Muir and Comcare (Compensation)
[2019] AATA 13
•9 January 2019
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
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.
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 Ruth Gondzioulis
13 September 2018
A2
Witness statement of Ms Kathleen Muir
Undated, filed 24 May 2018
A3
Summons issued to Dr Les Grujic and documents returned under summons
Various
R1
Report of Mr Harry Papagoras and briefing letter
R2
Curriculum vitae of Mr Harry Papagoras
R3
Rutledge Plaza Medical centre, clinical notes for Ms Kathleen Muir
Various
R4
Letters from A/Professor Kathleen Tymms Various R5 Summons issued to Woden Remedial Massage Therapy and documents returned under summons Various R6 Report of Mr Iain Kelman and briefing letter 5 April 2017 R7 Supplementary report of Mr Kelman and briefing letter 7 February 2018 R8 Letters from Comcare to Dr Bilkis Malek Various R9
Ms Muir and Mr Muir each gave evidence. Mr Iain Kelman, a consultant orthopaedic surgeon, also gave evidence, appearing by telephone.
ISSUES
The issues before the tribunal are
·whether the massage treatment provided to Ms Muir is medical treatment under the SRC Act;
·whether it was provided in relation to Ms Muir’s accepted injury; and
·whether that treatment was reasonable for Ms Muir to obtain in the circumstances.
LEGISLATIVE CONTEXT
Subsection 16(1) of the SRC Act provides as follows:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Subsection 4(1) contains a definition of “medical treatment”. It includes (relevantly) medical or surgical treatment by or under the supervision of, a legally qualified medical practitioner (paragraph (a)); or therapeutic treatment obtained at the direction of a legally qualified medical practitioner (paragraph (b)); or therapeutic treatment by (relevantly) a masseur registered under State or Territory law (paragraph (d)). Section 4(1) also defines “therapeutic treatment” to include treatment given for the purpose of alleviating an injury.
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.
EVIDENCE
Documentary 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.
Dr M Hislop, Ms Muir’s general practitioner at the time, continued to recommend that Ms Muir receive massage treatment on a biweekly basis[11], and Comcare continued to accept liability for that treatment.[12] Over this period Ms Muir began to experience arthritic degeneration in the joints of the left foot, namely the talonavicular and posterior subtalar joints. In 2004 she received steroid injections into these joints under ultrasound guidance for the relief of heel and mid foot pain.[13] Ms Muir continued to have massage and chiropractic treatment on the advice of her doctor and massage therapist, and Comcare continued to accept liability.[14] Over this period and in the years that followed, Comcare obtained medical reports from different practitioners, confirming that Ms Muir’s continuing symptoms all flowed from her initial injury in 1993.[15] Comcare continued to accept liability for medical treatment.[16]
[11] T28, T30, T31, T33.
[12] T29, T34, T36, T37, T38.
[13] T32, T35
[14] T39, T40, T41, T42, T43, T44, T45
[15] T46, T47, T48, T49, T54, T60.
[16] T50, T51, T52, T53, T55, T56, T57, T58, T59, T61, T62 .
Dr Hislop retired in 2014 and Dr B Malek became Ms Muir’s general practitioner. In 2016, for the purposes of assessing the future course of treatment, especially with regard to Ms Muir’s compensation claim, Dr Malek asked Dr Grujic to review Ms Muir once again.[17] His report[18], dated 21 April 2016, notes that Ms Muir’s treatment had been very successful; that, nevertheless, she now experienced some discomfort and pain; that there was osteoarthritis in the midfoot joints of the left foot; that massage and physiotherapy gave “enormous relief”; that fusion of the midfoot joints is likely to be necessary in the future; but that this should be delayed as long as possible through conservative treatment.
[17] T63.
[18] T64.
On 20 June 2016 Comcare determined that liability would no longer be accepted for massage therapy.[19] Following that determination Ms Muir provided reports from Dr Malek[20], from her massage therapist, Ms J Streeter[21], and the above report from Dr Grujic, all supporting the continued provision of massage therapy. Comcare treated the reports, and Ms Muir’s request that the initial determination be remade using the material now provided, as a request for reconsideration.[22] On 17 August 2016 a Comcare delegate affirmed the earlier decision to deny liability for massage therapy in a reconsideration determination.[23] It is that decision which is now under review in this tribunal.
[19] T65.
[20] T67.1.
[21] T66.
[22] T70.
[23] T71.
Two additional issues arise from the documentary record. First, it is apparent that part of the treatment Ms Muir received related to the problems that had arisen in her back and shoulder; in her view these problems had arisen as a result of changes in the use of her body because of the ankle injury. Comcare had never accepted liability for those injuries. Second, Ms Muir developed erosion of the oesophagus from non-steroidal anti-inflammatory drugs. When added to her existing problems with narcotic analgesia, the result is that Ms Muir’s pain relief options are now extremely limited.
The evidence of Ms Muir
Ms Muir recounted the series of events outlined above. She said that in about 2001 she developed oesophageal damage, which was identified as resulting from taking non-steroidal anti-inflammatory drugs (NSAIDs). As a result, she stopped taking drugs of that kind as well as the others to which she was allergic. During the fusion of her foot in 2001 a spinal block was used as anaesthetic. After that wore off she had very severe pain (rated as 8.5-9 on a 10-point scale). This lasted several days and then eased.
