Mohan Raja and Comcare (Compensation)
[2020] AATA 1782
•16 June 2020
Mohan Raja and Comcare (Compensation) [2020] AATA 1782 (16 June 2020)
Division:GENERAL DIVISION
File Numbers:2017/0421 and 2018/0628
Re:Rajendram Mohan Raja
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:16 June 2020
Place:Brisbane
I affirm the decisions under review.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – claim for medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – hydrotherapy for lumbo-sacral strain (episode only) – whether treatment reasonable – whether applicant continues to suffer the effects of the compensable condition – decisions under review affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth)
CASES
Alamos and Comcare [2014] AATA 629
Bayani and Australian Postal Corporation (2015) 149 ALD 347; [2015] AATA 342
Blackwell and Comcare [2017] AATA 1357
Comcare Australia v Rope (2004) 135 FCR 443; [2004] FCA 540
Comcare v Holt (2007) 94 ALD 576; [2007] FCA 405
D’Amico and Comcare (Compensation) [2018] AATA 54
Evans and Comcare (Compensation) [2016] AATA 827
Jorgensen and Commonwealth of Australia (1990) 23 ALD 321
Napier and Comcare (Compensation) [2017] AATA 1452
O’Day and Comcare [2017] AATA 1328
Tuimaseve v Minister for Immigration and Border Protection (2018) 74 AAR 192; [2018] FCA 396REASONS FOR DECISION
Deputy President Dr P McDermott RFD
16 June 2020
INTRODUCTION
Mr Rajendram Mohan Raja (“the applicant”) seeks review of two decisions made by Comcare (“the respondent”). The first decision is the reviewable decision dated 25 November 2016,[1] which determined that there was no present liability to pay compensation pursuant to section 16 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) for “ongoing hydrotherapy/pool passes”. This first decision is the subject of application number 2017/0421. The second decision is the reviewable decision dated 6 December 2017,[2] which determined that the applicant did not presently suffer the effects of the compensable condition, and that there was no present liability pursuant to section 16 of the SRC Act. This second decision is the subject of application number 2018/0628.
[1] Exhibit A, T-Documents T92.
[2] Exhibit B, Supplementary T-Documents ST13.
The respondent accepted liability relating to workplace injuries on 15 January 1996 and 21 June 1997. The claim for “ongoing hydrotherapy/pool passes” relates to the accepted 15 January 1996 injury for “lumbo-sacral strain (episode-only)”.
It is for the Tribunal to determine whether the effects of the 1996 and 1997 injuries have ceased, and whether it is reasonable in the circumstances for the applicant to continue to receive compensation for “ongoing hydrotherapy/pool passes”.
BACKGROUND
On 8 February 1993, the applicant commenced work at the Department of Defence (“Department”). The applicant stated that he first injured his back in 1994 when getting out of the car, upon arrival at work. He had to leave early from work because of the pain, subsequently he took two days off work. The applicant’s general practitioner treated him with TENS[3] for pain relief for about one or two weeks. There was a full recovery within two weeks. The applicant received physiotherapy, and returned to his regular duties.
[3] Transcutaneous electrical nerve stimulation.
On 15 January 1996, the applicant was working in the research section of the Department itemising stock. When the applicant was moving some material, the applicant started to experience severe lower back pain. He was referred to have x-rays and physiotherapy, he had a few days off work.
On 6 February 1996, a statement by the applicant’s supervisor recorded that the applicant experienced lower back pain. The applicant took two weeks off work, and on 19 February 1996, the applicant recommenced working on light duties. After injuring his back in 1996 the applicant received a transfer to the administrative section, performing clerical and administrative duties.
On 11 March 1996, the applicant submitted a claim for Workers’ Compensation. The Workers’ Compensation form is dated 8 March 1996. The applicant claimed in respect of a “back pain – lumbo sacral strain” which occurred whilst inspecting different stores coming from warehouse transfer for relocation.
On 8 August 1996, the respondent accepted liability pursuant to section 14 of the SRC Act for an “episode of lumbo-sacral back strain”. The deemed date of injury was 15 January 1996.
Before the applicant commenced work with the Department, in 1984 or 1985 whilst living in Sri Lanka, the applicant was in a car accident. In 1987, the applicant immigrated from Sri Lanka, to Australia. In 1992, the applicant started working at the Concord Hospital.
In June 1997, the applicant was assisting in moving office furniture and documents. When he was putting down an archive box, the applicant experienced central lower back pain. The applicant rested over the weekend, and returned to work on the Monday, to move more archive boxes. He again experienced lower back pain, he reported the incident and then took two or three days off work. He was referred to a physiotherapist for treatment. He had appointments with the physiotherapist for about a month.
On 21 June 1997 the respondent accepted a compensation claim in respect of a “left sacroiliac muscle strain” arising from a workplace incident.
In June 1997 the applicant commenced hydrotherapy sessions. He attended a supervised hydrotherapy course, three times a week for a few months. The applicant thereafter undertook self-directed sessions as classes were not available. He then resumed the hydrotherapy courses three times a week. He said that he could complete the exercises himself, but he preferred to attend classes.
On 30 June 1997, the applicant’s General Practitioner, Dr Visvalingam referred the applicant to a physiotherapist. On 19 July 1997, a CT scan was undertaken. On 21 July 1997, Dr Visvalingam advised the physiotherapist, Ms Bell, that the applicant had two disc prolapses. On 27 November 1997, Dr Chen, Consultant in Occupational Medicine, also reported that the applicant had an underlying lower lumbar degenerative disc condition.
On 20 February 1988, Dr McDee-Collett, Neurological Surgeon, stated that the applicant continues to experience low grade mechanical back pain. On 20 July 2001, Dr Visvalingam stated that the applicant continues to experience pain from time to time.
On 27 March 2003, Dr Visvalingam reported that the applicant has a pre-existing degenerative lumbar spondylitis condition unrelated to the workplace incident. Dr Visvalingam opined that the degenerative injury contributes to the workplace injuries aggravating activities at 40% to 60%. A report by Dr White, Consultant Rheumatologist, dated 6 May 2003 concluded that the changes in the lumbar discs were degenerative.
On 7 May 2003, the respondent notified the applicant of its intention to cease to accept liability under all sections of the SRC Act in respect of the accepted condition. The respondent was not satisfied that the applicant continued to suffer from the effects of his compensable condition.
On 10 June 2003, the applicant wrote to the respondent, stating that he had not experienced any back pain prior to the workplace incident, and is unable to undertake his usual duties at work or at home.
On 13 June 2003, the respondent ceased to accept liability to pay compensation in respect of the accepted condition. On 20 June 2003, the applicant requested reconsideration of the decision. On 8 October 2003, the respondent affirmed the decision, as the respondent was not satisfied that the applicant had provided sufficient medical evidence to demonstrate the ongoing effects of the accepted condition. On 10 December 2003, the applicant lodged a review with the Tribunal.
On 21 January 2004, Dr Ellis, Consultant Surgeon, reported that the applicant’s suffering was partly due to degeneration. On 1 September 2004, Dr Bornstein reported that the applicant was suffering from degeneration and the changes were not due to the workplace injury.
