however, all that the delegate said was that she did not consider that there was sufficient evidence to establish a need for nerve blocks in respect of the compensable injury.  There was no discussion of any relationship between the headaches and Ms Lonsdale’s work injury.  We have concluded that we do not have jurisdiction to make a decision on liability for Ms Lonsdale’s headaches in the absence of a clear reviewable decision on this condition.  It would be different if there was a decision on some type of headache condition.  We could affirm or set that aside, or we could decide to redefine the particular condition.  However, as the documents stand, there is no clear decision on liability for the headaches. 

[1] Ms Lonsdale must have suffered an injury, as defined in s 4(1) of the Act if she is to receive compensation under the Act. This poses no difficulty here because Comcare accepted liability for Ms Lonsdale’s injuries and those determinations remain on foot. If an injury is present then s 14(1) of the Act provides that Comcare is liable to pay compensation to the employee.

5. In the present case Ms Lonsdale is seeking compensation in respect of medical expenses and travel to and from Sydney for some of these medical interventions. Section 16 of the Act deals with such compensation:

Compensation in respect of medical expenses etc.

16. (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.

(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.

…

(4) An amount of compensation payable by Comcare under subsection (1) is payable:

(a) to, or in accordance with the directions of, the employee;

…

(5) Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person.

(6) Subject to subsection (7), if:

(a) compensation in respect of the cost of medical treatment is payable; and

(b) the employee reasonably incurs expenditure in doing either or both of the following:

(i) making a necessary journey for the purpose of obtaining that medical treatment;

(ii) remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;

Comcare is liable to pay compensation to the employee:

(c) in respect of the journey-of an amount worked out using the formula:

[formula omitted]

(d) in respect of the employee remaining for the purpose of obtaining the treatment-of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.

(7) Comcare is not liable to pay compensation under subsection (6) unless:

(a) the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or

(b) if the journey made by the employee involved the use of public transport or ambulance services-the employee's injury reasonably required the use of such transport or services regardless of the distance involved.

(8) The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:

(a) the place or places where appropriate medical treatment was available to the employee;

(b) the means of transport available to the employee for the journey;

(c) the route or routes by which the employee could have travelled; and

(d) the accommodation available to the employee.

…

6. “Medical treatment” is defined comprehensively in s 4(1) of the Act to cover, as relevant here:

(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or

(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

…

7. Section 4(1) defines “therapeutic treatment” as including an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.

8.      The issues for determination, then, in respect of each of:

·     Chiropractic treatment;

·     Massage;

·     Hydrotherapy;

·     Nerve blocks;

·     Pain management counselling; and

·     Travel to and from Sydney

are:

(a)      Is the treatment in question “medical treatment”?

(b)If the answer to (a) is yes, is it treatment reasonable for Ms Lonsdale to obtain in the circumstances?

(c)If the answer to (b) is yes, what is the amount of compensation appropriate to that medical treatment?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

Chiropractic treatment

9. This claim was something of a red herring. Dr L Welberry, Ms Lonsdale’s general practitioner, wrote to Comcare on 10 July 2001 seeking compensation coverage for chiropractic treatment at a rate of one session a month for reduction of pain and increased mobility. By the time of the hearing, however, Ms Lonsdale had abandoned this as a required form of treatment. In the terms of the issues listed above, chiropractic treatment is medical treatment under paragraph (d) of the definition in [6] above if carried out by a registered practitioner. However, it is not being obtained by Ms Lonsdale and she sees no current need for it. It would therefore not be reasonable for Ms Lonsdale to obtain chiropractic treatment. It is not compensable as medical treatment under s 16 of the Act in Ms Lonsdale’s case at present. We note, however, that if such treatment is reasonably obtained in the future in respect of the compensable injuries, compensation for such treatment may be payable.

Massage

10.     Massage is medical treatment under paragraph (d) of the definition in [6] above.  Comcare paid for one or two massage sessions a week from 1997 to 2001.  Ms Lonsdale now pays for one session a month herself.  In her oral evidence Ms Lonsdale said the massage treatment is applied to her waist, legs, lumbar spine, shoulders and head.  It eases her back spasms and relieves body tension.  It enables her to do more stretching in the pool during hydrotherapy.  It emerged, however, that Ms Lonsdale has had a number of massage providers.  At the time of the hearing she was attending a Christine White and had been doing so for two months.  Ms Lonsdale explained that she had changed providers regularly because so many had been of little assistance to her.  She requires a type of massage known as deep tissue massage.  Her longest period with any had been three visits.  She identified the masseurs at Kaleen as having been good.  She has told Dr Welberry that massage was not working for her. 