Dr Grujic had seen her after six months; he had said that she would probably need fusion of the foot bones at some stage. Sometimes this was needed early; more commonly at 10 years after ankle fusion. Ms Muir said that in her case she had gone 17 years without further surgery. Alternative therapies – physiotherapy and especially massage – as well as careful attention to her gait had kept her going as she was. She attempted to sit and walk in a correct fashion, and aimed to walk 5,000 to 8,000 steps each day. She discovered the benefits of massage through other techniques such as Pilates, as a way of keeping the foot in alignment and dealing with muscle spasms. She understood the benefits to include aligning the bones and ligaments of her foot; it also helped with the shoulder and back problems that arose from compensating for her injured foot.
Ms Muir said that she had osteoarthritis in her hands and lower back but not in her right foot, hip or knees, so far as she was aware. About 35 years ago she was diagnosed with systemic lupus erythematosus (SLE) an auto-immune disease. She said this does not affect her except when she has a flare-up – such flare-ups cause tiredness and lethargy and may lead to episodes of pleurisy from lung involvement. Ms Muir said that massage was not used as a treatment for SLE, which affected connective tissue.
Ms Muir said that she was a model claimant for Comcare. She always followed advice, undertook rehabilitation as planned, and was never an overclaimer; she did not claim for her walking sticks, her lift chair, her pharmaceuticals, or the special shoes she obtained from the UK, or for home help. She noted that no alternative treatment processes had ever been put forward by Comcare or any of the practitioners (such as Mr Kelman) to whom Comcare had referred her, up to the time of these proceedings. It had been suggested that she could undertake “self-massage”, which Ms Muir did not believe would be possible: she could barely put on a sock, so delivering massage to her left foot would not be possible.
Ms Muir’s witness statement[24] states that the choice for her is to maintain functionality through therapeutic massage or else to undergo further surgery without the benefit of pain relief. Ms Muir also referred to the development of “crystals” in her foot, which caused a certain “crunchy” sensation. Massage broke these crystals down so that they could be reabsorbed into the body.
[24] Ex A3.
In cross-examination Mr Ternes explored some uncertainty about the number of massages that Ms Muir has received, when these stopped, and who bore the costs at various points. The claims event synopsis report[25] maintained by Comcare shows the total costs of Ms Muir’s claim from 1993 to the cessation of massage in August 2016 was $165,313.12 plus an amount of $1,570.65 in rehabilitation costs. In this total, the amount for massage is $90,530.93. The detailed list of massage invoices[26] shows massages being paid for by Comcare from December 2000 until July 2016. In the last part of that period there are some massages for which Comcare paid (e.g. 30 May 2016 and 7 and 14 July 2016) and some marked “rejected” for which Ms Muir evidently paid (26 May, 9 June and 17 June 2016). An invoice list tendered by Ms Muir[27] appeared to show that she had paid for her own massages from 30 May 2016, continuing to have weekly massages at her own expense to the end of July 2016 and then having the occasional massage thereafter (e.g. on 28 August and 19 December 2016). Ms Muir said that she paid for a few – perhaps two or three – beyond the date of the invoice list, in 2017. It is notable too that the cost charged to Ms Muir for each massage ($162) was lower than the cost apparently charged to Comcare ($178.90 at the time massages stopped).
[25] ST1.
[26] ST2.
[27] Ex A2.
Mr Ternes queried how it was that massages on the same day could appear on both invoice lists and queried whether Ms Muir did in fact pay for her own massages. That point remains obscure – Ms Muir was adamant that she had paid herself – but little turns on this point for the critical questions I have to answer. I accept that massage makes up more than half of the cost of Ms Muir’s claim and was in 2016 the only significant ongoing cost to Comcare; I accept also that Ms Muir stopped taking massages after they were no longer reimbursed by Comcare. But otherwise the detail of how the massages were paid for sheds little light on the central question of the reasonableness of the massage.
Ms Muir said, in response to Mr Ternes’s questioning, that there was no doubt in her mind that the massage relieved her pain, aligned her joints and ligaments, freed up her foot for movement, helped her maintain her mental health and delayed the need for surgery. These she said were the views she had formed herself on the basis of experience, and possibly she derived them in part from advice from her massage therapists, rather than from her doctors. Further she also believed that massage assisted with breaking down scar tissue and the build-up of crystals in her joints; addressed her pelvic instability; and kept her lumbar spine aligned. She said that massage also loosened her Achilles tendon, which became tight and needed to be stretched. Mr Ternes said that expert medical evidence would suggest that most of these views were not medically plausible; that, for example, Mr Kelman would say that given her ankle fusion the Achilles tendon no longer had any function and so could not become tight; but Ms Muir stood by her views nonetheless, asserting, for example, that her Achilles tendon became inflamed and sore.