On 23 May 2005, Deputy President Walker of the Tribunal made a decision upon application by consent of the parties pursuant to s 42C of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). The decision under review dated 8 October 2003 was set aside and the respondent accepted liability for the injury, and the applicant was entitled to compensation pursuant to section 16 and section 19 of the SRC Act.
On 19 April 2007, Dr Visvalingam referred the applicant to a physiotherapist, Mr Bashir Ahmad, with the view that the applicant would return to full duties. Dr Visvalingam reported on 8 August 2007, that Mr Ahmad’s treatment plan had improved the applicant’s back pain. On 10 August 2007, Dr Crocker, Consultant Occupational Physician, examined the applicant. Dr Crocker found that the applicant was fit for all duties, but he suggested a gradual return to work plan.
On 21 November 2007, the applicant attended a multi-disciplinary pain clinic at Concord Repatriation General Hospital. The clinic characterised his back pain in 1996 as episodic. The clinic observed that in 2006 the applicant started to experience constant pain.
On 1 December 2007, Mr Peter Mangioni, Psychologist, reported that the applicant’s disc prolapse was related to work-stress.
On 11 April 2008, the applicant resigned from the Department.
The applicant sought payment for Hydrotherapy sessions from Campbell Leisure Centre and Aquafit Fitness & Leisure between 2010 and September 2016. The hydrotherapy sessions amounted to 79 monthly sessions valued at $7,800.00.
On 20 June 2008, Dr Visvalingam wrote in support of the applicant’s swimming pool charges, and on 30 September 2008, Dr Visvalingam stated that the swimming would improve the applicant’s quality of life, but would not necessarily permanently resolve the applicant’s symptoms.
On 29 September 2016, the respondent determined that the applicant was not entitled to compensation pursuant to s 16 of the SRC Act for “hydrotherapy/pool passes”. The delegate was not satisfied that the treatment was “reasonable ongoing treatment” under the Clinical Framework for the Delivery of Health Services.
On 30 September 2016, Dr Visvalingam wrote in support of the applicant’s hydrotherapy, stating that the hydrotherapy reduces the applicant’s level of pain.
On 22 October 2016, the applicant requested reconsideration of the respondent’s determination that he was no longer entitled to compensation for “hydrotherapy/pool passes”. On 25 November 2016, the respondent affirmed its decision. On 24 January 2017, the applicant applied for review with the Tribunal.
On 4 July 2017, Dr Kevat, Consultant Rheumatologist examined the applicant. On 13 July 2017, Dr Kevat reported that the applicant’s back had a pre-disposition to strain, and that the applicant’s work contributed to the applicant’s pain.
On 30 August 2017, the respondent made a separate determination that the applicant was no longer entitled to compensation for medical expenses pursuant to section 16 of the SRC Act. On 6 December 2017, a review officer affirmed this decision. On 5 February 2018, the applicant applied for review of this second determination with the Tribunal.
LEGISLATION
The respondent is liable in certain circumstances to pay compensation for injuries. Section 14 of the SRC Act provides:
(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.
(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Section 16 of the SRC Act provides, in respect of compensation for medical expenses:
(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 the medical treatment.
Note:Compensation is not payable under this subsection in relation to certain claims (see section 119A).
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or changes paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
(4)An amount of compensation payable by Comcare under subsection (1) is payable:
(a)if the employee has paid the cost of the medical treatment – to, or in accordance with the directions of, the employee; or
(b)if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid the cost – to that other person; or
(c)in any other case – to the person to whom the cost is payable.
(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 the medical treatment;
(ii)remaining, for the purpose of obtaining that medical treatment, at a place to which the employee had 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:
Specified rate per kilometre x Number of kilometres travelled
Where:
specified rate per kilometre means such rate per kilometre as the Minister specifies, by legislative instrument, under this subsection in respect of journeys to which this subsection applies.
numbers of kilometres travelled means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey).
(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.
(9)Where:
(a)an employee suffers and injury;
(b)a person has reasonably incurred expenditure in connection with the transportation of the employee, or, if the employee has died, of his or her body, from the place where the injury was sustained to a hospital or similar place, or to a mortuary; and
(c)the employee, or the legal personal representative of the employee, does not make a claim for compensation in respect of that expenditure;
Comcare is liable to pay compensation to the person who incurred the expenditure of an amount equal to the amount of that expenditure.
Section 19 of the SRC Act provides for compensation for injuries resulting in incapacity:
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE – AE
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
(2A)For the purposes of subsection (2), a week is a maximum rate compensation week, in relation to an employee to whom this section applies, if:
(a)it is a week during which the employee’s incapacity prevents the employee working the employee’s normal weekly hours because the employee is unable to work or unable to work to which the employee worked before the injury; and
(b)the total number of hours that the employee has been prevented from working, or working at that level, during that incapacity, in that week and in all previous weeks, if any, to which paragraph (a) applies, does not exceed 45 times the employee’s normal weekly hours.
(2B)If, because the end of a particular week, the total of the hours that the employee has been prevented from working, or working at that level, in that week and in previous weeks, will exceed the total number of hours worked out in accordance with paragraph (2A)(b), then:
(a)subsection (2) applies in respect of the part of the week before that total number of hours is exceeded in accordance with subsection (2C); and
(b)subsection (3) applies in respect of the remainder of the week in accordance with subsection (2D).
(2C)For the purposes of paragraph (2B)(a), the compensation payable in respect of the part of the week to which that paragraph refers is an amount worked out using the formula:
X
_________
x
NWE – AE
NWH
where:
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
NWE means the number of normal weekly hours worked by the employee before his or her injury.
X is the total of the hours in that particular week:
(a)that would have counted towards the employee’s normal weekly hours (whether those hours are worked or not); and
(b)that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee’s normal weekly hours.
(2D)For the purposes of paragraph (2B)(b), the compensation payable in respect of the part of the week to which that paragraph refers is worked out using the formula:
NWH – X
_________
x
Reduced rate compensation entitlement
NWH
where:
NWH means the number of normal weekly hours worked by the employee before his or her incapacity.
reduced rate compensation entitlement is the rate of compensation that would have been applicable for the whole week had subsection (3) applied throughout the whole week.
X is the total of the hours in that particular week:
(a)that would have counted towards the employee’s normal weekly hours (whether those hours are worked or not); and
(b)that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee’s normal weekly hours.
(3)Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
(Adjustment percentage x NWE) – AE
where:
adjustment percentage is a percentage equal to:
(a)if the employee is not employed during that week – 75%; or
(b)if the employee is employed for 25% or less of his or her normal weekly hours during that week – 80%; or
(c)if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week – 85%; or
(d)if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week – 90%; or
(e)if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week – 95%; or
(f)if the employee is employed for 100% of his or her normal weekly hours during that week – 100%.
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee’s normal weekly earnings.
(3A)If, as a result of the incapacity:
(a)the amount per week payable to the employee in respect of his or her continues employment is reduced; and
(b)a pension under a superannuation scheme is payable to the employee;
subsection (3) applies in relation to the employee in relation to a week during which the employee is incapacitated as if the references in the subsection to the amount he or she was able to earn during the week in suitable employment were instead references to the sum of that amount and any amount of the pension referred to in paragraph (b) that is payable to the employee in respect of that week.
