Napier and Comcare (Compensation)

[2017] AATA 1452

Napier and Comcare (Compensation) [2017] AATA 1452 (13 September 2017)

Division:GENERAL DIVISION

File Numbers:         2015/4836 & 2016/4080

Re:Susan Napier

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:13 September 2017

Place:Brisbane

The decisions under review are affirmed.

.................[sgd].................................................

Senior Member T. Tavoularis

CATCHWORDS

COMPENSATION – medical treatment – therapeutic treatments – previously accepted injuries – where Applicant suffers from a number of accepted injuries – where Applicant has received treatments for long period of time – whether treatments were “therapeutic” – whether treatments were reasonable in the circumstances – whether Applicant still suffered from injury – whether present injury work-related – whether Comcare liable for medical treatments – whether Comcare liable for incapacity for work – whether Comcare liable for household assistance – treatments not reasonable in the circumstances – present injury not work-related – decisions under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, , 5A, 14, 16, 19, 29, 64

CASES

Alamos and Comcare

[2014] AATA 629

Chowdhary and Comcare

[1998] AATA 448
Comcare v Holt [2007] FCA 405

Durham and Comcare

[2014] AATA 753

Griffiths and Telstra Corp Ltd [2013] AATA 695
Re Jorgensen and Commonwealth

(1990) 23 ALD 321

Popovic and Comcare

[2000] AATA 264

SECONDARY MATERIALS

Clinical Framework for the Delivery of Health Services

REASONS FOR DECISION

Senior Member T. Tavoularis

13 September 2017

INTRODUCTION

1. Ms Susan Napier (“the Applicant”) has suffered a number of injuries for which she has claimed compensation from Comcare under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). Comcare has accepted liability for the following of the Applicant’s injuries:

   (a)Aggravation of displacement of cervical invertebral disc;

   (b)Injury to cervical nerve root (left);

   (c)Rotator cuff syndrome of shoulder (right);

   (d)Major depressive disorder, recurrent episode; and

   (e)Bruxism and dental caries.[1]

   [1] Exhibit 3, Statement of Ms Susan Napier; Exhibit 10, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), [3.1].

2. The Applicant has claimed compensation under s 16 of the Act for various of her injuries since October 2003. Over this time, she has, inter alia, successfully claimed in excess of 840 physiotherapy sessions.[2]

   [2] Exhibit 10, Respondent’s SFIC, Annexure A.

3. In a determination dated 10 July 2015, Comcare found it was liable to compensate the Applicant for physiotherapy. However, it found that the physiotherapy should only be on a decreasing basis until 4 November 2015, after which its liability to pay for the Applicant’s physiotherapy would cease.[3]

   [3] Exhibit 1, T Documents, PT10, pp 51-52.

4. In a determination dated 15 July 2015, Comcare found it was not liable under ss 16, 19 and 29 of the Act to pay compensation to the Applicant for medical treatment, incapacity for work, and household assistance resulting from the Applicant’s right rotator cuff syndrome.[4] It appears that liability was denied on the grounds that the injury the Applicant suffers in her right shoulder as at that date was not materially contributed to by her employment.[5]

   [4] Ibid, PT 11, pp 53-54.

   [5] Ibid, p 54.

5. These two determinations were upheld in a reviewable decision dated 8 September 2015.[6] The Applicant now seeks review of this reviewable decision in Tribunal claim number 2015/4836.[7]

   [6] Ibid, PT 19, pp 85-89.

   [7] Ibid, PT 2, pp 5-12.

6. In a determination dated 22 June 2016, Comcare found the Applicant had no entitlement to compensation for acupuncture and remedial massage for her intervertebral disc and cervical nerve root (left) conditions.[8]

   [8] Ibid, T 10, pp 30-31.

7. This determination was affirmed in a reviewable decision dated 3 August 2016.[9] The Applicant now seeks review of this reviewable decision in Tribunal claim number 2016/4080.

   [9] Ibid, T 12, pp 36-40.

   ISSUES

8. In light of the above, the Tribunal must determine the following issues:

   (a)Whether Comcare is liable under s 16 of the Act to compensate the Applicant for:

   (i)her claimed physiotherapy;

   (ii)her claimed acupuncture; or

   (iii)her claimed remedial massage; and

   (b)In relation to the Applicant’s claimed right rotator cuff syndrome, whether:

   (i)The Applicant continues to suffer from that condition; and

   (ii)This condition continues to be materially contributed to by the Applicant’s former employment; and

   (c)If so, whether the Applicant’s claimed right rotator cuff syndrome gives rise to:

   (i)The need for medical treatment pursuant to s 16 of the Act;

   (ii)An incapacity for work pursuant to s 19 of the Act; or

   (iii)The need for household assistance pursuant to s 29 of the Act.