Ms Muir described that massage she receives as being strongly focused on her left foot and leg for about half of each session; the rest of the session is then given over to her shoulders and arms and to the muscles in the right leg and foot. The massage of the left foot involves working the joints, manipulation underneath and on top of the foot, and the use of the massage therapist’s thumbs on the foot muscles. The effect of the massage is to relieve symptoms for three to four days on average, with sometimes five to six days and sometimes only one to two days. After the massage, the normal stabbing pain and ache are usually relieved entirely.
Ms Muir said that she had not tried going without massage until this review process, and once the review process had begun she had not continued with massage in part because she expected the matter to be over and resolved a good deal faster than turned out to be the case. She noticed the difference; but she had a high pain tolerance, and was concerned about the expenditure, so she mostly chose not to get massage.
Without massage, Ms Muir said that her foot would become sore, with muscle spasms; she would put her foot up and would need to do this perhaps twice or three times a week. Sometimes she would have her foot up for a few hours; other times for an entire day. Part of successfully managing her foot was to ensure that it did not get too cold, and ensuring that when she arose each morning she gradually warmed it, through the use of heat socks (only recently discovered) and gradual and gentle movement at the start of the day.
Mr Ternes prompted Ms Muir to recount what alternative forms of therapy or treatment had been considered or trialled. In earlier stages these had included physiotherapy and chiropractic. Ms Muir acknowledged that she had had physiotherapy from 2002 to 2004 and had stopped chiropractic treatment later, in 2009. She had given up hydrotherapy because she had suffered an auto-immune reaction – a form of vasculitis - from exposure to the pool. She had an exercise bike at home, which she had used in the past, but it did nothing for her left foot, and she had not used it for perhaps two years. But she had found other ways to lose weight – she had lost 20 kg over three years and then a further six to seven kg during 2018. Ms Muir, in response to Mr Ternes, noted that her general practitioner supported her use of massage, and said that she had no reason to get another opinion as she had no reason to believe her doctors were wrong – their advice aligned with her experience.
Ms Muir described her need to balance maintaining the mobility of her foot with minimising wear and the advance of arthritis by avoiding overuse. The challenge was to keep the foot functional but not to precipitate or advance the time when surgery would become unavoidable. That was behind the attention she paid to the step-count she recorded each day; this was done on her own initiative, although her doctors were supportive. In re-examination Ms Muir explained that her care regime involved keeping the foot up and mostly warm, but understanding when she needed to ice it. She used natural oil for working into the skin. When in pain she relied on paracetamol. Even mild opiates, such as codeine and tramadol were unavailable to her, and NSAIDs were also ruled out because of the oesophageal injury.
Mr Ternes queried Ms Muir about her SLE and the possibility of massage being used in that context. Ms Muir said that she knew that massage was contraindicated during an SLE flare-up because even the prospect of it was so painful she would be unable to face it. The kind of pain in a flare-up was the same on each occasion but it was movable, in the sense that it moved from one part of the body to another. Rather than have a massage, she would go to bed and wait for the flare-up to subside. Mr Ternes noted that Ms Muir’s rheumatologist, Dr Kathleen Tymms, had diagnosed her with fibromyalgia.[28] Ms Muir acknowledged this diagnosis but said it had never been discussed with her.
[28] Ex R5.
The evidence of Mr Muir
Mr Muir provided a written statement[29] and gave evidence. He reiterated the course of Ms Muir’s accident, treatment, and subsequent progress, and identified his role as his wife’s carer following surgery, and to undertake additional duties in the house as Ms Muir became less able to take them on. He noted that since Ms Muir had stopped having massages he had seen that she was less active generally; she had given up gardening almost altogether; showed more overt pain behaviour; and had wound back her volunteering activity.
[29] Ex A1.
Under cross-examination, Mr Muir said that since she had stopped getting massages his wife’s activities in the garden had tailed off, so that now she had done no gardening for some time. He said that Ms Muir had sacrificed her gardening, which was a form of physical activity, but not something greatly valued in itself. He acknowledged that the improvement from each massage was temporary, lasting a few days. Often before her weekly massage she was stiff and in pain, and the massage gave a temporary improvement. He agreed that it would be possible for Ms Muir to apply a pharmaceutical product such as Voltaren gel to her foot, although her foot was sensitive at times.
Medical evidence
The medical evidence in the present matter comprises the documentary material relating to the injury and its treatment up to the time of the reviewable determination, including material obtained under summons from Ms Muir’s treating doctors and her massage therapist; expert reports obtained by Comcare for the hearing, in particular reports by Mr Iain Kelman, a consultant orthopaedic surgeon, and Mr Harry Papagoras, a physiotherapist; reports by Dr Kathleen Tymms, Ms Muir’s rheumatologist; and Mr Kelman’s oral evidence.
The history of Ms Muir’s injury and its treatment has been outlined above. The remainder of the medical evidence is outlined below.
Evidence of Dr Tymms
Four letters from Dr Tymms to Dr Malek are in evidence[30], dated 23 April 2014, 5 January 2015, 2 July 2015 and 22 March 2018. These letters report on Ms Muir’s conditions, in particular her auto-immune conditions (Sjogren’s syndrome, SLE, fibromyalgia) but also include a summary in each case of all her medical conditions and procedures, including a number that appear to have no direct bearing on the present matter. The letters also report on what appear to be more temporary episodes, eg a chest infection in 2010. The letters report to Dr Malek on such matters as blood pressure, vitamin D levels, and the general state of Ms Muir’s joints (including the appearance of osteoarthritis in her hands) and advise on Dr Tymms’s views regarding the proper medications to treat Ms Muir’s auto-immune conditions.