(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment (including self- employment) – the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition – the amount that the employee would be earning in that employment if he or she were engaged in that employment’;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment – the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee – whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, in Comcare’s opinion, reasonable in all the circumstances; and
(g)any other matter that Comcare considers relevant.
(5)Where an amount of compensation calculated under subsection (3) exceeds 150% of the amount called the Average Weekly Ordinary Time Earnings of Full-time Adults, as published from time to time by the Australian Statistician, the amount calculated shall be reduced by an amount equal to the excess.
(6)Where an amount of compensation calculated under paragraph (3)(a) is less than the minimum earnings, the amount so calculated shall be increased by an amount equal to the difference between that amount and the minimum earnings.
(7)For the purposes of subsection (6), the minimum earnings of an employee shall be taken to be:
(a)$202, or, if subsection (8) or (9) applies in relation to the employee, the sum of $202 and the amount or amounts required to be added under whichever of those subsections applies; or
(b)an amount equal to 90% of the employee’s normal weekly earnings;
whichever is less.
(8)If there are prescribed persons wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $50.
(9)If the prescribed children in relation to whom this Act applies (whether born before, on or after the date of the injury) wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $25 for each of those children, but an amount shall not be so added for a child in relation to any period before the date of birth of that child.
(10)If a prescribed child is:
(a)a prescribed person in relation to the employee; and
(b)the only prescribed person who is wholly or mainly dependent on the employee;
subsection (9) does not apply in relation to that child.
(11)If 2 or prescribed children are each:
(a) a prescribed person in relation to the employee; and
(b) wholly or mainly dependent on the employee;
subsection (8) applies in relation to one of those children and subsection (9) applies in relation to the remainder of those children.
(12)In this section, prescribed person, in relation to an employee, means:
(a)the spouse of the employee; or
(b)any of the following persons, being a person who is 16 or more:
(i)the parent, step-parent, father-in-law, mother-in-law, grandparent, child, stepchild, grandchild, sibling or half-sibling or half-sibling of the employee;
(ii)a person in relation to whom the employee stands in the position of a parent or who stands in the position of a parents to the employee;
(iii)a person (other than the spouse of the employee or a person referred to in subparagraph (i) or (ii)) who is wholly or mainly maintained by the employee and has the care of a prescribed child, being a child who is wholly or mainly dependent on the employee.
Note: In relation to subparagraph (12)(b)(i), see also subsection 4(2).
(14)For the purposes of the definition of prescribed person in subsection (12), a person who has the care of a child referred to in subparagraph (12)(b)(iii) shall not be taken not to be wholly or mainly maintained by an employee merely because the employee pays remuneration to the person for caring for that child.
“The Clinical Framework for the Delivery of Health Services” (“Clinical Framework”) of June 2012 is a guideline which measures and demonstrates the effectiveness of treatment. The Clinical Framework is designed to optimise the healthcare services and treatment of injured persons.
EVIDENCE
On 11 March 1996, the Department referred the applicant’s claim for compensation to the respondent. The applicant’s claim dated 29 March 1996, admitted that the applicant had injured his back previously, in October 1994. The applicant attached X-Ray and Ultrasound reports to his claim which was dated 14 February 1996, one of which stated that there was no significant malalignment or spondylolisthesis and there was a suspicion of focal disc pathology giving rise to the applicant’s symptoms. The applicant also attached a statement from Ms K. Pollock dated 19 February 1996, in which she stated that the applicant had mentioned to her that he had a sore lower back, which resulted in him having sit and rest. Also attached was a statement by Mr Neil McDonnell, the applicant’s then supervisor, dated 7 March 1996. Mr McDonnell was the applicant’s supervisor between 4 January 1996 and 19 February 1996. Mr McDonnell states that the applicant, after finishing his shift on 6 January 1996, informed him that he had lower back pain. The applicant did not return to work until 12 February 1996, when the applicant informed Mr McDonnell that he was having continuing back pain, and asked to be put on lighter duties.
On 6 August 1996, the respondent accepted the applicant’s claim for an episode of lumbo-sacral back strain, and that liability was accepted until 25 October 1996.
When the applicant applied for review in 2017 and 2018, the applicant stated: “I was ordered by the courts for these benefits, which are being denied.”[4]
[4] Exhibit A, T-Documents T1 p. 5.
In a letter dated 13 March 2003, the respondent remarked:
From the history of Mr Monhanraja’s claims, including medical expenses and incapacity for work, it seems that his ongoing back symptoms may not be related to any of his accepted claims. The medical evidence relates to his back symptoms to lumbar disc problems. The medical evidence relates his back symptoms to lumbar disc problems with Dr Chen persuasively arguing these problems are not related to any of his accepted claims.[5]
[5] Exhibit A, T-Documents T29 p. 52.
In a letter dated 7 May 2003, the respondent advised the applicant of its intention to determine that liability for the injury had ceased. The respondent referred to the report of Dr Chen, specifically, when Dr Chen concluded that the applicant’s degenerative disease contributed to the aggravation of the spinal condition. On 10 June 2003, the applicant wrote to the respondent, stating that he continues to suffer from episodes of back pain, and that prior to the incident at work, the applicant did not suffer any back pain. The respondent gave effect to its decision on 13 June 2003. Subsequently, on 20 June 2003, the applicant requested a reconsideration of the decision, attaching the medical reports of Dr White and Dr Visvalingam. The applicant in this letter, repeated that he did not suffer from any back pain or discomfort prior to the incident.
On 8 October 2003, the respondent affirmed the determination of 13 June 2003. The respondent relied on the reports of Dr Chen and Dr Visvalingam. The respondent also took into consideration a further report by Dr Visvalingam and Dr White. The respondent observed that the doctor reports, though examining the applicant’s condition, did not conclude the causal link between the condition and the applicant’s employment. On 10 December 2003, the applicant applied for review with the Tribunal.
On 23 May 2005, the parties came to terms pursuant to section 42C of the AAT Act, where the decision was set aside, and the applicant was entitled to payments.
On 1 July 2008, the respondent accepted liability for the gym program involving swimming three times a week. On 5 July 2008, the applicant wrote to the respondent, outlining how much the swimming program would cost.
Years later, in a letter dated 29 September 2016, the respondent determined that the applicant did not presently require ongoing hydrotherapy and pool passes. The applicant provided invoices relating to hydrotherapy lessons from 17 August 2005 to 1 November 2016.
On 25 November 2016, the respondent affirmed its decision dated 29 September 2016. The respondent relies on s 16 of the SRC Act, namely that compensation is payable for reasonable medical treatment, obtained in relation to the accepted condition. The respondent considered that, though the hydrotherapy may be relieving the applicant’s symptoms according to Dr Visvalingam’s medical report, there has been no assessment regarding the Clinical Framework. The respondent was unable to find the treatment reasonable in the circumstances.
