Muir and Comcare (Compensation)

Case [2019] AATA 13

Muir and Comcare (Compensation) [2019] AATA 13 (9 January 2019)

Division:GENERAL DIVISION 

File Number(s):      2016/5400

Re:Kathleen Muir

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mark Hyman, Member

Date:09 January 2019

Place:Canberra

The decision under review is affirmed

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

Mark Hyman, Member

Catchwords

COMPENSATION – osteoarthrosis of the foot joints following ankle arthrodesis – whether massage is reasonable medical treatment – whether massage delivered in relation to the compensable condition – whether reasonable in the circumstances – pain relief – availability of alternatives – where applicant sensitive or allergic to opiates used in surgery – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975, ss 37, 38AA

Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 16

Cases

Anand and Comcare [2016] AATA 766

Comcare and Alamos [2014] AATA 629

Bashar v Comcare [2002] FCA 837

Comcare v Holt [2007] FCA 405

Comcare v Rope [2004] FCA 540

Hawker and Comcare [2016] AATA 1008

Heales and Comcare [2018] AATA 3788

Howes v Comcare [2016] FCA 1521

Jorgensen and Commonwealth of Australia [1990] AATA 129

Kennon v Spry (2008) 238 CLR 366

Lonsdale and Comcare [2004] AATA 555

O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356

Oliver and Comcare [2017] AATA 252

Rope and Comcare [2003] AATA 822

Pratt and Comcare [2004] AATA 1281

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

Rope and Comcare [2018] AATA 42

Secondary Materials

Clinical Framework for the Delivery of Health Services, Transport Accident Commission and Worksafe Victoria

REASONS FOR DECISION

Mark Hyman, Member

09 January 2019

  1. This decision is about whether the applicant, Ms Kathleen Muir, should continue to receive therapeutic massage as medical treatment paid for by the respondent, Comcare, for her compensable condition. Ms Muir injured her left ankle in a fall in 1993, and Comcare accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). She has subsequently undergone two surgical procedures for the ankle, but continues to have significant pain in her foot. She has received massage of her foot and other parts of her body since 2002. On 20 June 2016 Comcare decided that it would no longer pay for the massage treatments and affirmed that decision on reconsideration on 17 August 2016. Ms Muir applied to the tribunal for review of the reconsideration determination on 21 October 2016.

  2. The tribunal held a hearing on 10 and 11 October 2018. Ms Muir appeared in person, with her partner Mr Mark Muir, who acted as her representative for much of the hearing. Comcare was represented by Mr Ray Ternes of Counsel, briefed by Ms Elizabeth West of Comcare. The tribunal had before it documents (the “T-documents” and supplementary T-documents) submitted by Comcare under sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (the AAT Act); and additional documents tendered at the hearing as set out below.

Document

Date

Exhibit number

Witness statement of Mr Mark Muir

Undated, filed 5 October 2018

A1

Correspondence of Ms…

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AGLC
Muir and Comcare (Compensation) [2019] AATA 13
Case
[2019] AATA 13
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Muir against a decision by Comcare regarding the provision of massage as reasonable medical treatment. Ms Muir suffered a work-related ankle injury in 1993, which led to subsequent surgeries, including an ankle fusion in 2001. She continued to experience pain and mobility limitations as a result of the injury. Comcare had accepted liability for the injury and had previously covered physiotherapy, chiropractic treatment, and massage.

The primary legal issues before the court were whether the massage treatment Ms Muir sought was provided "in relation to" her compensable injury, and if so, whether it constituted "reasonable medical treatment" under the relevant legislation. Comcare argued that the massage was not sufficiently connected to the compensable injury, as it was largely for other conditions, and that even if it was related, it was not reasonable due to a lack of lasting improvement, cost, indeterminate duration, and the availability of cheaper, more effective alternative therapies.