[30] Ex R5.
Evidence of Mr Papagoras
Mr Papagoras’s report is dated 8 January 2018.[31] The report takes the form of a completed ‘Clinical Panel Review’, a pro forma supplied by Comcare. The referral to Mr Papagoras asks him to respond to four questions, as follows:
1)Is the massage therapy recommended by Ms Kathleen Muir’s medical providers reasonable medical treatment when viewed against the Clinical Framework for the Delivery of Health Services (Clinical Framework)?
2)If not (and without reference to the clinical framework) is massage therapy reasonable medical treatment in Ms Muir’s particular circumstances? (On this point we refer to Ms Muir’s views and those of her treating doctors that massage treatment provides symptomatic relief and maintains her mobility and, in so doing, defers the need for further surgery). [original emphasis]
3)Would a pain management program be reasonable medical treatment in Ms Muir’s circumstances and, if so, what should it entail?
4)If your answer to question 3 is ‘yes’, would you envisage a pain management program as replacing massage therapy?
[31] Ex R2; Mr Papagoras’s curriculum vitae is at R3.
The report draws on many of the previous reports included in the T-documents, quoting critical passages from them. Under the heading ‘Treatment provider contact summary’ Mr Papagoras draws conclusions in answer to the four questions posed, which I have summarised as follows:
1)The treatment is not consistent with the elements of the Clinical Framework;
odespite treatment, no sustained improvement is resulting, as self-reported pain and disability measures remain high;
othe treatment is not consistent with a biopsychosocial approach, as “the provision of ongoing passive intervention does not adequately address the risk factors to recovery”, such as failure of treatment to provide improvement, poor coping strategies, and legal processes such as the current compensation dispute;
othe treatment does not empower Ms Muir to manage her condition without massage and undermines the possibility of self-management;
othere do not appear to be SMART goals[32] set or met;
othere is no evidence that massage helps manage persistent pain or delays the need for surgery in this kind of injury.
2)Dr Grujic’s support for massage in Ms Muir’s case appears to derive from her self-report, which is not an objective basis, and there is no evidence to support the idea that it helps delay the need for surgery.
3)Ms Muir reports increased pain and reduced function without massage and that suggests that she is not coping adequately and may have become dependent on massage. In those circumstances she should be assessed for a multidisciplinary pain management program.
4)The goal of such a program should be to reduce Ms Muir’s reliance on massage and develop self-management and coping. That should be a goal of treatment even if such a program is not undertaken.
[32] SMART goals are explained in the Clinical Framework to be goals that are “specific, measurable, achievable, relevant and timed”.
Mr Papagoras recommended denial of Comcare’s support for continued massage.
Evidence of Mr Kelman
Mr Kelman submitted two reports, the first dated 5 April 2017 and a supplementary report dated 7 February 2018. The tasking letter for the first report asked Dr Kelman to report on the issue before the tribunal, namely whether massage is a reasonable treatment for Ms Muir to obtain in light of her accepted injuries. It posed a series of questions relating to Ms Muir’s condition, the appropriate medical treatment for the accepted condition, whether current treatment is reasonable, and whether the treatment is in accordance with the elements of the Clinical Framework.
Mr Kelman recounted the initial ankle injury, and the treatment provided, including the arthrodesis in 2001. He noted that Ms Muir began massage after the arthrodesis for symptomatic relief. He also noted that the removal of movement at the ankle because of the arthrodesis results in more movement in the foot joints, notably the talonavicular and tarsal joints, with effects also at the subtalar. The greater movement leads to posttraumatic osteoarthrosis. Ms Muir has pain and stiffness in her foot joints, a feature of osteoarthrosis. Massage does not treat the condition therapeutically or affect the progress of the osteoarthrosis but it may give symptomatic relief.
Mr Kelman concluded that Ms Muir’s current condition arose out of her 1993 injury and that her current arthrosis of the foot joints is a consequence of the treatment of that injury.
Mr Kelman noted that Ms Muir requires some form of pain management. She finds massage the most effective form of treatment. It will not improve the condition from which she suffers or change its progress. Mr Kelman did not draw an explicit conclusion that the treatment is reasonable but that inference might readily be drawn from his report; he certainly failed to state that it was not reasonable.
The tasking letter from Comcare for the supplementary report seeks clarification of some of Mr Kelman’s statements in his earlier report and also asks him to address some specific issues raised by Ms Muir. Chief among the latter issues is Ms Muir’s assertion that small crystals form in her foot, that these crystals contribute to her pain and that massage and manipulation allow these crystals to be broken down and reabsorbed. Mr Kelman’s response to this was to state that there is no evidence of crystal arthropathy, such as gout or pseudo gout, in Ms Muir’s foot and that if there were, massage would be excruciatingly painful. Rather, there is crepitation within the foot joints arising from the osteoarthrosis, and massage provides temporary relief from pain and temporary improvement in range of motion. No crystals or osteophytes are reabsorbed as a result of massage. Mr Kelman also denied that there was any medical justification for believing that massage therapy could maintain or restore the alignment of joints, tendons or ligaments.