11.     A number of the medical experts whose views were before us tended to see massage as a passive therapy that can encourage ongoing passive therapies at the expense of more active therapies such as exercise, which includes hydrotherapy.  A few of these experts, eg Dr G G Griffith (surgeon) and Dr P D Stevenson (physician), saw a place for massage in periods of acute exacerbations of pain.  Drs R Mellick (neurologist), N W McGill (rheumatologist) and P Darveniza (neurologist) were dismissive of its value.  Dr Griffith said that ongoing massage can raise issues of its cost as measured against the benefit.  Dr Darveniza saw ongoing massage as unnecessary, although this was in the context of Ms Lonsdale’s non-compensable headaches.  Dr McGill saw massage as having a very transitory effect.

12.     Dr Welberry supported the provision of massage as a therapy.  She relied on the views of Professor G D Champion (a rheumatologist) who has seen Ms Lonsdale as a treating specialist and who sees benefit in massage.  He says that it provides encouragement, support and an opportunity to discuss problems.  He regards “judicious use” as quite reasonable and prescribes a session once a week or once a fortnight as a part of a therapeutic course of treatment.  He cited the “Cochrane Database of Systematic Reviews” (“Cochrane”) which reviewed massage for low back pain as at 27 August 2003 concluding that massage is beneficial for patients with subacute and chronic non-specific low back pain in terms of improving systems and function.  Massage therapy was described as costly but a therapy that can save money in health care provider visits, pain medications and back care services.  Its effects are improved if combined with exercise and education.  Cochrane wrote, “The beneficial effects of massage in patients with low back pain are long lasting (at least one year after end of sessions).”  Dr Welberry favoured massage once or twice a week, or at least once a fortnight.

13.     Dr G C Speldewinde (rehabilitation, pain and musculoskeletal specialist) has treated Ms Lonsdale and sees massage as a usual adjunct to treatment.  He cited increasing evidence of the benefits of massage.  It is useful in cases of muscle tension, anxiety and mood swings and is effective for days.  He favoured a monthly session with up to two sessions a week in periods of pain.

14.     Ms Walker submitted that we should find it appropriate for Ms Lonsdale to have massage in periods of exacerbation of pain.  Mr Elliott pressed the arguments of the experts who do not favour massage and he argued that the treatment has become less reasonable because of its duration and cost.

15.     We are satisfied that Ms Lonsdale experiences low back pain.  The fact that she has been prepared to submit to a number of serious and unpleasant surgical interventions over the past 24 years suggests that she has a genuine physical injury.  If massage is useful to her in helping her to cope with the pain she experiences from her back injury we consider it to be medical treatment that would appear reasonable for her to obtain. 

16.     We note that Cochrane is “a regularly updated collection of evidence-based medicine databases, including The Cochrane Database of Systematic Reviews, which provide high quality information to people providing and receiving care and those responsible for research, teaching, funding and administration at all levels.”[2]  The evidence based research surveyed for Cochrane suggests a therapeutic effect from massage in cases of subacute low back pain.  We tend to prefer this evidence to that from those experts who oppose massage.  It appears up to date and definite.  It seems also that Ms Lonsdale has found a massage practitioner who can give her deep tissue massage. 

[2] consider that a massage session once a month would be justifiable in Ms Lonsdale’s case with consideration to be given to more frequent massage in times of flare-ups in symptoms.  Those practitioners in favour of massage saw anything from monthly massage to twice weekly massage as reasonable in Ms Lonsdale’s case.  We see the beneficial effects as cited by Dr Speldewinde and Professor Champion as justifying a once monthly frequency.  We note Mr Elliott’s cost benefit argument but, given Ms Lonsdale’s combination of compensable physical and psychological conditions, we see massage as having a continued justification as part of a total treatment regime.  We do not regard the passive nature of massage as likely to cause any real difficulty in Ms Lonsdale’s case as she does engage in hydrotherapy which we consider to be an active therapy.

