MARGHERITA VASILEVSKA and COMCARE
[2009] AATA 446
•14 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 446
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3473
GENERAL ADMINISTRATIVE DIVISION ) Re MARGHERITA VASILEVSKA Applicant
And
COMCARE
Respondent
DECISION
Tribunal Miss E A Shanahan Date14 May 2009
PlaceMelbourne
Decision The Tribunal affirms the decision under review. An oral decision to this effect was delivered on the day of hearing 14 May 2009.
No order was made as to costs.
(sgd) Miss E A Shanahan
Member
WORKERS’ COMPENSATION – injury to the right gluteus maximus muscle and right hip joint – possible spinal disc injury – request for acceptance of liability for physiotherapy, podiatry and orthotics denied – no evidence of benefit from orthotics – absence of referral from or supervision by a medical practitioner with respect to podiatry – physiotherapy not indicated – therapeutic value of treatment – section 4 definition of medical treatment not met – decision affirmed.
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
19 June 2009 Miss E A Shanahan 1. Ms Vasilevska suffered an injury to her right buttock on 9 January 2007 in the course of a physical training course required for her acceptance as an officer in the Australian Federal Police. Comcare accepted liability for this injury. The exact nature of Ms Vasilevska’s injury has taken a considerable time to delineate and is not yet fully resolved.
2. On 15 April 2008 a Comcare officer determined that liability for the cost of physiotherapy would cease on 9 May 2008. The determination was based on medical advice that physiotherapy was not beneficial and could in fact aggravate her injuries. On 9 May 2008 Comcare also determined that Ms Vasilevska had no entitlement to podiatry treatment. These determinations were reconsidered and affirmed by a Comcare officer on 11 July 2008. Ms Vasilevska lodged an application with the Administrative Appeals Tribunal on 29 July 2008 seeking review of that decision. On 9 August 2008 Comcare accepted liability for physiotherapy from 5 August 2008 until 30 October 2008 as Ms Vasilevska was to undergo surgery on her right hip. It would appear that the question regarding Comcare’s liability for physiotherapy has been resolved. However, Ms Vasilevska has not withdrawn that part of her application for review concerning physiotherapy. The Tribunal will therefore consider the liability for physiotherapy and podiatry.
3. Ms Vasilevska was self-represented. Mr John Wallace of counsel, instructed by solicitors Dibbs Abbott Stillman, appeared for Comcare. The Tribunal was provided with document pursuant to s 37 the Administrative Appeals Tribunal Act 1975 (the T Documents) and Comcare tendered the following documents :
(a) The T Documents - Exhibit R1
(b) Associate Professor John Hart’s report dated 20 January 2009 – Exhibit R2
(c)An undated letter from Mr James Pope send on 29 September 2008 – Exhibit R3
(d)The operation report prepared by Mr Jonathan Baré concerning Ms Vasilevska and dated 5 August 2008 – Exhibit R4
4. Ms Vasilevska and Associate Professor Hart gave evidence.
BACKGROUND TO THE APPLICATION
5. Ms Vasilevska sustained an injury, initially described as jarred right hip and right side lumbar, on 19 January 2007 during a physical training session. Comcare accepted liability for the injury. A tear of the gluteus maximus muscle in the right buttock was diagnosed by ultrasound on 2 April 2007 (T7, p30). An infiltration of the muscle with corticosteroids was conducted at the time of the ultrasound examination. The tear subsequently healed. Ms Vasilevska’s pain persisted. In November 2007 Dr Bruce Mitchell, who appears to be a sports medicine and spinal physician, attributed Ms Vasilevska’s pain to a ligamentous injury of the right sacroiliac joint. An injection of local anaesthetic and steroids into this joint was ineffective. A subsequent injection of the lower lumbar facet joints was of no benefit.