With regard to the reasonableness of massage as a medical treatment, Mr Kelman was both more definite and more critical in his assessment in the supplementary report. He said that Ms Muir has a subjective belief that massage is helpful to her, and she receives short-term symptomatic relief, but there is no therapeutic benefit in a more permanent sense and massage will not influence the progress or outcome of the underlying condition nor delay the need for further surgery. Two hours of massage weekly, if applied solely to the foot, is not reasonable treatment (from the drafting it appears that Mr Kelman was emphasising that the two-hour length was itself unreasonable). An alternative program could be assembled for Ms Muir comprising self-massage of the foot, use of properly designed orthotics, and weight reduction. Further surgery to the foot may be more cost-effective than massage and may result in a less painful foot.
In oral evidence Mr Kelman repeated much of the above, adding that the osteoarthrosis Ms Muir suffers is the result of wear to the cartilage, so that the nerve endings on the bone ends become exposed to pressure and are stimulated, producing a pain response. He said that although the period between ankle arthrodesis and the requirement for further surgery to the foot was highly variable, the 17 years in Ms Muir’s case is longer than expected; five to ten years is more usual. He noted that massage is not a usual treatment after ankle arthrodesis; and while the physiotherapy and chiropractic treatment that Ms Muir had earlier might have contributed to muscle tone and the strength of her left leg muscles, none of this treatment would have had an impact on the development of her foot osteoarthrosis.
Mr Kelman also explored the contribution of massage to other aspects of Ms Muir’s condition. He said that massage could make no difference to the Achilles tendon, as that tendon no longer had a function following the ankle fusion. He noted that concepts such as “pelvic instability” and problems of body alignment more generally are rarely used by orthopaedic specialists, but are commonly referred to by physiotherapists, chiropractors, massage therapists and the like. These concepts may in fact describe muscle weakness or imbalance; there is no evidence that any condition of this kind arises from ankle arthrodesis. He further stated that if Ms Muir was receiving 30 minutes to an hour of foot massage followed by a further hour to 90 minutes of massage to the right leg and foot, shoulders, arms and neck, only the time spent on the left foot should be regarded as being “in relation to” the accepted condition.
Under cross-examination, Mr Kelman clarified that the most likely surgical option to improve Ms Muir’s current position was to fuse the talonavicular and subtalar joints. The other joints of the foot do not undergo as much movement and usually do not need fusion. The fusion would normally be done as a single surgical intervention. The purpose would be to relieve the pain in the foot. There have been significant developments in opiates and other similar drugs, and in their management. There were therefore possibilities that Ms Muir would not have such profound reactions if she had further surgery.
Mr Kelman further reinforced his earlier opinion that the use of massage for treating the Achilles tendon was not medically reasonable, on the basis that there was insufficient movement by the Achilles of a fused ankle to lead to inflammation; and that Ms Muir’s problems in parts of her body other than the left foot did not arise from her ankle fusion. In Mr Kelman’s view, a more likely source for these broader problems was a more generalised osteoarthritis or arthrosis, exacerbated by excess weight. Mr Kelman explained the effect of massage on pain as deriving from the extensive stimulation of the affected part of the body so that the neurotransmitters were effectively used up. This had the result that those parts of the body drained of neurotransmitters could not continue to send pain signals to the brain, resulting in an alleviation of the pain for a period in consequence as new neurotransmitters were synthesised or transported to that part of the body. Mr Kelman conceded that one effect of alleviating pain in Ms Muir’s case was to allow her to tolerate her current condition for a longer period and thus delay the need for further surgery. But Mr Kelman said that this was not cost-effective in the sense that there was a significant level of ongoing pain and discomfort as well as a continuing expense; Ms Muir would be better off after surgery and the cost of surgery would be perhaps $10,000 to $15,000 in all. Ms Muir would be happier and the total cost would be lower.
Mr Kelman elaborated on his views of some of the alternatives available to Ms Muir, in particular the use of self-massage, or the use by someone else – friend or family - of similar techniques, perhaps taught by the massage therapist.
THE ARGUMENTS OF THE PARTIES
Ms Muir’s case is straightforward: she has an injury that derives from the incident in 1993 that left her with a fractured ankle; the osteoarthrosis in her left foot is a direct consequence of the surgery she had to address her ankle injury; her pain relief options are limited by her sensitivity to various drugs; therapeutic massage alleviates the pain and stiffness in her left foot, and delays the need for further surgery. In her circumstances massage is reasonable medical treatment in relation to her foot condition.
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]).
In Kennon v Spry (2008) 238 CLR 366 Kiefel J noted that “The expression ‘in relation to’ is of wide and general import and should not be read down in the absence of some compelling reason for doing so”[34] (at 440), further noting that the nexus required was dependent on statutory context. In O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 Dawson J commented (at 367):
The words ‘in relation to’, read out of context, are wide enough to cover every conceivable connection. But those words should not be read out of context… Where jurisdiction is dependent upon a relation with some matter or thing, something more than a coincidental or mere connection – something in the nature of a relevant relationship – is necessary.