18.     In formal terms we have found massage to be medical treatment.  We see it as treatment that it is reasonable for Ms Lonsdale to obtain in the circumstances.  We find the appropriate amount of compensation to be the cost of ongoing massage treatment once a month.

Hydrotherapy

19. There is no dispute that hydrotherapy, which is usually administered by a physiotherapist, is medical treatment under the Act. The medical experts were largely in agreement that it is a beneficial and active therapy. Dissentients were Dr Darveniza, who saw its value as debatable on the basis that dry land exercise is equally beneficial, and Dr Mellick who saw it as not indicated for headache. Dr Stevenson saw it as useful for a year or two.

20.     Comcare is prepared to pay for one session a week.  At present Comcare pays $45 a week for Ms Lonsdale to attend on five days.  Dr Griffith favoured one or two sessions a week with home exercise also.  Professor Champion favoured three sessions a week.  Dr Speldewinde supported a weekly session but also saw daily hydrotherapy as reasonable.  Dr McGill saw anything from a weekly session to five sessions a week as reasonable.  He suggested walking as useful exercise on days when Ms Lonsdale does not have hydrotherapy.  Dr Welberry favoured daily hydrotherapy. 

21.     Ms Lonsdale said she finds hydrotherapy relieves the pressure on her spine.  Physiotherapist Ms C Sproule set up an exercise regime for Ms Lonsdale on her first visit and Ms Lonsdale has directed herself on subsequent visits.  Ms Sproule inquires and monitors Ms Lonsdale’s program once a fortnight. 

22.     We find that it is reasonable for Ms Lonsdale to obtain hydrotherapy treatment from the provider she is using in Dickson, ACT.  The medical evidence is overwhelming that this is a highly desirable physical therapy.  We further find that it is reasonable for Ms Lonsdale to receive sufficient compensation to pay for two sessions of hydrotherapy a week.  We understand that Ms Lonsdale should, and will, engage in other exercise on the other days in the week, eg walking or home exercise.

Nerve blocks

23.     These are a form of injection that Ms Lonsdale has received at various times.  She told us that she had found them beneficial in her coccyx but unpleasant when used occipitally for her headaches.  She said she needs none of these at present. 

24.     There is no doubt that nerve blocks are a form of medical treatment under paragraph (a) of the definition in [6] above.  However, regardless of their potential value for Ms Lonsdale’s back condition, there is no indication that their use would be reasonable or required in any sense at present. 

25.     We were told that Ms Lonsdale would appreciate a determination in her favour on this treatment in case she needs it in the future.  As matters stand at present we cannot find that a nerve block procedure would be reasonable medical treatment for Ms Lonsdale to obtain.  Ms Lonsdale will need to contact Comcare with appropriate medical opinion(s) in support of such treatment if and when she and her medical practitioners decide that a nerve block would be therapeutic for Ms Lonsdale.

Pain management and counselling and travel to and from Sydney

26.     These two items are inextricably linked and are considered together.  Ms Lonsdale has several forms of pain management and counselling.  She sees Dr Fleming, a psychologist, in Canberra.  She has seen Professor Day and Professor Champion in Sydney also.  She sees Professor Day because he is expert in pain management and has a particular expertise in pharmacology.  Professor Day reviews her medications regime periodically and general practitioner Dr Welberry sees to the later prescriptions.  Ms Lonsdale finds that the travel to and from Sydney affects her back and causes pain.  She has taken Pethidine to assuage this pain.  The evidence shows that Ms Lonsdale had at one stage to be weaned off Pethidine and the medical experts giving oral evidence at the tribunal hearing considered the administration of Pethidine to be ill-advised.

27.     We find that pain management counselling is medical treatment under paragraph (b) of the definition in [6] above.  No expert suggested that Ms Lonsdale should not have access to this treatment.  The sole issue was the reasonableness of the location of some of the assistance, ie in Sydney.

28.     Dr Welberry is keen that Ms Lonsdale can see Professor Day annually.  While she concedes that Canberra has a number of reputable pain management specialists she considers that Ms Lonsdale has been seeing Professor Day for a long time.  Dr Welberry seemed unsteady in this evidence.  She identified Drs Speldewinde and Eaton as effective pain management practitioners in Canberra but said that the expertise in Canberra is not the same as in Sydney.  She agreed that there is pharmacological expertise in Canberra.  She said she would be prepared to investigate options in Canberra. 

