McNamara and Comcare (Compensation)

Case [2018] AATA 3688

McNamara and Comcare (Compensation) [2018] AATA 3688 (3 October 2018)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )

)No: 2017/1125; and

General Division  )   2017/1128

Re: Christine McNamara
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL: Deputy President J Sosso
DATE OF CORRIGENDUM: 17 October 2018
PLACE: Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

  1. The date, ’30 January 2017’, appearing in the second line of paragraph 1.(a), is changed to ‘1 April 2017’;
  1. The date, ’30 January 2017’, appearing in the third line of paragraph 1.(b), is changed to ‘9 October 2016’;
  1. The date, ’30 January 2017’, appearing in paragraph 207, is changed to ‘1 April 2017’; and
  1. The date, ’30 January 2017’, appearing in paragraph 218, is changed to ‘9 October 2016’.

………………………………..

Deputy President J Sosso

 

Division:GENERAL DIVISION

File Numbers:         2017/1125; 2017/1128

Re:Christine McNamara

APPLICANT

AndComcare

RESPONDENT

Decision

Tribunal:Deputy President J Sosso

Date:3 October 2018

Place:Canberra

The decisions under review are affirmed.

........................................................................

Deputy President J Sosso

Catchwords

COMPENSATION – workplace injury – chronic pain syndrome – fibromyalgia – whether medical treatment sought to be obtained is in relation to the compensable condition – whether massage therapy and physiotherapy treatments were reasonable for the employee to continue to receive – decisions under review affirmed.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Abrahams v Comcare [2006] FCA 1829; 93 ALD 147

Bayani and Australian Postal Corporation [2015] AATA 342; 149 ALD 347
Chowdhary and Comcare [1998] AATA 448
Comcare and Alamos [2014] AATA 629
Comcare v Holt [2007] FCA 405; 94 ALD 576
Comcare v Mooi (1996) 69 FCR 439
Comcare v Rope [2004] FCA 540; 80 ALD 99
Comcare v Watson (1997) 73 FCR 273
Drummey and Comcare [2016] AATA 738
Howes v Comcare [2016] FCA 1521
Jorgensen and Commonwealth of Australia [1990] AATA 129; 23 ALD 321
Kennon v Spry (2008) 238 CLR 366
Manns and Comcare [2012] AATA 462
Popovic and Comcare [2000] AATA 264; 64 ALD 171
R v Kucma (2005) 11 VR 472
Rope and Comcare [2018] AATA 42; 158 ALD 183
Telstra Corporation v Hannaford [2006] FCAFC 87; 151 FCR 253

Topping and Comcare [2015] AATA 525

REASONS FOR DECISION

Deputy President J Sosso

3 October 2018

INTRODUCTION

  1. Ms Christine McNamara (“the Applicant”) seeks review of two decisions of Comcare – Exhibit 1 T214 pp. 978 - 982:

    (a)2017/1125 – the Review Officer, on 30 January 2017, affirmed an earlier Determination of 5 August 2016, that Comcare would not be liable from 30 January 2017 for massage therapy expenses pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”); and

    (b)2017/1128 – the Review Officer, on 30 January 2017, affirmed an earlier Determination of 7 November 2017, that Comcare was not liable for physiotherapy treatment expenses from 30 January 2017 pursuant to…

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AGLC
McNamara and Comcare (Compensation) [2018] AATA 3688
Case
[2018] AATA 3688
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by an employee, Ms McNamara, against a decision by Comcare to cease funding physiotherapy and massage therapy treatments. The dispute centred on whether these treatments were reasonable medical expenses for Ms McNamara to continue to obtain in relation to her compensable conditions, which included chronic pain syndrome and fibromyalgia. The Administrative Appeals Tribunal (AAT) heard the matter, with Deputy President Sosso presiding.

The AAT was required to determine whether the physiotherapy and massage therapy treatments sought by Ms McNamara were reasonable for her to obtain in the circumstances, pursuant to subsection 16(1) of the relevant legislation. This involved assessing the benefit of the treatments, their long-term effects, their potential to cure or significantly reduce the effects of the injury, whether they maintained the status quo, and their cost. The Tribunal also had to consider whether the treatments were part of a comprehensive plan to proactively treat the employee's injury and whether the reasonableness of the treatment should be assessed in light of the specific circumstances and impact of the injury on the employee.