   ISSUE A: LIABILITY UNDER SECTION 16 OF THE ACT

9. Before assessing Comcare’s liability to the Applicant to compensate her under s 16 of the Act, it is important to ascertain the scope of Comcare’s liability under that provision.

   The Legislative Framework

10. Comcare’s liability to compensate the Applicant for any of her treatments is determined in accordance with s 16(1) of the Act, which reads:

    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.

11. Section 4 of the Act, in turn, defines “medical treatment” as:

    …

    (a)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or

    …

    (d)therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or

    …

    (i)any other form of treatment that is prescribed for the purposes of this definition.

12. “Therapeutic treatment”, meanwhile, “includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury”.

13. In considering these definitions, it becomes apparent that s 16 of the Act imposes a test that has both subjective and objective elements: the Tribunal must determine whether the treatment is objectively reasonable given the subjective circumstances of an applicant’s injury. I note that this subjective element is restricted to the state of the Applicant’s injury.[10]

    [10] Re Jorgensen and Commonwealth (1990) 23 ALD 321, 325 (Gray J).

14. Due to the very nature of the test, the list of factors the Tribunal may take into account in making this assessment varies. However, in Alamos and Comcare,[11] Deputy President Constance considered the following factors as a helpful, non-exhaustive list:

    ·the benefit of the treatment to the injured worker;

    ·the long-term effects of the treatment;

    ·whether the treatment is likely to cure the injury or significantly reduce its effects;

    ·whether the treatment maintains the status quo;

    ·the cost of ongoing treatment.[12]

    [11] [2014] AATA 629.

    [12] Alamos and Comcare [2014] AATA 629, [24] (DP Constance).

15. In a similar vein, Mansfield J in Comcare v Holt gave examples of some circumstances where the treatment would be unreasonable, which included:[13]

    ·“where treatment is unreasonable because its anticipated therapeutic benefit does not justify the expense involved in the circumstances”;

    · “where proposed treatment, although of therapeutic benefit, is unreasonable having regard to the extent of the anticipated benefit of the cost involved, even if no similar treatment had previously been undertaken”; and

    ·“where treatment like the proposed treatment which in the past has had some therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of past experience”.

    [13] Comcare v Holt [2007] FCA 405, [25]-[26].

16. This long-term perspective is particularly important when one considers the potential long-term dependency of applicants upon treatments that were only ever meant to be temporary, as the Tribunal noted in Popovic and Comcare.[14] Indeed,

    “While provision of temporary relief from pain through physiotherapy will in many circumstances qualify as medical treatment which it is reasonable for an employee to obtain, there will in some cases come a point where it is no longer reasonable unless it is part of a plan for permanent improvement in the health of the employee”.[15]

    [14] [2000] AATA 264, [28]-[29].

    [15] Chowdhary and Comcare [1998] AATA 448, [53].

17. In making these assessments, it is often of great assistance to the Tribunal to make reference to the Clinical Framework for the Delivery of Health Services (“the Clinical Framework”).[16] Although this document was neither compiled by the Commonwealth Government, nor representative of Commonwealth policy, it provides useful guiding principles for the delivery of health services. I note that the Respondent referenced this in its Statement of Facts, Issues and Contentions (“SFIC”), as did Dr Philip Vecchio in his final report.[17]

    [16] See e.g. Alamos and Comcare [2014] AATA 629, [32]-[33]; and Durham and Comcare [2014] AATA 753 (SM Ettinger), [56]-[58].

    [17] Exhibit 2, Respondent’s SFIC, [4.7]-[4.10]; Exhibit 12, Dr Vecchio’s Report of 30 November 2016.

18. The Clinical Framework lists the guiding principles as:

    ·Measure and demonstrate the effectiveness of treatment

    ·Adopt a biopsychosocial approach

    ·Empower the injured person to manage their injury

    ·Implement goals focused on optimising function, participation and return to work

    ·Base treatments on the best available research evidence.

19. Particularly relevant in considerations such as this is point 3, “Empower the injured person to manage their injury”. The Clinical Framework later elaborates on this point:

    The key measure of treatment effectiveness is the ability of the injured person to manage their condition as independently as possible and participate in activities at home, in the community and at work. Independence does not mean being symptom-free, but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependency on treatment, which reinforces illness behaviour and can lead to persistent pain or long-term disability.