On 30 August 2017, the respondent determined that it had no present liability for medical expenses. On 6 December 2017, the respondent issued a reconsideration decision which affirmed the decision of 30 August 2017. The respondent wrote:
Whilst you may be experiencing ongoing symptomology in your back, the medical evidence from both Dr Kevat and Dr Visvalingam support that your current symptomology does not relate to the injury sustained on 15 January 1996. Dr Visvalingam opined that a disc prolapse and nerve impingement were sustained in the injury the following year, as well as an impact from degenerative spondylosis. Dr Kevat did not consider that there remained any effect from prior aggravations and attributed your presentation solely to the natural progression of your degenerative condition. In conclusion, I consider that any ongoing requirement for medical treatment does not relate to your compensable condition of lumbo-sacral sprain with date of injury 15 January 1996.[6]
[6] Exhibit B, Supplementary T-Documents ST13 p. 354.
Medical Reports
On 14 February 1996, Concord Repatriation General Hospital reported that the applicant had facet joint degeneration and back pain. Further, Dr Kannangara in a medical report dated 19 February 1996, stated that the applicant was complaining of an aching back, that the applicant has had a small episode in the past where he twisted his back in 1994, and that physiotherapy had been suggested, but no surgery was required.
A physiotherapist’s report from the Australian Physiotherapist Association dated 29 March 1996, indicates that the applicant was being treated for lumbar spine issues.
A referral by Dr Visvalingam, dated 30 June 1997, referred the applicant to Mr Bell, Physiotherapist, and stated that the applicant had recovered from a back injury in 1996, but had once again injured his back moving stock on 21 June 1997.
A letter dated 12 July 1997 from the Minto Physiotherapy Centre indicates that the applicant’s condition was expected to improve due to physiotherapy exercises.
In a medical report dated 21 July 1997, Dr Myerson stated that there were small calcifications on the posterior disc herniations. Dr Visvalingam in a report dated 21 July 1997, stated that the applicant had two disc prolapses, and referred the applicant to physiotherapy to strengthen the applicant’s back.
A medical report by Dr Chen dated 27 November 1997 states that the applicant has continuing pain in his back, left leg and buttocks, but is around 50-60% better. The applicant’s sitting and driving tolerance was between three quarters of an hour, but the applicant had no difficulty in standing, except when his back was sore. He stated that he does not have trouble working, but avoided heavy loads. Dr Chen reported that the applicant showed no signs of restricted movement, however the applicant was experiencing some tenderness in his lower back. There was normal strength, reflexes and sensation. The CT scan showed that there was a small calcified posterior disc. Dr Chen concluded that the events leading up to and around 21 June 1997 probably aggravated an underlying lower lumbar degenerative disc condition. Dr Chen stated: “the history of his back pain symptoms also indicates low back pain of discogenic origin.”[7] Dr Chen was of the opinion that the applicant’s condition would improve over the next few months. Dr Chen also stated that “his current hydrotherapy program appears appropriate. However, he should be encouraged to move on to a self-maintenance hydrotherapy and swimming exercise program.”[8] Dr Chen stated that the applicant was fit to return to clerical tasks, but the applicant should avoid heavy lifting tasks. Dr Chen stated:
His prognosis is for this low back pain episode to gradually settle over the next few months. The episode of aggravation of his pre-existing lumbar disc disease is temporary. This condition should settle spontaneously within the next few months. This is in spite of and irrespective of any treatment.[9]
[7] Exhibit A, T-Documents T12 p. 32.
[8] Exhibit A, T-Documents T12 p. 32.
[9] Exhibit A, T-Documents T12 p. 33.
A medical report by Dr McGee-Collett dated 20 February 1998, states that the applicant made good recovery after both occasions on which he injured his back. Dr McGee-Collett also noted that the applicant continues to have back pain. However, upon examination, the applicant showed no abnormal neurological signs. He stated: “he certainly has a “bad back” and will have to look after his back and avoid heavy physical work.”[10]
[10] Exhibit A, T-Documents T13 p. 34.
In a medical report by Dr Meyerson dated 26 February 2000, Dr Meyerson observed that there were mild degenerative changes present. However, Dr Chaitowitz reported on 2 August 2000, that there were no significant changes in appearance from 19 July 1997.
On 10 August 2000, the applicant was referred to a physiotherapist because of back pain. On 11 August 2000, the physiotherapist reported that the applicant had less back and leg pain, but increased restriction of movement in the lumbar spine and tightness. The physiotherapist said that the applicant was able to return to work full time, but required 9-16 treatments.
On 9 July 2001, the physiotherapist developed a physiotherapy plan for the applicant. The physiotherapist stated that the applicant was fit for duties, but the applicant required around 10 further treatments on the lumbar spine, with the estimated cessation date of treatment being 13 August 2001.
A medical report dated 20 July 2001 by Dr Visvalingam Referred to a workplace incident in 1997 and remarked that: “Mr Mohanraja has suffered from back pain since then. Usually the pain is of short duration and does not require more than a few days of rest, and analgesia.”[11] The doctor continued:
However on the 31st of July 2000, he had to climb down a flight of 10 stairs, during a black out, while he was attending a training course for work. This aggravated his back pain severely, and he had prolonged treatment for this including physiotherapy. A repeat CT scan of the back did not show any new injury, and the findings were unchanged compared to the last scan on 19/07/1997.[12]
[11] Exhibit A, T-Documents T25 p. 46.
[12] Exhibit A, T-Documents T25 p. 46.
The report dated 20 July 2001 stated: “He has a recurrence of this back pain, again on 14th June 2001. No specific injury at work has caused this.”[13]
[13] Exhibit A, T-Documents T25 p. 46.
On 20 July 2001, Dr Visvalingam opined:
It is my opinion that his intermittent episodes of back pain are due to the original injury in 1997. There is no treatment which could ensure that there will be no further recurrences of back pain.[14]
[14] Exhibit A, T-Documents T25 p. 46.
On 11 November 2002, the applicant returned to the physiotherapist after experiencing further pain in his back. The physiotherapist recommended 10 further treatments and estimated a cessation date of 2 December 2002. The physiotherapist intended to develop exercises to develop the applicant’s strength and decrease hypermobility.
In a medical report dated 27 March 2003, Dr Visvalingam reported that the applicant “has a pre-existing lumbar spondylitis. However the episodes of pain are usually precipitated by some activity which places a strain on his lower back.”[15] Dr Visvalingam stated that the applicant’s lumbar spondylitis and disc prolapse are unrelated to the applicant’s employment. It is reported that the lumbar spondylitis and disc prolapse contributes to the aggravation of the back injury. Dr Visvalingam estimated that the degenerative disease contributes 40% to the symptoms, and the aggravating activity 60%. The doctor stated “The lumbar spondylitis that Mr Mohan Raja has is permanent. However the acute exacerbations that he suffers are temporary.”[16] Dr Visvalingam also noted that the applicant used hydrotherapy when his back pain was severe.
[15] Exhibit A, T-Documents T30 p. 55.
[16] Exhibit A, T-Documents T30 p. 56.
On 6 May 2003, Dr White reported that the applicant’s condition was generally aggravated by standing or sitting for long periods of time. At that time, the applicant was receiving physiotherapy and taking Brefen and Voltaren as well as Endep. Dr White stated:
I agree that such disc pathology can be held responsible for his mechanical back pain, but the surgical intervention wouldn’t be warranted, despite the duration of his history. Because there hasn’t been any neurological compromise, treatment should remain conservative and I outlined the rationale of management to him.[17]
[17] Exhibit A, T-Documents T31 p. 57.