The Tribunal applied established principles for assessing the reasonableness of medical treatment. It noted that a cost-benefit analysis is often required and that the test of reasonableness is both contextual and temporal, meaning a treatment may be reasonable for a period but become unreasonable due to cost or therapeutic reasons. The Tribunal considered expert medical evidence, including that of Dr Garth Eaton, an Occupational Physician, who diagnosed chronic widespread pain syndrome and persistent severe bilateral shoulder, upper limb, and elbow pain. Dr Eaton recommended continued physiotherapy and massage as considered reasonable, alongside other treatments. However, the Tribunal also noted that some specialists did not accept the diagnosis of fibromyalgia. The Tribunal ultimately found that physiotherapy was not reasonable from 30 January 2017.

The Tribunal affirmed the decisions under review, concluding that Comcare was not liable for physiotherapy expenses from 30 January 2017.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

A hearing was convened in Canberra on 5 – 7 June 2018. The Applicant was represented by Mr Jason Moffitt and Comcare by Mr Michael Snell of Counsel. The Applicant appeared in person, gave evidence and was cross-examined. The Tribunal also had the benefit of receiving evidence from the Applicant’s husband, Mr Paul Anderson, as well as a number of medical witnesses: Drs Garth Eaton, Paul Phillips and Tony Kostos.MEDICAL EVIDENCE In addition to the medical reports and assessments outlined above, the legal representatives for both the Applicant and Comcare obtained additional expert opinion evidence. The Tribunal had the benefit of both reading the various reports, and in the instance of Drs Eaton, Phillips and Kostos hearing their oral evidence. Outlined below is the additional medical evidence before the Tribunal.Dr Garth Eaton Dr Eaton is an Occupational Physician and the Applicant was referred to him by her legal representatives. Dr Eaton interviewed and examined the Applicant on 8 February 2018 and prepared a report dated 14 February 2018 – Exhibit 2. Dr Eaton was fully briefed, and his report discloses his perusal of 46 reports and documents as well as various radiological reports spanning from 2009 to 2017. On examining the Applicant, Dr Eaton made the following observation – Exhibit 2 p. 10:“There were minimal mildly tender spots around the body which were not consistent with superficial allodynia or fibromyalgia. However there were a few areas of deep tenderness around the shoulders.” Under the heading “Diagnosis”, Dr Eaton opined – Exhibit 2 p. 15:“Chronic widespread pain syndrome.Persistent severe bilateral shoulder, upper limb and elbow pain and associated dysfunction.Previous bilateral shoulder impingement syndrome, bursitis, tendinopathy requiring surgical decompression etc as described in operation reports.Chronic bilateral lateral and medial epicondylitis and extensor complex strain, tendinopathy and tears.” Dr Eaton made the following observations under the heading “Further Treatment/Management” of the Applicant – Exhibit 2 p. 15:“Further treatment should include the continuation of a strengthening and stretching exercise regime, prescribed medications, PRP injections, possible autologous tenocyte transfer to the elbows, further limited physiotherapy and massage as considered reasonable. Further psychological counselling as considered appropriate should occur.” Dr Eaton was pessimistic about the Applicant’s prognosis. He was of the opinion that she would experience ongoing pain and dysfunction in the affected areas of fluctuating severity indefinitely. He then went on to provide the following observations – Exhibit 2 pp. 15 – 16:“I have perused the multiple reports provided which detail all aspects of Ms McNamara’s conditions. There appears to be reasonable consensus that Ms McNamara developed a chronic pain disorder and required treatment with chronic pain management delivered through a multidisciplinary pain management program. The reports contain historical accounts of the development of the various musculoskeletal conditions subsequently diagnosed after the initial diagnosis of an occupational overuse injury/cervicobrachial pain syndrome.It appears that Ms McNamara developed extreme levels of pain with the various musculoskeletal conditions which normally would not cause such long-term levels of major disability and incapacity. In 2008 Ms McNamara was diagnosed by clinical psychologist Sophie Mitchell with a pain disorder associated with both psychological symptoms and a general medical condition…Associated with Ms McNamara’s chronic pain and dysfunction have been symptoms of anxiety and depression which commonly occurs. Ms McNamara’s shoulder condition was further complicated by the development of frozen shoulder, a very painful condition which would have delayed her recovery after the surgical procedures.I note Dr John Talbot, Dr Sumant Kevat, Dr Sean Low, Dr Nicholas Burke and Dr Geoffrey Speldewinde all diagnosed chronic upper limb pain syndrome or widespread pain syndrome. The diagnosis of fibromyalgia syndrome was not accepted by those specialists. I note in Dr Kostos’ initial and supplementary reports he opines that Ms McNamara has suffered with classical fibromyalgia and this condition had occurred continuously since her symptoms first developed. I disagree with his assessment and believe that Ms McNamara’s current diagnosis is principally one of chronic widespread pain syndrome occurring on a background of her various musculoskeletal strain injuries and multiple invasive procedures.Despite the underlying pathology evident on various investigations such as the epicondylitis and the shoulder impingement syndrome etc the intensity of pain and disability experienced is greater than what would usually be expected. This is because there is likely to be central sensitisation of nociception associated with a chronic pain disorder. This is why the various interventions multiple surgical and injection therapy therapies have not resulted in the expected full resolution of her condition.”