In the same case Toohey and Gaudron JJ stated “Although ‘in relation to’ is an expression of broad import … it presupposes a direct connexion” (at 374) and McHugh J noted that “the prepositional phrase ‘in relation to’ is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters” (at 376).
[34] At 440 ([217]).
A number of tribunal cases deal with the phrase in the context of section 16 of the SRC Act. In Pratt and Comcare [2004] AATA 1281 the tribunal determined that a stent procedure was sufficiently “in relation to” the applicant’s compensable myocardial infarction, and not only in relation to the applicant’s underlying heart condition (at [25]):
The phrase ‘in relation to’ in section 16 needs to be looked at in the context of being part of beneficial legislation and within a section which provides generally for the payment of medical expenses under the compensation scheme set up by the legislation...we should interpret the phrase widely unless the context requires it to be read down. Comcare contends that it should be interpreted as meaning that the medical treatment for which compensation is payable should be restricted to treatment ‘of’ the injury. On this argument the stenting procedure was treatment of the underlying condition and not treatment of the injury. We do not accept this argument. Had Parliament intended to restrict compensation for treatment in this way it could simply have said so by using the far more restrictive preposition ‘of’ rather than ‘obtained in relation to’. [original emphasis]
In Howes v Comcare [2016] FCA 1521 Griffith J held that where there is conflicting medical evidence regarding the provision of treatment, it is for the tribunal to weigh the evidence, decide which evidence it prefers and draw conclusions accordingly.
In this instance it is plain that Ms Muir’s massages were obtained at least in part as a direct treatment for her left foot. For at least a half hour of the two hour massage, and for up to an hour, her foot was massaged and manipulated. Mr Ternes expressed scepticism regarding the possibility of massage continuing for an hour, but the evidence is uncontested and I have no basis to determine otherwise.
The other purpose of massage was to treat Ms Muir’s back, shoulders, neck and arms. Ms Muir put forward the view that her upper body was affected by the compensating efforts she was compelled to undertake because of her injured foot – that lifting herself out of chairs, changes in her gait and the like caused problems in the rest of her body that massage then alleviated. Although it seems intuitively that an injury in one part of the body might lead to such consequences, the only medical evidence I have is the opinion of Mr Kelman, who said that it was not likely that the problems had arisen from the foot, and that a more likely cause was a generalised underlying osteoarthritis. I accept Mr Ternes’s submission that in any case the question of the compensability of massage for other parts of Ms Muir’s body is not before me: no claim has been made for a secondary injury arising from the injured foot and no case has been put to me that such an injury was encompassed in the original claim.
Mr Kelman disagreed with the medical value of the massage and how it may have had effect, but he accepted that it alleviated the pain and stiffness of Ms Muir’s foot, or at least that she believed that it did. Dr Malek thought massage useful for Ms Muir’s foot, and Dr Grujic noted that it provided “enormous relief”, by implication, relief to Ms Muir’s foot, for which he was the treating doctor. It is my view that the connection between the massage and the foot condition is sufficiently close. The necessary connection required by the statute is made out and I find that the massage is provided “in relation to” Ms Muir’s accepted condition.
Is massage reasonable, in the circumstances?
A leading case where section 16 of the SRC Act has been considered is Jorgensen and Commonwealth of Australia [1990] AATA 129. In that case Gray J considered whether the provision of in vitro fertilisation to a woman with a compensable condition was reasonable medical treatment. His Honour’s reasoning includes the following comment:
In my view, the question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical treatment at all, would have been better for a person suffering from particular injury. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation.
A large number of cases from the tribunal address the reasonableness of different therapies, including passive therapies such as massage. In Comcare and Alamos [2014] AATA 629 the tribunal noted that the circumstances to be considered under section 16 included the benefit of the treatment, the long-term effect of the treatment, whether it was intended to be curative or maintain the status quo and its cost. In Comcare v Rope [2004] FCA 540 (Rope No 1) Stone J gave general endorsement to the proposition that assessing the reasonableness of medical treatment required some form of cost/benefit analysis.
It is clearly an advantage if a cost/benefit analysis can provide a clear outcome on whether a treatment modality is yielding a positive outcome. I note, however, that the endorsement of the concept by Stone J in Rope No 1 is put in rather qualified terms:
… the reference in s 16(1) to 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 in relation to PNI treatment. The Tribunal needed, among other things, to weigh the benefit of PNI treatment against the cost of obtaining it…
The use of the phrase “in this case” suggests that cost/benefit analysis is not necessarily universally applicable; it is also apparent from the reasoning in Rope No 1 and in the tribunal case from which the appeal was made (Rope and Comcare [2003] AATA 822) that the form of cost/benefit analysis commended by Stone J is limited to a qualitative weighing up of the costs of treatments against the benefits. A similar approach is implied in Comcare v Holt [2007] FCA 405.