In a medical report dated 21 January 2004, Dr Ellis reported that the applicant was experiencing lower back pain, which was aggravated by bending, lifting, prolonged standing and sitting. The applicant stated that the pain spreads to the lateral aspect of the right thigh and to his knee, and that there was no numbness. At work, the applicant could work at the computer for about an hour but then required a break. The applicant could no longer maintain his home and garden in the same way as he did before or participate in sports with his children. The X-Rays and CT scans undertaken showed no degenerative changes. However, the applicant’s movement was reduced. Dr Ellis states “as a result of the injuries at work described above while employed by the Department of Defence, the Army, Mr Mohanraja has suffered musculo-ligamentous contusion, aggravation of degenerative change in his back.”[18] The applicant was physically unfit for repeated bending and heavy lifting and if he were to be involved in this type of work then recurrence and exacerbation of his back condition could be expected with an increased likelihood of the need of surgical intervention. Dr Ellis reported that the applicant would need to continue medical treatment with further consultations, and that there would be deterioration.
[18] Exhibit A, T-Documents T39 p. 77.
Dr Ellis also added that according to the Comcare Tables the applicant’s whole person impairment (“WPI”) should be assessed at 10%, equivalent to loss of less than half the normal range of movement in the thoraco-lumbar spine, according to Table 9.6. Under Table 9.5, a 10% level of impairment, with difficulty with grades and steps.
On 3 June 2004, Dr Visvalingam reported that the applicant suffers from chronic back pain and left leg pain of a prolapsed disc, which occurred when he was at work moving stock.
In a medical report by Dr Bornstein dated 1 September 2004, it was reported that the applicant was receiving treatment through Celebrex and Capadex. The applicant had a dull ache in his back, which got worse when he stood or sat for long periods of time. The applicant was restricted in straightening his leg. The calcifications on the protrusions showed the same as the report in 1997. The reports showed that there were slight degenerative symptoms. Dr Bornstein states, “I would agree that the patient’s back pain is discogenic in origin which basically was a mechanical back pain. It is based on disc protrusions.”[19]
[19] Exhibit A, T-Documents T42 p. 82.
In a medical report dated 19 April 2007, Dr Visvalingam referred the applicant to Mr Ahmad, Physiotherapist. The referral stated: “in the past he has found hydrotherapy and physiotherapy of some benefit, when the pain is intractable.”[20] Dr Visvalingam stated that he wanted to assist the applicant in getting back to normal work hours.
[20] Exhibit A, T-Documents T49 p. 100.
A physiotherapy report of Mr Ahmad dated 24 April 2007, shows that the applicant was sore to touch, and showed poor strength and control levels. Mr Ahmad recommended an exercise plan for the applicant. Mr Ahmad said that any gym based program would likely aggravate the problem.
The applicant also undertook a pre-exercise assessment report on 28 May 2007. The applicant, at this time, was managing his work by taking one or two days off, and by taking pain killers. The applicant reported that after physiotherapy his pain levels dropped by about 40%. The lumbar spine movements were only 40% of the full range and were painful and sensitive at the end range. The applicant’s hip extensors were only 55% of normal strength.
On 24 July 2006, Mr Ahmad reported that the hydrotherapy program was designed to develop core stability and abdominal bracing, range of movement and strength related activities, leading into the more challenging gross movements such as squatting. Mr Ahmad stated that the applicant reported no post-exercise pain. However, the applicant was feeling pain from the gym sessions, though the pain in the applicant’s back had eased. The pain the applicant reported was, at this time, confined to a limited area in the left lumbo-sacral area. The applicant was encouraged to complete the exercise plan by himself. Mr Ahmad reported that the applicant’s general body strength and cardiovascular fitness had also improved.
In a medical report dated 8 August 2007, Dr Visvalingam reported that the applicant had some improvement with the treatment from the physiotherapist. Dr Visvalingam stated that the applicant could still not work more than 6 hours due to the pain. He recommended that the applicant continue with the back-strengthening program to improve his tolerance.
On 10 August 2007, Dr Crocker reported in a medical report that the applicant attended a medical appointment pursuant to s 36 of the SRC Act. Dr Crocker reported that the applicant’s pain increase had coincided with his daughter’s wedding in 2006 and his overseas trip in 2007.
Dr Visvalingam wrote a report dated 8 September 2007, where he stated that the applicant’s pain had worsened over the last six months. Dr Visvalingam referred the applicant to Dr Hong, Pain Management Specialist.
Subsequently, Dr Hong and Dr Lim wrote a medical report dated 22 November 2007. The medical report states that the applicant was experiencing increase in pain by changes in weather, prolonged sitting, standing and walking. The applicant at this time, found relief in taking pain medication and undertaking acupuncture. The applicant was suffering from depression as a result of the injury and had sleeping problems. The applicant liked doing gardening but was limited because of his back pain. The medical report recommended that the applicant complete a home exercise program, with swimming three times a week to strengthen his back, and physiotherapy.
Mr Mangioni, Psychologist, reported on 1 December 2007, that the applicant was not only experiencing difficulties with managing pain at work, but the applicant also has ongoing disputes with management at work. The applicant wanted to retire, but decided that he needed to keep working. When he lived in Sri Lanka, the applicant was in a high level managerial role, but undertook clerical work in Australia. Mr Mangioni stated:
He is extremely anxious about the deterioration in symptoms, concerned of what will happen in the future. Activity significant worsens pain. He experiences associated fatigue. He cannot engage in activities which he used to use as a form of relaxation.[21]
[21] Exhibit A, T-Documents T69 p. 149.
On 14 February 2008, Dr Hong reported that the applicant’s pain had improved through the use of a TENS machine and physiotherapy, Dr Hong mentioned this again in a medical report dated 12 March 2008. Mr Mangioni also mentioned how the TENS machine had reduced pain by 10-20%.
Mr Mangioni on 22 February 2008 recommended that the applicant speak to his doctor to manage his chronic pain. The psychologist also noted that the applicant’s pain would increase with the increased tensions between himself and his manager and other work colleagues. Mr Mangioni taught the applicant pain-coping and muscle-relaxation strategies. On 26 February 2008, after receiving a letter from the respondent, which stated that the applicant’s treatment could not be claimed as the applicant did not have an accepted psychological condition. Mr Mangioni wrote to the respondent on 26 February 2008, to explain that the treatment sessions were focused on pain not psychological treatment. On 13 March 2008, Mr Mangioni stated that the applicant had reported good progress in his pain control techniques, by using psychological muscle control strategies.
On 16 April 2008, Dr Sheh reported that the applicant had a sacroiliac joint injection, and his walk had improved as did his pain.
Dr Visvalingam wrote a medical report on 20 June 2008, he stated that the applicant had been experiencing chronic back pain, and that the pain was managed by medication and exercise, particularly pool exercises. Dr Visvalingam stated:
He will need to swim as well as maintain his exercise program life long as there is no other treatment of his condition. He will need to do his exercises and swim daily to get the best results, however a minimum of three days a week is recommended.[22]
[22] Exhibit A, T-Documents T81 p. 164.