Decision

Reasons for decision

The Tribunal therefore finds that Comcare is not liable from 30 January 2017 for expenses pursuant to s 16 for treatment by way of physiotherapy.DECISION The decisions under review are affirmed.

Ratio Decidendi

Legal Principle Established

There have been numerous Tribunal determinations on the reasonableness of an employee continuing to receive massage therapy and physiotherapy treatments. Outlined below are the principles that can be gleaned from those determinations:(a)Subsection 16(1) requires the decision-maker to assess whether it is reasonable for the employee to obtain the medical treatment in the circumstances. As Deputy President Constance highlighted in Comcare and Alamos [2014] AATA 629, it is necessary to consider all of the circumstances, not only the beneficial effects of the particular medical treatment. Deputy President Constance went on to outline a non-exhaustive list of factors that could be considered in resolving this question (at [24]):othe benefit of the treatment to the injured worker;othe long-term effect of the treatment;owhether the treatment is likely to cure the injury or significantly reduce its effects;owhether the treatment maintains the status quo;othe cost of the ongoing treatment.(b)As is clear from the above list of factors, the decision-maker engages in a weighing exercise. Importantly, as part of that process, a cost/benefit analysis will sometimes be required. In Comcare v Rope [2004] FCA 540; 80 ALD 99 at [70] (“Rope”) Stone J observed that a treatment being:“…‘reasonable to obtain in the circumstances’ is a clear indication that, in this case, the Tribunal was required to engage in a costs/benefit analysis…The tribunal needed, among other things, to weigh the benefit of the PNI treatment against the cost of obtaining it…” See also Comcare v Holt [2007] FCA 405; 94 ALD 576.(c)The test of reasonableness is not only contextual, but also temporal. A treatment may be reasonable to obtain for a time, but its continued utilisation may become unreasonable, either because of cost or therapeutic reasons, or a combination of both. This point was explained by the Full Tribunal in Popovic and Comcare [2000] AATA 264; 64 ALD 171 as follows – [28]/177 – 178:“In relation to the applicant’s claim for physiotherapy treatment expenses, in our view there is no role for passive physiotherapy in the applicant’s current treatment regime. The physiotherapy he was having could not improve him in the long term, has limited, if any, short term benefit, and may in fact be contra-indicated. Any therapeutic benefit he received was small and short-lived. We accept that pain relief, even short-term relief or reduction in pain, can be therapeutic…However, in this case any benefit is outweighed by the counter-productive effect of it leading the applicant to a dependent state, inhibiting his ability to learn to cope, and to embark on pain management programs to assist him with that object…”(d)A treatment may also be “reasonable” if it comprises part of a comprehensive plan designed to pro-actively treat the employee’s “injury”. In short, the reasonableness of the contested treatment must be assessed in the context of the range of medical interventions that person is being given. Thus in Chowdhary and Comcare [1998] AATA 448, the Tribunal observed (at [53]):“In particular, there is no evidence of any plan to have the physiotherapy treatment accompanied by a course of physical exercise such that the applicant might become re-conditioned and better able to cope with pain and manage a return to work.”(e)the test for determining whether the treatment was reasonable for the employee to obtain in the “circumstances” is not a test of reasonableness in absolute or empirical terms, but, whether it was reasonable “in the circumstances” facing the employee. In short, what is reasonable treatment for one employee, having regard to their circumstances, may not be reasonable treatment for another employee with the same injury but experiencing different circumstances – Topping and Comcare [2015] AATA 525 at [36]; Rope and Comcare [2018] AATA 42; 158 ALD 183 at [32]. However, it would be an error to overly focus on subjective factors, lest the decision-maker fall into the error expounded by Gray J in Jorgensen. “Circumstances” properly understood, allows the decision-maker to take into account how the particular “injury” has manifested itself and impacted the employee. A prime example of such an inquiry is the experience of pain. Pain is inherently individual and not capable of rational explanation or measurement. It may be that a particular employee experiences elevated pain levels of a type that are uncommon. Those circumstances can be properly and appropriately factored into the decision-makers inquiry when determining reasonableness. Stone J observed in Rope at [16] factors such as an employee’s age, economic circumstances, martial stability et cetera may also be taken into account.CONSIDERATIONIntroduction