6. Dr Mitchell then directed his attention to the right hip. The hip was examined under local anaesthesia and Dr Mitchell reported that this did not alter Ms Vasilevska’s pain. An MRI examination of the right hip and lumbar spine was performed on 4 April 2008 and revealed an effusion reportedly in the left hip, and according to Dr Mitchell’s interpretation of the report, no other abnormality. Dr Mitchell was of the opinion that the spinal MRI revealed desiccation of lumbar discs L2 to L4/5 with prolapses of the discs at L4/5 and L5/S1. The radiologist was said not to have reported any disc prolapse but this is not so. The actual report (T32, p111) states there was a Broad based disc bulge at T11/12, L2/3, L3/4, L4/5, and L5/S1. No evidence of neural compression was reported. However, the radiologist, Dr Steven Irons, believed it was possible that the L4/5 disc bulge combined with facet arthropathy could potentially produce irritation of the L5 nerve root on either side. The Tribunal is assuming that the report of a small effusion in the left hip joint is a typographical error as the examination is titled … MRI OF THE RIGHT HIP. Dr Mitchell referred Ms Vasilevska to Mr Jonathon Baré, orthopaedic surgeon.
7. On 28 February 2008, that is some two months prior to the MRI, Associate Professor John Hart saw Ms Vasilevska at Comcare’s request. He diagnosed a healed right gluteus maximus tear and a right acetabular (hip) labral tear. The labrum is a horseshoe shaped arc of articular cartilage in the acetabulum which forms the socket of the hip joint and articulates with the head of the femur, the ball of the joint. Associate Professor Hart’s diagnosis was based purely on the clinical history and his examination. On examination he had found Ms Vasilevska tender over the iliac bone crest (not the sacroiliac joint) and on rotation, flexion and adduction of the right hip, she experienced right groin pain. Associate Professor Hart’s report implied that these findings in the hip were diagnostic signs of labral tear. Associate Professor Hart advised that physiotherapy could aggravate rather than improve Ms Vasilevska’s condition. Based on this advice, and after the treating general practitioner Dr Tan had agreed with Professor Hart’s opinion, Comcare ceased liability for the cost of physiotherapy as of 9 May 2008.
8. Ms Vasilevska saw Mr Baré on 19 June 2008 and he advised her to have a right hip arthroscopy. This took place on 5 August 2008 and revealed an anterior labral tear. The articular cartilage was debrided and a Ganz lesion removed. Ms Vasilevska has been free of right groin pain since this procedure. The Tribunal asked Associate Professor Hart if a Ganz lesion was what was commonly known as an osteophyte. He confirmed this was the case. While Ms Vasilevska’s groin pain has totally resolved she still has pain in the lower lumbar spinal region and has been advised to undergo surgery to the L4/5 vertebral disc.
9. In late January or early February 2007 shortly after sustaining her right buttock injury, Ms Vasilevska commenced wearing $70 orthotics in her shoes. She could not recall who suggested using these and Comcare was not asked to accept liability for the payment for these orthotics.
10. Ms Vasilevska trains (running) and exercises regularly at Olympic Park. As her old orthotics were wearing out she saw Mr John Pope at Olympic Park Sports Medicine Centre on 15 March 2008. She informed the Tribunal that she saw Mr Pope on the advice of her physiotherapist. Dr Christina Tan her general practitioner later provided a report dated 7 April 2008 stating that Ms Vasilevska required podiatry because her back pain prevented her bending to perform normal foot care. Ms Vasilevska denied this was the reason for seeking podiatry services.
11. Mr Pope diagnosed mild mid foot and rear foot pronation, mechanics apropulsive. All joint movements in the foot were reportedly normal, as was Ms Vasilevska’s gait. Mr Pope advised orthotics to provide:
… support for her feet due to the poor functional mechanics viewed, this will allow for a more propulsive economic gait when she is exercising, as well as giving her proper shock absorption for her job and day to day activity. …(T30, p108)
12. Mr Pope estimated that Ms Vasilevska would require three consultations over a period of six months and would need a review of the effectiveness of the orthotics provided. Comcare denied liability for podiatry treatment and orthotics on 11 July 2008.
13. Ms Vasilevska in her evidence confirmed that she had not been referred to Mr Pope by a medical practitioner. She had later sought supporting letters from Dr Tan, Dr Mitchell and Mr Pope but the letters provided were not very good and Dr Mitchell had been too busy to write. She said Mr Pope had told her the back symptoms would worsen without the benefit of orthotics.