On 30 September 2008, Dr Visvalingam wrote a medical report describing the applicant’s progress. Dr Visvalingam reported that the applicant was participating in a swimming program, and as a result the applicant’s condition had improved.
In a medical report dated 12 December 2011, Dr Visvalingam wrote that the applicant had suffered chronic back pain since a workplace incident. Dr Visvalingam stated that the applicant had a degenerative disease, but stated that the condition was aggravated by the workplace incidents. Since then, the applicant had attended physiotherapy and hydrotherapy sessions. The applicant was also attending a chronic pain management program. The applicant’s symptoms of nerve root irritation commenced after the injury at work. Dr Visvalingam stated that the pain was as a result of the workplace injury. However, Dr Visvalingam also stated that the applicant underwent surgery, because he had advised that the nerve root compression was due to the natural ageing process. He stated that future treatment was dependent on the applicant’s progression. Dr Visvalingam stated:
The gym and hydrotherapy will also be required long term, as his back pain is permanent. The effects of this injury did not end when his employment with the Department of Defence ended.[23]
[23] Exhibit A, T-Documents T88 p. 177.
Dr Visvalingam stated that gym exercises and the hydrotherapy sessions would help to reduce back pain, though the applicant still needed the assistance of medications.
On 30 September 2016, Dr Visvalingam wrote a medical report, which started that the applicant has chronic pain as a result of degeneration in his spine. Dr Visvalingam said:
Mr Mohan Raja also benefits from regular hydrotherapy as this stops his back from getting stiff and painful. By practicing hydrotherapy he is able to reduce his level of pain and the dosage of medication.[24]
[24] Exhibit A, T-Documents T91.1 p. 184.
On 13 July 2017, Dr Kevat, Consultant Rheumatologist gave a medical report. He reported that the applicant said to him that he had no back pain before the incident in 1996, though the applicant suffered an injury in 1994 and the applicant had suffered from back pain since the 1990s. Dr Kevat wrote:
The arrangement relating to swimming lessons was continued, with ongoing requests in the ensuing years until September 2016 when he was notified that there was no longer an entitlement to hydrotherapy. He says that since this occurred he has become deconditioned, and his weight has increased from 77kg to 90kg.[25]
[25] Exhibit B, Supplementary T-Documents ST5 p. 334.
Dr Kevat noted that the applicant had a degenerative condition in his spine, that the applicant had a degenerative disc disease with prolapses and associated changes causing spinal and foraminal stenosis. He determined that the applicant had a degenerative lumbar spine condition which at times related to workplace activity. The workplace incidents exacerbated the applicant’s condition. Some other exacerbations had occurred outside of the applicant’s employment. He remarked that the applicant’s lumbar spondylosis was a pre-existing condition. The psychological conditions are likely to have enhanced the severity of his pain in relation to the condition. Dr Kevat stated:
These exacerbations were self-limited, and are unlikely to have contributed in any significant degree to the progression of his lumbar spondylosis.[26]
Dr Kevat was not of the view that the incidents constituted an aggravation of a pre-existing condition. He estimated that the exacerbation would have ceased in September 2008: “I do not consider the Applicant continues to require hydrotherapy in relation to his accepted compensable condition of “episode of lumbosacral back strain”’.[27] He concluded that Hydrotherapy should be used as a short term or medium term solution.
[26] Exhibit B, Supplementary T-Documents ST5 p. 337.
[27] Exhibit B, Supplementary T-Documents ST5 p. 338.
Following the respondent’s determination dated 28 July 2017, Dr Visvalingam submitted a medical report dated 9 August 2017, where he wrote:
It is most likely that this work related injury accelerated the degenerative changes in his spine.[28]
Dr Visvalingam stated that the hydrotherapy exercises were highly recommended.
[28] Exhibit B, Supplementary T-Documents ST7 p. 342.
Return to Work
On 4 August 2000, Dr Visvalingam, signed a return to work form, stating that the applicant “should not do any manual work.”[29]
[29] Exhibit A, T-Documents T17 p. 38.
On 8 September 2000, Dr Visvalingam stated that the applicant could do office duties only, and would need to go to physiotherapy during the week, between 11 September 2000 and 24 September 2000.
On 22 September 2000, Dr Visvalingam determined that the applicant was able to return to normal duties. However, on 22 June 2001, Dr Visvalingam stated that the applicant could complete the present duties, but only for 4 hours a day.
On 6 July 2001, Dr Visvalingam stated that the applicant was fit for all duties associated with the present job, but the applicant required extra break times.
A rehabilitation report was given on 24 August 2005, in which the rehabilitation case manager took into account that the applicant was unable to lift weights greater than 10kg, and was limited in lifting, bending and twisting. It was also noted that the applicant had difficulty sitting or standing for long periods of time. The applicant’s chair was adjusted, and the recommendations of the applicant’s doctor were implemented.
On 5 April 2007, a workplace assessment report noted that the applicant had a prolonged recovery time, stating:
A 3 month period of hydrotherapy was undertaken 1.5 to 2 years ago which improved his function more effectively than his physiotherapy treatment resulting in walking with more at ease and less pain with sitting and standing for a lengthy period following this treatment.[30]
[30] Exhibit A, T-Documents T48 p. 95.
During a workplace assessment, on 5 April 2007, the applicant stated that his pain was around 7-8 out of 10 at around 11:00AM and reduced to 5-6 by the end of the day. The applicant’s pain was aggravated by sitting or standing, but is relieved by laying down.
In a return to work plan dated 23 April 2007, the applicant’s injury was labelled as chronic low back pain. The workplace wanted the applicant to return to his original work hours, by completing suitable duties.
On 11 July 2007, a return to work plan stated that the applicant was gradually upgrading to regular hours, but the applicant was only to engage in activities that were recommended by his doctor.
On 18 September 2007, the respondent made the determination that the applicant could commence a rehabilitation program for his lumbo-sacral strain injury. In reliance on Dr Crocker’s report, the respondent recommended that the applicant start to increase his hours. The respondent also noted that the applicant required a reasonable excuse not to participate in the rehabilitation program.
The applicant signed a return to work plan on 3 October 2007 which increased the applicant’s hours.
Progress Reports
A progress report dated 9 May 2007 stated:
Mr Ahmad was contacted on 9 May 2007 and stated Mr Mohanraja has attended 4-5 times and he is reporting decreased pain with an increase in sitting tolerance. He also stated he has provided Mr Mohanraja with education regarding his back condition, disc pressure and resulting discomfort and management of this condition. He will be seeking approval for Mr Mohanraja to commence hydrotherapy and gym program.[31]
[31] Exhibit A, T-Documents T53 p. 108.
In a progress report dated 15 June 2007, it was reported that the applicant stated on 21 May 2007 that his pain had reduced. On 25 May 2007, the applicant’s work duties were upgraded with a return to work plan. On 14 June 2007, the applicant started to attend gym sessions, focusing on core stability, flexibility and abdominal muscle strengthening. The report recommended further monitoring.
On 16 July 2007, a progress report stated that the applicant was having trouble lifting weights whilst at the gym, the physiotherapist provided a 12kg weight limit. The applicant stated that he has increased back pain due to an increase in work hours. The applicant was at the time working 6 hours a day.