In Rope and Comcare [2018] AATA 42 (Rope No 2) Deputy President Humphries of this tribunal put forward a summary of the case law dealing with manual therapies such as physiotherapy and massage, including with reference to the Clinical Framework (referred to below as “the Framework”). He noted that although the cases pull in different directions to some degree, a trend can be identified that:
… treatment is more likely to be considered reasonable where:
· its benefits are substantial and its cost is low;
· it is effective, i.e. achieves measurable benefits;
· it is active and promotes self-management of the compensable condition;
· it is consistent with the principles in the Framework; and
· it is of limited duration.
46. Conversely, treatment is less likely to be considered reasonable where:
· its benefits are insubstantial and its cost is high;
· it is passive and promotes dependence on itself; and
· it is ongoing and indeterminate.
The facts in this matter are especially plain. Ms Muir has significant pain and stiffness in her foot. Massage provides some alleviation of the pain and stiffness and restores a degree of functionality. Ms Muir believes that massage contributed in other ways to her foot function, by mobilising crystals in her joints and by aligning joints, tendons and ligaments. I accept the evidence of Dr Kelman - again uncontested - that this belief is medically unreasonable, and that the totality of the effect is explained by the existence of underlying posttraumatic osteoarthrosis of the foot joints and the simple alleviating effects of massage. I also accept that massage has only temporary effects, has no curative value, does not slow the progress of the underlying arthrosis, and is purely palliative. But I further accept that the alleviation in pain and stiffness has allowed Ms Muir to delay having further surgery by enabling her more readily to tolerate the current symptoms, and that her sensitivity to various opiates and other forms of analgesia makes surgery an unappealing prospect for her.
If that were the entire story – if no other choice were available - it might suggest that massage should be regarded as reasonable treatment. But against this scenario Comcare and Mr Kelman have in the course of the hearing put forward two alternatives: further surgery to fuse some of the foot joints; and self-treatment through massage by Ms Muir herself or family or friends, combined with weight loss and exercise. The former choice would involve a significant intervention, with a degree of risk and some real prospect of extreme pain for a period if no solution to Ms Muir’s sensitivity to the usual analgesic and opiate options can be found. The latter would involve an acceptance of continuing pain and stiffness but with reduced stress if Ms Muir can reduce her weight and maintain exercise, and a continuation of the levels of pain alleviation afforded by massage. The question of whether continued massage is reasonable treatment must be considered in the light of these alternatives.
In terms of a cost/benefit analysis, the amount that has been spent on massage over almost 15 years is considerable, and certainly outweighs every other form of intervention for which Comcare has borne the cost. Against that cost is the benefit to Ms Muir, which, while temporary, entirely palliative and only assessable on Ms Muir’s subjective account, appears nevertheless to be real and substantial in terms of the reliable alleviation of pain and stiffness. There is no precision available in this form of cost/benefit assessment, but it is not obvious to me that the conclusion is clearly that one outweighs the other.
I do not find any assistance from Dr Tymms’s reports: she is dealing with Ms Muir’s auto-immune conditions and her comments provide little insight into Ms Muir’s accepted condition. Mr Kelman did not see her reports as shedding any light on Ms Muir’s left foot condition. The one exception to that is that in her report of 23 April 2014[35] there is a reference to osteoarthritis in the small joints of the hands. This may suggest that, as hypothesised by Mr Kelman, Ms Muir’s problems with her back, shoulders, neck, hips and arms derive from a generalised osteoarthritis rather than being secondary results from compensation for her injured foot. For the reasons explained above, that has no bearing on the outcome of this matter.
[35] Ex R5.
I do not find Mr Papagoras’s evidence very helpful. Comcare referred Mr Papagoras to the Clinical Framework and also asked him to consider Ms Muir’s matter other than in the light of the Clinical Framework (see paragraph 33 above). It is not apparent to me why two separate considerations might be necessary: there is only one statutory test set by section 16. Nor is it obvious what the emphasis on Ms Muir’s particular circumstances in the second question is intended to achieve, as the test in section 16 applies to medical treatment “that it was reasonable for the employee to obtain in the circumstances”. I have previously raised a concern[36] that decision-makers might come to rely on the criteria in the Clinical Framework, so that those criteria replace or dislodge the statutory test in section 16. The phrasing of Comcare’s first question to Mr Papagoras might suggest that my concern is well founded.
[36] See Heales and Comcare [2018] AATA 3788 at [51]-[55].
Mr Papagoras suggests that the recurrence of pain when massage stops suggests that Ms Muir is not coping adequately and may have become dependent on massage. But it would appear to be equally consistent with a conclusion that the massage treatment was serving its purpose in keeping pain and stiffness at bay: but when it stopped, pain and stiffness returned. Indeed, Ms Muir’s case illustrates well the challenge in deciding whether or not a person has become dependent on treatment. A person faced with a condition which cannot resolve or be cured may arrive at a treatment regime which keeps the symptoms at bay: when is it right to regard such a person as dependent on that treatment regime? If it is the treatment regime that maintains functionality, that necessarily implies that stopping treatment is likely to lead to a recurrence of symptoms and a loss of function. If that implies dependence, it would seem that dependence is not a form of illness behaviour and does not have a bearing, of itself, on the question of whether the treatment regime is reasonable under section 16 of the SRC Act. This is implicitly recognised in the Clinical Framework itself:[37]
Not all goals have to be related to return to work. Return to work may not be a realistic goal or there may be insurmountable barriers to return to work. In these circumstances treatment is clinically justified when it promotes independence, improves function and participation, or demonstrably prevents the person from significantly deteriorating from their current level of function.