14. Associate Professor Hart’s evidence is summarised under background to the application. In his oral evidence he confirmed his original diagnosis of 28 February 2008; that is, that Ms Vasilevska suffered from a right gluteus maximus tear and a tear of the labral cartilage of the right hip. He interpreted Mr Pope’s findings on examination, for the benefit of the Tribunal. The findings were those of mild pes planus, that is flat feet. Associate Professor Hart opined that shock absorber-type shoe inserts, obtainable from a chemist shop, were all that might be needed for patients with hip or spine pathology. He advised that Ms Vasilevska obtain second opinions regarding her feet and the planned L4/5 disc surgery, described by Ms Vasilevska as the insertion of an artificial disc.
LEGISLATION
15.Section 4 of the SRC Act defines medical treatment as:
medical treatment means:
(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
(c)dental treatment by, or under the supervision of, a legally qualified dentist; 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
…
(f)the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
…
(i)any other form of treatment that is prescribed for the purposes of this definition.
Section 16 of the SRC Act sets out the injured worker’s entitlement to medical expenses:
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment. …
SUBMISSIONS
16. Ms Vasilevska relied on the material before the Tribunal and did not make a formal submission.
17. Mr Wallace submitted that Ms Vasilevska’s claim does not meet the definition of medical treatment, in that she went to the podiatrist, Mr Pope, of her own accord and was not referred by a medical practitioner. Her treating general practitioner, Dr Christina Tan, had not supported the requirement for orthotics; and in the letter she provided, had said that podiatry treatment was needed as Ms Vasilevska could not attend to her own foot care because she had a limited ability to bend forward. Mr Wallace submitted that Dr Tan had neither referred Ms Vasilevska to Mr Pope for treatment nor had she supervised any treatment he had given or proposed. Associate Professor Hart was of the opinion that the use of orthotics would not be of benefit to any spinal or hip injury but that simple and cheap orthotics may provide a degree of comfort during walking and exercising. He did not believe there was any therapeutic value to Mr Pope’s suggestion of the use of more refined orthotics, costing up to $500 a pair.
THE TRIBUNAL’S DELIBERATIONS
18. Ms Vasilevska’s injury has been elusive in terms of diagnosis, and consequently, treatment has been delayed.
19. Ms Vasilevska’s provided no evidence to the Tribunal that orthotics would have a therapeutic benefit in terms of her back pain, other than Mr Pope’s request for approval and payment of the cost of orthotics, based on his examination findings. Associate Professor Hart could not see any benefit (in terms of relief of Ms Vasilevska’s back pain) in the use of such orthotics. Hence, provision of such treatment by Mr Pope could not be considered reasonable.
20. Ms Vasilevska’s attendance on Mr Pope was a self-referral. There was no medical practitioner referral and no medical practitioner supervision of any podiatry treatment. Dr Tan later provided a letter regarding podiatry treatment, referring only to Ms Vasilevska requiring foot care, which she could not provide herself because of limited forward flexion of the spine. There was no evidence that Mr Pope provided foot care. His recommendations related purely to the provision of orthotics. The s 4 definition of medical treatment, in particular s4(a), is not met.
21. Comcare, which had previously accepted liability for the cost of physiotherapy, ceased to do so on 9 May 2008. It did so on the advice of Associate Professor Hart, who considered the physiotherapy then being provided was likely to aggravate Ms Vasilevska’s lumbar pain rather than assist in its control. Comcare continued to accept liability for the cost of Pilates exercise. It reinstated liability for physiotherapy from 5 August 2008 to 30 October 2008. The three month cessation of liability for the provision of physiotherapy was based on sound medical advice that such treatment was likely to be aggravating Ms Vasilevska’s symptoms rather than resolving them. As such, the physiotherapy could not be considered reasonable treatment during that three month period as required in s 16(1).
22. Despite Comcare’s requests for a report from Mr Baré, the treating orthopaedic surgeon, the only information before the Tribunal is the operation report of 5 August 2008 (Ex R4). Thus, the Tribunal has not had the benefit of his opinion regarding the provision of physiotherapy and any need for orthotics.
23. Based on the evidence before it, the Tribunal affirms the decision under review.
I certify that the twenty-three [23] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E A ShanahanSigned: (sgd) Cassie Renfrew
ClerkDate of Hearing 14 May 2009
Date of Decision 14 May 2009
Self Represented Applicant Ms Margherita Vasilevska
Counsel for the Respondent Mr John Wallace, Dibbs Abbott Stillman Lawyers
Solicitor for the Respondent Ms Jessie Taylor
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