On 27 August 2007, it was reported that the applicant had shown some improvement.
In a progress report dated 25 September 2007, it was reported that the applicant had had two days off because of back pain, with only doing light exercise at home. The applicant, when recovered, returned to work and the gym. At this time, the applicant was still taking medication, and the applicant stated that his work performance had been affected due to stress and fatigue. On 25 September 2007, the applicant stated that he was tired as he continued to wake up early, due to a dull ache in his back.
As at 4 October 2007, a case closure report stated that the applicant was able to do the same duties as he was doing prior to injury, though the applicant was still undergoing treatment.
On 18 October 2006, a medical treatment plan was formulated, which stated:
Mr Mohanraja has chronic back pain as a result of the injury at work. This is present on most day. From time to time there are exacerbations which require time off from work and analgesic medication. It is only if the pain persists despite the above treatment that he will require physiotherapy w. hydrotherapy.[32]
[32] Exhibit A, T-Documents T93 p. 245.
On 1 September 2009, a treatment plan was developed for the applicant’s hydrotherapy. It was recommended that the applicant undertake self-directed hydrotherapy, twice daily, indefinitely. Such a treatment plan was also recommended on 5 October 2010. On 9 October 2012 in a Medical Certificate for Workers’ Compensation Form, Dr Visvalingam wrote: “Hydrotherapy 3 times a week also helps to keep the spine as flexible as possible and prevent exacerbations.”[33]
Medical Records
[33] Exhibit A, T-Documents T93 p. 274.
Chamberlain Street Medical Practice
On 11 March 1994, it was recorded that the applicant had cramps in both legs at night. On 8 February 1996, the applicant’s lumbosacral strain was first recorded, the pain was recorded as persisting until 31 May 1996. On 25 June 1997, the applicant’s back pain commenced again. On 10 July 1997, the applicant reported that his back pain felt better after some rest, but was exacerbated when he returned to work. It was also noted on 15 August 1997, that the applicant’s back pain improved with hydrotherapy, this was further noted on 28 August 1997. On 11 September 1997, the applicant reported pain in the lumbar spine, and that hydrotherapy was not improving the pain. On 11 December 1997, the applicant reported that his back pain had improved. On 22 February 1999, the applicant reported a tension headache, due to being unhappy at work, and was diagnosed with work related anxiety on 3 May 1999. On 5 August 1999, the applicant reported pain in his back for 10 days. On 18 August 1999, the doctor opined that the applicant’s pain was aggravated by work. On 7 January 2000, the applicant reported a back strain. On 5 November 2004, the applicant again reported back pain.
Concord Repatriation General Hospital
On 22 September 1992, the applicant reported back pain. The report also stated that the applicant had a similar incident 2 years ago. The report labelled the pain as recurrent and constant lower back pain. This continued to occur on 24 September 1992, 28 September 1992 and 1 October 1992. As a result, on 2 October 1992, the applicant was referred for physiotherapy. The pain continued on 8 October 1992, 12 October 1992, 15 October 1992, 15 October 1992, 22 October 1992, 29 October 1992 and 3 November 1992, then the pain started to improve. There was recurrence of this pain on 17 November 1992, which improved on 23 November 1992.
RESPONDENT SUBMISSIONS
The respondent submits that the applicant ceased to suffer the effects of the lower back pain caused by the accepted injury by 29 September 2016. The applicant suffers from a pre-existing condition of lumbar spondylosis as early as 1992. The respondent submits that the pre-existing condition was exacerbated by events at work, but the symptoms of the exacerbations are not ongoing. The respondent also contends that some of the exacerbations have occurred outside of work. The respondent has not accepted liability for the pre-existing constitutional lumbar spondylosis. The respondent contends that the hydrotherapy, by 29 September 2016, was not ‘medical treatment’ ‘in relation to’ the earlier accepted injury.
The respondent submits that the applicant’s evidence is not reliable. The applicant did not disclose the pre-existing back condition to the respondent. The applicant has stated on a number of occasions that he had no back pain before the incident. Dr Ellis recorded that the applicant was previously injured in October 1994. Dr Bornstein stated that the applicant had had back pain prior to 1994. The respondent submits that upon cross-examination the applicant agreed to this medical history, the applicant refutes the respondent’s submissions in subsequent correspondence. The respondent relies on the summonsed material from Concord Hospital, stating that the applicant has had back pain since 1992. The applicant also denied any lower back pain prior to 1994 in cross-examination. The applicant conceded during cross-examination that he had had back pain prior to 1994. The applicant submits that under cross-examination, he did not concede to this, but was confirming his signature. The applicant however, later submitted that he did not recall the incident in Concord Hospital during 1992 or 1993. The respondent submits that the applicant on cross-examination admitted that he had had back pain prior to working at the agency, and that that back pain continued after the applicant was employed.
The respondent submits that the applicant ceased to suffer any effects of the lower back pain by at least 29 September 2016. In making this submission, the respondent relies on the medical evidence of Dr Kevat. The respondent submits that Dr Kevat’s medical evidence ought to be given more weight than the evidence of Dr Visvalingam, because he took into consideration the summons material from Concord Hospital, he is a specialist physician, he developed an independent medical report and he underwent cross examination.
The respondent submits that Dr Kevat has given evidence that the applicant has a pre-existing constitutional condition of lumbar spondylosis. The applicant experienced exacerbations of the pre-existing condition throughout his employment. Some of the exacerbations occurred outside of the applicant’s employment. The pre-existing condition is what is responsible for the applicant’s current back pain.
The respondent noted that the report of Dr Visvalingam dated 9 August 2017, is contrary to his earlier report dated 27 March 2003, which is arguably consistent with that of Dr Kevat. He agreed that the applicant has a pre-existing condition, and that the exacerbation was only temporary. The doctor also reported that the pain had ceased. The respondent submits that, due to the inconsistencies, the medical report dated 9 August 2017 can carry no weight.
The respondent refers to the decision of D’Amico and Comcare (Compensation) [2018] AATA 54 at [51]-[53], where Deputy President Sosso determined that more weight is given to specialist physicians’ evidence, who are experts in their field, rather than evidence from a general practitioner.
The applicant’s hydrotherapy was not referred by a physiotherapist. On 1 September 2016, Dr Visvalingam wrote a medical certificate, requiring the applicant to go to hydrotherapy at least three times a week. Originally Dr Visvalingam stated the reason why hydrotherapy was necessary was to prevent exacerbations, however, since the respondent no longer accepts liability, the he claims that hydrotherapy is to maintain muscle tone and strength.
The respondent submits that hydrotherapy is not medical treatment as defined under the SRC Act. The Tribunal must assess whether the treatment is ‘reasonable’ ‘in the circumstances’ pursuant to section 16 of the SRC Act. In Jorgensen and Commonwealth of Australia,[34] Justice Gray remarked that reasonableness should be viewed objectively. The subjective material should be related to the injury, not to personal circumstances.
[34] (1990) 23 ALD 321 at [12].