29.     Dr Griffith supported Ms Lonsdale’s access to Professor Day.  He regarded the Pethidine use as undesirable and suggested better alternatives, all of which are not opiates.  Dr Griffith said Canberra has excellent pain management specialists, notably Dr Eaton, but Professors Day and Champion in Sydney have a particular expertise and Ms Lonsdale is an exceptional case.  As regards Dr Eaton, he said that it would not be unreasonable to propose that she attend Dr Eaton’s group at the Canberra Injury Management Centre where there is an integrated team approach to pain management and a good success rate.  He felt this worth exploring, especially given the Pethidine issue.

30.     Professor Champion supported Ms Lonsdale’s access to Professor Day on an annual basis given his unusual collection of qualifications.  He felt unable to speak with authority on what services Ms Lonsdale could access in Canberra. 

31.     Dr Speldewinde was confident that Ms Lonsdale could receive all the attention she needs in Canberra.  He saw no great need for a particular pharmacological input.  He did regard continuity of care as important, however. 

32.     Dr Stevenson was quite negative about Ms Lonsdale travelling to Sydney for this attention.  He said that Canberra has competent pharmacological specialists.  He was somewhat dubious about the range of medications Ms Lonsdale receives, considering she is on too many.  Some are said not to relate to the compensable injury.  He regarded the use of Pethidine for travel as unsatisfactory.  He considered that she would need to receive extraordinary benefit from such a trip for it to be worthwhile.  He saw the necessary focus now as on reducing the medications.

33.     Dr McGill considered that Canberra could cater adequately to Ms Lonsdale’s needs.  When he had seen Ms Lonsdale he noted the complicated list of medications she was receiving and thought access to Professor Day may be justified.  He changed his mind however, when he learned of the need for Pethidine when Ms Lonsdale travels to Sydney.  He regarded the “down side” of this as too great. 

34.     Ms Walker submitted that, although Ms Lonsdale may be able to obtain a full pain management therapy in Canberra, Comcare had supported her in going to Sydney for this assistance for 10 years.  Comcare had allowed the situation to develop.  A therapeutic alliance has developed between Professor Day and Ms Lonsdale.  This is an important part of patient care, said Ms Walker.  It would be unreasonable to interrupt it now.

35.     We consider that Ms Lonsdale’s pain management program involves ongoing psychological assistance from Dr Fleming (on a regular basis), general practitioner attention and an annual review by Professor Day who takes a particular interest in the medications she should be prescribed.  The preponderance of the above medical evidence is to the effect that Canberra can provide the services provided by Professor Day, especially as they are required only once a year.  Almost all medical experts express considerable concern regarding the need for Pethidine when Ms Lonsdale travels to Sydney.  The major argument favouring continued pain management in Sydney is the long term therapeutic alliance as advanced by Ms Walker.  While we would not want to undervalue that, we note that it is required fairly infrequently.  The great proportion of Ms Lonsdale’s pain management occurs in Canberra.  We consider that the evidence favours support for Ms Lonsdale receiving all of her pain management in Canberra where there is appropriate expertise, where she receives most of it already, and where use of Pethidine does not arise as an issue.

36.     We find that it is reasonable for Ms Lonsdale to obtain the forms of pain management she currently receives, including regular sessions with Dr Fleming.  We find, however, that the amount of compensation appropriate to this medical treatment is that sufficient to cater to her pain management as carried out in Canberra and not in Sydney.

CONCLUSION

37. We have decided that Ms Lonsdale is to receive compensation under s 16 of the Act for a massage session once a month, hydrotherapy twice a week and pain management in Canberra.

DECISION

38. The decision under review is varied such that Comcare is liable to pay compensation for pain management to be provided in Canberra, a deep tissue massage session once a month and two hydrotherapy sessions a week. The matter is remitted to Comcare for it to determine the elements of pain management and counselling to be provided in Canberra, including by which providers. This decision is favourable to the applicant who qualifies for costs associated with the application in accordance with s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 and the tribunal’s general practice direction.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member

Signed:         .....................................................................................
  Associate

Dates of hearing  4, 5 March, 7, 10 May 2004
Date of decision  May 2004
Counsel for the applicant          Ms Lorraine Walker
Solicitor for the applicant          Slater & Gordon Lawyers
Counsel for the respondent      Mr Grant Elliott
Solicitor for the respondent      Sparke Helmore Solicitors