    The Applicant’s Claimed Physiotherapy

20. I have little doubt that the Applicant’s physiotherapy fits the definition of “medical treatment” for the purposes of s 16 of the Act. The question for the Tribunal is whether this form of treatment is reasonable in the circumstances of the Applicant’s injuries. To answer this, I must weigh the effectiveness of the treatment against its cost and its ability to empower the Applicant to manage her injuries.

21. Since the time of her injury, it is clear the Applicant has been a prolific user of physiotherapy services. Indeed, she has received some 840 services between the time of her injury and March 2015.[18] However, the Applicant’s pattern of use has not been as one would expect. Rather than the rate of attendance decreasing over the course of her treatment, it appears the Applicant has grown increasingly reliant upon physiotherapy, receiving treatment some 1-2 times per week from at least December 2012.[19] There is no evidence before me indicating that this increase in physiotherapy arose due to any exacerbation of the Applicant’s injuries.

    [18] Exhibit 13, Report of Mr Papagoras, p 3; Exhibit 10, Respondent’s SFIC, Annexure A.

    [19] Exhibit 10, Respondent’s SFIC, Annexure A.

22. Crucially, it has broadly been accepted that the Applicant’s physiotherapy does not serve the purpose of actively improving her condition. Rather, as noted by Dr Vecchio, “Ms Napier’s condition has achieved maximum medical improvement”.[20] Thus, Ms Lynne Arrow, a physiotherapist, concluded that the Applicant is in a “maintenance phase”;[21] at this stage, her treatment should be used “in helping control Sue’s pain and assist[ing] in… prevent[ing] further dysfunction.”[22]

    [20] Exhibit 12, Dr Vecchio’s Report of 30 November 2016, p 3.

    [21] Exhibit 18, Ms Lynne Arrow’s Report.

    [22] Exhibit 14, Mr Joshua Lynam’s Report dated 9 December 2015.

23. The ineffectiveness of the Applicant’s current treatment in terms of actively improving her condition is illustrated by the static nature of her Neck Disability Index scores, as assessed by Strathpine Physiotherapy. These scores have remained more or less static from the period of October 2009 to May 2014.[23] Mr Papagoras, a physiotherapist, considered any change to have been “insignificant”.[24] Both Mr Dean Sullivan, a physiotherapist from Strathpine Physiotherapy,[25] and Ms Arrow indicated in 2011 that on the basis of the scores that were then available, the Applicant was in essentially a “maintenance” phase of treatment, as opposed to a rehabilitation one.[26] On the evidence before me, it is clear that any physiotherapy the Applicant obtains can only serve the purposes of potentially reducing the deterioration of her condition, reducing her pain, and empowering her to self-manage her injuries.

    [23] See e.g. Exhibit 17, Report of Mr Dean Sullivan dated 26 September 2011, [3]; Exhibit 13, Report of Mr Papagoras, p 9.

    [24] Exhibit 13, Report of Mr Papagoras, p 9.

    [25] Exhibit 17, Report of Mr Sullivan dated 26 September 2011.

    [26] Ibid, [4]-[5]; Exhibit 18, Ms Lynne Arrow’s Report, [4].

24. As it appears the Applicant’s condition has not deteriorated in the six years between 2009 and 2015, I consider that physiotherapy does have some benefit for her, insofar as it has prevented a deterioration of her condition. It would be speculation, however, to try and determine how much deterioration has been prevented from her physiotherapy. On the other hand, I also find that the Applicant’s condition has not improved due to her physiotherapy.

25. Dr Vecchio in his November 2016 report described the Applicant’s physiotherapy management plan as “open-ended and recurrent”, and described the treatments as “passive, prone to therapist dependency and… inconsistent with the 5 Principles…”, particularly due to their focus on treatment by a physiotherapist, rather than self-management.[27] I am inclined to agree.

    [27] Exhibit 12, Dr Vecchio’s Report of 30 November 2016, p 7.

26. Mr Lynam in his report dated 11 April 2016 indicated that he had set treatment goals for the Applicant that “are aimed at improving function and promoting independence and where this is not possible, preventing regression or further deterioration of the current level of function”.[28] Although Mr Lynam listed promoting independence as an aim of the Applicant’s physiotherapy, he also said it should be aimed at improving her function, even though there had, by that stage, been no functional improvement in seven years. That it should still be included as a goal of treatment implies another open-ended search of a treatment that will improve the Applicant’s condition.

    [28] Exhibit 6, Report of Mr Lynam dated 11 April 2016.