Justice Stone explained in ComcareAustralia v Rope[35] that the Tribunal should engage in a cost, benefit analysis. This test was further considered by Mansfield J in Comcare v Holt[36] “There may be circumstances where treatment is unreasonable because its anticipated therapeutic benefit does not justify the expense involved in the circumstances.” In Alamos and Comcare[37] Deputy President Constance set out a non-exhaustive list of factors for consideration:
·The benefit of the treatment to the injured worker;
·The long-term effect of the treatment;
·Whether the treatment is likely to cure the injury or significantly reduce its
effects;
·Whether the treatment maintains the status quo; and
·The cost of ongoing treatment.
[35] (2004) 135 FCR 443 at [17].
[36] (2007) 94 ALD 576 at [25].
[37] [2014] AATA 629.
In the matter of Blackwell and Comcare[38], Senior Member Tavoularis commented on the “notion of shifting reasonableness”, where treatment may be considered reasonable for the short term, but in the long term, the treatment is considered unreasonable.
[38] [2017] AATA 1357.
The Tribunal has determined, particularly in the matter of Evans and Comcare,[39] that the Clinical Framework is appropriate to consider when assessing reasonableness. This approach was followed in Bayani and Australian Postal Corporation,[40] Napier and Comcare,[41] Blackwell and Comcare,[42] and O’Day and Comcare.[43]
[39] [2016] AATA 827.
[40] (2015) 149 ALD 347 at [46].
[41] [2017] AATA 1452 at [17].
[42] [2017] AATA 1357 at [20].
[43] [2017] AATA 1328 at [42].
Dr Kevat is of the view that the applicant does not need to continue with hydrotherapy, and that hydrotherapy is only a short-medium term therapy. The respondent submits that this is relevant to the notion of shifting reasonableness. The applicant has attended self-directed hydrotherapy sessions for 8 years. The continuation of the hydrotherapy does not comply with the Clinical Framework. In relation to Principle One, there is no evidence of the treatment’s effectiveness or that the hydrotherapy is being adjusted to support the applicant’s condition. In relation to Principle Four, there is no evidence of SMART goals, where the treatment is being assessed and reassessed.
The respondent submits that if the Tribunal finds that the liability ceased by at least 29 September 2016, then the Tribunal does not need to consider the reasonableness of the treatment in relation to work.
CONSIDERATION
I decided that the hearing of this application had to be adjourned because material documents within the meaning of section 38AA of the Administrative Appeals Tribunal Act 1975 (Cth) were proposed to be used to cross-examine the applicant on the second day of the hearing. Those documents were related to the employment of the applicant by the Concord Hospital and were obtained by the respondent some time before the hearing and had yet to be filed before the Tribunal. Having regard to the decision of Justice Moshinsky in Tuimaseve v Minister for Immigration and Border Protection,[44] in which His Honour referred to the need to accord procedural fairness to an applicant, I considered that the appropriate and fair course of action was to adjourn the proceedings to enable the applicant to seek legal advice, possibly from Legal Aid.
[44] (2018) 74 AAR 192.
At the adjourned hearing of the application, the applicant was questioned about the summons material from Concord Hospital which contained records of the applicant having lower back pain since 1992. The applicant had asserted that he had no lower back pain before his employment by the Department of Defence in 1994. There has been some dispute as to whether in cross-examination the applicant had conceded that he had lower back pain prior to 1994. The applicant has submitted that under cross-examination he only conceded to having signed the Concord Hospital documents and has stated that he does not recall any incident in the Concord Hospital concerning lower back pain in 1992 or 1993.
I consider that the applicant has not been accurate in the completion of the claim form that he signed on 8 March 1996. In particular, the answer that he gave to Question 18(a) in the claim form was not correct. That question asked the applicant: “Have you ever had a similar injury or illness before, work related or otherwise (even if you think it is unrelated to this injury or illness)?” In his answer to that question the applicant gave the following answer: “Twisted lower back while getting out of car in Oct ‘94”. It is not plausible that the applicant could not remember his earlier back pain incident from the Concord Hospital some two years prior to the car incident of 1994. The applicant also did not disclose on the claim form another incident of back pain in that he experienced in 1995, the medical notes of that incident appeared to relate his back pain to gardening. It is clear from the report of Dr Bornstein that the applicant had back pain before 1994. Dr Ellis reported that the applicant was injured in October 1994.
I rely upon the medical report dated 13 July 2017 of Dr Kevat to conclude that the applicant has a constitutional lumbar spondylosis condition which was exacerbated by the employment of the applicant as well as events outside his employment.
I rely upon the evidence of Dr Kevat to conclude that the applicant ceased to suffer any effects of the lower back pain by at least 29 September 2016. I coming to this conclusion I rely upon the evidence of Dr Kevat. Dr Kevat had access to the summons material from Concord Hospital and was cross examined on his opinion. Dr Visvalingam in his report dated 9 August 2017 makes no reference to the summons material from Concord Hospital even though that summons material had earlier been provided to the applicant.
I do not give weight to the opinion of Dr Visvalingam who in his report of 9 June 2017 remarked that it is most likely that the work-related injury accelerated the degenerative changes in the spine because he gave no reasons given for his conclusion. This report of 9 June 2017 is inconsistent with his earlier report of 27 March 2003 in which Dr Visvalingam stated that the lumbar and disc conditions of the applicant were unrelated to his employment with the Department.[45]
[45] Exhibit A, T-Documents T30 p. 55.
Dr Kevat in his report of 13 July 2017 explained that the self-limited exacerbations of the applicant while he was employed in the Department of Defence were unlikely to have contributed in any significant degree to the progression of the lumbar spondylosis condition:
The original accepted condition of 1996 was an acute exacerbation of back pain which occurred as a result of lifting activity undertaken while employed by the Department of Defence. Several similar exacerbations occurred in ensuing years from similar precipitating mechanical circumstances. These exacerbations were self-limited, and are unlikely to have contributed in any significant degree to the progress of his lumbar spondylosis.
Whilst at the relevant time in 1996 the relevant test of causation was the “material contribution” test under the former s 4(1) of the Act, there is no evidence before me to enable me to conclude that the applicant’s employment in the Department of Defence contributed in any material degree at all to the progression of the lumbar spondylosis condition.
As a matter of completeness, I should refer to the 79 monthly sessions of hydrotherapy that were received by the applicant. I rely upon the report of Dr Kevat who had regard to the Clinical Framework in concluding that the applicant did not by 29 September 2016 continue to require such treatment. While Dr Visvalingam in his report dated 9 August 2017 has remarked that hydrotherapy is a recommended treatment, he does not provide any reasons why such treatment is necessary in the case of the applicant.
CONCLUSION
As I have determined that the applicant ceased to suffer the effects of the “lumbo-sacral strain (episode-only)” by at least 29 September 2016, there is no present liability of the respondent to pay compensation to the applicant in respect of medical expenses in relation to the condition under section 16 of the SRC Act. It follows that the respondent is not liable, since that date, to pay compensation to the applicant for “ongoing hydrotherapy/pool passes”.
DECISION
I affirm the decisions under review.
I certify that the preceding 131 (one hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
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Associate
Dated: 16 June 2020
Dates of Hearing: 28, 29 June 2018, 18 October 2018 Final Submissions Received: 22 November 2018 The Applicant: In person Solicitor for the Respondent: Mr Francisco Huezo, Lehman Snell Lawyers Advocate for the Respondent: Mr Matthew Hawker
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