The court found that the massage services obtained by Ms Muir did constitute "medical treatment" for the purposes of the SRC Act, as it was therapeutic treatment aimed at alleviating her injury. The court also considered the phrase "in relation to" to be broad, requiring a connection or association that is relevant and not accidental or too remote. Applying this broad interpretation, the court determined that the massage was provided in relation to Ms Muir's compensable injury, acknowledging that the injury was the source of her ongoing pain and stiffness. The court noted that Ms Muir's sensitivity to narcotics, which complicated her surgical procedures, was a central factor in her treatment choices and her preference for less invasive therapies like massage.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In section 16 of the SRC Act referred to above, the word “injury” is used to mean an injury for which the necessary connection with employment has been demonstrated under sections 5A and 5B; that is, “injury” in the passage from section 16 quoted above means an injury of the kind that makes it compensable under the SRC Act. It is not at issue in this matter that Ms Muir suffered an injury of this kind in 1993; that Comcare accepted liability under the SRC Act for the injury; that Ms Muir underwent a series of operations following the injury, including fusion of the bones in her ankle; and that she continues to suffer pain and limitations of her mobility as a result of the injury. The detail is explored below in setting out the relevant evidence.EVIDENCEDocumentary history Ms Muir’s injury dates from 25 years ago. The early part of her history as recounted here is not controversial, and is drawn from her evidence at the hearing and the documentary evidence. It is provided to supply context for what follows. Ms Muir injured her ankle at work on 30 November 1993.[1] She slipped and fell, sustaining what is termed a “Pott’s fracture”[2], a serious form of ankle fracture normally associated with motor vehicle accidents. The fracture was treated with plates and screws[3], but Ms Muir’s recovery was complicated by infection. After two weeks in hospital she was discharged. She undertook physiotherapy. The plates and screws were removed in 1995.[4][1] T3, T5.[2] T6, T7.[3] T4.[4] T8. A complication during the sustaining of the injury and the immediate process of recovery was Ms Muir’s sensitivity to narcotics, including those used in connection with surgical and related procedures, such as pethidine, morphine and tramadol. These cause her nausea or other side effects. As a result, the procedures she underwent when she injured her ankle were in some cases done without pain relief, causing pain sufficiently intense that she blacked out, according to both Ms Muir and her husband. This sensitivity or allergy appears to be a central factor in Ms Muir’s attitude to further invasive procedures and to the treatment choices she has made and continues to make. The initial treatment of the injured ankle, once the infection was dealt with, proved very successful, and Ms Muir was able to resume her usual activities and normal use of her left leg and foot. But the next few years saw the onset of pain and swelling, worsening with time. Ms Muir developed osteoarthritis in her left ankle as a result of the fracture; this was diagnosed in 1997.[5] In 2001 Ms Muir’s arthritis had worsened and her doctors considered the options of ankle replacement or resurfacing (arthroplasty) and ankle fusion (arthrodesis), recommending the latter.[6] Ms Muir proceeded to have ankle fusion[7]; Comcare bore the costs.[8] The surgery was successful, and at March 2002, five months after surgery, her surgeon, Dr L Grujic, was very pleased with her recovery, recording that she was walking almost normally and had very little if any pain.[9] As follow up, Comcare accepted liability for physiotherapy, chiropractic treatment, and massage up to December 2002, later extended to March 2003.[10][5] T8.[6] T11, T12, T13.[7] T18.[8] T16.[9] T24.[10]T26, T27.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Comcare’s case is that although massage in this case is medical treatment, it is not delivered “in relation to” Ms Muir’s compensable injury, in that the bulk of the massage is for other conditions – her back, shoulders, neck, arms and so on. And even if it is delivered in relation to her compensable condition, it is not “reasonable medical treatment” because there is no lasting improvement in her condition, it is expensive, it does not deliver against measurable goals, it is of indeterminate duration and, in particular, there are alternative forms of therapy available that are likely to be better and would certainly be cheaper. Massage is a passive treatment on which Ms Muir has become dependent, as illustrated by her lack of awareness of critical issues such as neuropathic pain (implying that she is not keeping informed about her own health) and by her failure to empower herself to manage her injury.CONSIDERATION There is no argument that the injury sustained by Ms Muir is the source of her current pain and stiffness in her foot. This was an injury under the SRC Act with continuing consequences to the present day. So much is common ground between the parties, and I so find. Is massage medical treatment? It is common ground that the massage obtained by Ms Muir is “medical treatment” for the purposes of section 16 of the SRC Act. That flows in any case from the definitions in section 4 of the SRC Act, where “medical treatment” is defined to include therapeutic treatment obtained at the direction of a legally qualified medical practitioner, or therapeutic treatment by or under the supervision of a registered masseur; and “therapeutic treatment” is in turn defined to include treatment given to alleviate an injury. Successive cases have accepted massage as medical treatment where provided as a palliative for the relief of pain or for prevention of a condition worsening: see for example Bashar v Comcare [2002] FCA 837; Lonsdale and Comcare [2004] AATA 555. I find that the massage services obtained by Ms Muir constitute medical treatment under section 16 of the SRC Act.Was the massage provided “in relation to” the accepted injury? The phrase “in relation to” appears in a wide variety of statutory contexts. The approach of the courts, in general terms, has been to recognise that the phrase is a broad one with a general application that can cover a multitude of different kinds and distances of connection. In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 the plurality (McHugh, Gummow, Kirby and Hayne JJ) considered the meaning of the phrase “relate to” in the context of standards for broadcasting Australian content. They held that[33]:The words "relate to" are "extremely wide". They require the existence of a connection or association between the content of the Standard and the Australian content of programs. What constitutes a sufficient connection or association to form the required relationship is a matter for judgment depending on the facts of the case. No doubt the association or connection must be a relevant one in the sense that it cannot be accidental or so remote that the Standard has no real effect or bearing on the Australian content of programs. But, without attempting to provide an exhaustive definition, once the Standard appears to prohibit, regulate, promote or protect the Australian content of television broadcasts the required relationship will exist. Furthermore, the fact that the Standard also deals with matters other than the Australian content of programs will not necessarily negate the existence of a relevant relationship. [citations omitted][33] At 387 ([87]).