[37] Clinical Framework, p 14.
Contrary to the view taken by Mr Papagoras, I believe that Ms Muir has taken an active and largely successful part in managing her condition. She has purchased equipment that eases the demands of the condition, such as her chair; she exercises and has undertaken a weight loss program, although there is plainly a case for both to go further than they have; and she has identified a single form of treatment that eases her symptoms.
In terms of the criteria tabulated by DP Humphries, it is plain that Ms Muir’s massage regime is not of the kind that is readily identified as reasonable: it is of indefinite duration, has no objectively measurable goals or long-term benefits, and the cost is not insubstantial. Ms Muir has identified some cases where massage has been found to be a reasonable treatment, in circumstances closely similar to her own: Hawker and Comcare [2016] AATA 1008 and Anand and Comcare [2016] AATA 766 are cases where massage was found to be a reasonable form of treatment for a person with an incurable physical injury where there was clear evidence of its effectiveness. Mr Ternes for Comcare pointed to Oliver and Comcare [2017] AATA 252, where physiotherapy – a passive treatment like massage - was found not to be a reasonable treatment despite its alleged effectiveness. But each of these cases, and indeed each of a plethora of cases, extending well beyond those cited here, turns on its own facts, and on the particular circumstances of the respondent. None establishes a principle that can then be applied to another case to determine its outcome. The cases that were assembled by DP Humphries in Rope No 2 illustrate this point: the conclusions in that case are a statistical reflection of what was decided in the cases surveyed, and the matters identified are simply a guide to the kinds of issues a decision-maker might take into account when considering the particular circumstances of an individual case.
As I noted earlier, if no alternative were available, I might regard the massage program as reasonable. But an alternative is in fact available, and it would provide a cheaper and, if Mr Kelman’s evidence is accepted, a medically preferable outcome. It is now more than 17 years since Ms Muir had arthrodesis of her ankle; in both that case and in her previous surgery the outcome, from the point of view of her ankle, was excellent. There is no reason (apart perhaps from advancing age) to think that further surgery would not be equally successful. Ms Muir is reluctant to undertake further surgery because of her intolerance of the opiates used. But Mr Kelman says that there are new drugs available for managing post-surgical pain; Ms Muir needs to be tested for her tolerance to them. I am encouraged then, to regard surgery as the leading alternative for three reasons: first, the medical evidence suggests that at some stage surgery will become inevitable; second, Ms Muir’s prior surgeries have been very successful; and third, Mr Kelman in particular believes that surgery will effectively resolve Ms Muir’s ongoing pain, much more successfully than massage.
The countervailing considerations are first the possibility that Ms Muir will once again pass through a short-lived but intensely painful recovery period; and second, comments by Dr Malek and Dr Grujic suggest that surgery is best deferred as long as possible. Dr Malek suggests that further fusion would worsen Ms Muir’s limp and put stress on her hips, knees, right foot and back.[38] Dr Grujic noted in a post-operative report[39] following the arthrodesis that the excellent range of motion at the transverse tarsal and midtarsal joints would compensate for the arthrodesis, implying that the capacity of those joints, which would to some extent be lost in further arthrodesis of the foot joints, was of some importance. Many years later, in a review of Ms Muir’s foot and ankle[40] he noted that further arthrodesis of the foot joints was best delayed for as long as possible. The implication is that there is some disadvantage to further arthrodesis.
[38] T69.1, folio 143.
[39] T22.
[40] T64.
Those countervailing considerations, however, relate to when rather than whether further arthrodesis should be undertaken, as the medical opinion is clearly that it will be necessary at some point. On the model pursued to this point, the cost of further postponement will fall to Comcare – and it is not a one-off cost, but a continuing and indefinite cost.
If Ms Muir is unwilling to undertake surgery she still has self-massage or massage by an unpaid family member or friend, possibly instructed by her massage therapist, along with exercise, weight loss and analgesia such as paracetamol. Ms Muir did not believe that self-massage is an option – she said that cannot easily put a sock on her foot, and self-massage is beyond her capabilities. Nevertheless, if her aversion to surgery were sufficiently strong the option is available. And Ms Muir can extend that option indefinitely if she is willing to bear the cost of continuing professional massage herself.
Taking all of the above into consideration, my conclusion is that in all the circumstances surgery is now the preferred option. I cannot think that it is reasonable for Ms Muir to keep up two-hour weekly massages indefinitely when the option of a single surgical intervention – even with its limitations and the risk of an adverse drug reaction – is available.
Accordingly, I affirm the decision under review.
I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman.
……………………………………………………
Associate
Dated: 09 January 2019
Date of hearing: 10-11 October 2018
Advocate for the Applicant: Mr Mark Muir
Applicant: In Person
Counsel for the Respondent: Mr Ray Ternes
Solicitor for the Respondent: Ms Elizabeth West, Comcare Legal
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