27. It is, to my mind, telling that the Applicant’s condition has not improved, even though she has received some 840 sessions of physiotherapy. While I have no doubt that her physiotherapists were bona fide trying to help her, their treatment models all had themselves – her physiotherapists – at their centre. Even when they recognised that they could have no rehabilitative effect on her conditions, they nevertheless endorsed courses of treatment that relied more on recurring visits on the physiotherapists than on promoting independence in the Applicant. Physiotherapy has thus become for the Applicant a form of reactive, passive treatment. As noted by Mr Papagoras, “[t]he provision of regular, ongoing passive treatment or regular, ongoing supervised exercises can undermine the consideration that self management can be a reasonable long term solution to manage chronic pain and flare ups.”[29] Particularly in light of the long-term nature of the treatment and the Applicant’s mental state, I am inclined to agree with Mr Papagoras – I find that physiotherapy has undermined the Applicant’s self-management of her conditions.

    [29] Exhibit 13, Report of Mr Papagoras, p 8.

28. I therefore consider that any benefit the Applicant may gain from short-term pain relief or a reduction in the likelihood that her conditions will deteriorate is outweighed by the severe detrimental impact her physiotherapy has had on her self-management of her injury, and the costs it imposes on Comcare. I therefore find that the Applicant’s claimed physiotherapy is not reasonable in her circumstances. Comcare is not liable for it.

    The Applicant’s Claimed Acupuncture and Remedial Massage

29. The Applicant has also claimed acupuncture and remedial massage treatments for her conditions. The first question for the Tribunal is whether these treatments are capable of constituting “medical treatment” for the purposes of the Act. Provided any masseur the Applicant saw is registered, any remedial massage she may seek will be considered medical treatment.[30] It further appears that the Applicant has been seeking acupuncture treatment from Ms Leah Baldwin, a registered acupuncturist. This requirement is insufficient for any treatment provided by Ms Baldwin to constitute medical treatment in and of itself.

    [30] See the Act, s 4.

30. Comcare may be liable for the Applicant’s acupuncture if it was “therapeutic treatment obtained at the direction of a legally qualified medical practitioner”.[31] Dr Adrian Jones, the Applicant’s treating General Practitioner, noted that the acupuncture and remedial massage the Applicant had been receiving was “helping her considerably”, and that it “would be beneficial for her to continue treatment”.[32] I am not satisfied that this statement alone is sufficient to meet the requirements of s 4 of the Act, and thus for the Applicant’s acupuncture to constitute medical treatment.

    [31] The Act, s 4.

    [32] Exhibit 1, T Documents, T 5, p 13.

31. In any event, I do not consider that either remedial massage or acupuncture is reasonable treatment for the Applicant to obtain in the circumstances of her conditions.

32. Dr Jones clearly considered both the Applicant’s remedial massage and acupuncture to be of some benefit to her. With respect to the acupuncture, Ms Baldwin noted that the Applicant “showed marked improvement right from the first treatment”.[33] I note that there is little extrinsic evidence as to the benefit received by the Applicant by either treatment, and no evidence outside statements by Dr Jones and the Applicant herself about the remedial massage.

    [33] Ibid, T 4, p 12.

33. Even if there was more evidence than these cursory reports, it is apparent that the only benefit the Applicant received from either massage or acupuncture was a temporary alleviation of her pain. Of course, this is a benefit for the Applicant. However, it is by nature a fleeting one. As noted by Dr Vecchio, massage “engenders dependency, is not research-driven or evidence focused, can never promote independence, is short-lived and not cost-effective”.[34] I am inclined to agree. Particularly in circumstances, such as this, where there is no medical evidence as to the benefit the Applicant received from her remedial massage, I consider what benefit she may receive to be outweighed by the cost and likelihood of dependency relating to the massage therapy. Consequently, massage is not reasonable in the circumstances.

    [34] Exhibit 12, Dr Vecchio’s Report of 30 November 2016, p 11.

1. With respect of the Applicant’s acupuncture, there is somewhat more evidence as to the treatment’s efficacy. Indeed, Dr Vecchio noted that it is a form of treatment that has “some compatibilities with the principles, as it does allow a sense of independence, externalises the medical model of drugs/prescriptions/medicalisation and vents her position regarding self-management.”[35] However, this must again be weighed against its cost and the risk the Applicant will become dependent upon it, rather than increasing her independence. Particularly given the Applicant’s tendency to become dependent upon forms of treatment that reduce her pain (e.g. physiotherapy above), I find that this form of treatment, too, is not reasonable in the Applicant’s circumstances.

   [35] Ibid, p 12.

2. Consequently, Comcare is liable to the Applicant for neither acupuncture nor massage therapy.

   An Additional Matter

3. I note Comcare has conceded that, the Tribunal affirming the reviewable decisions does not preclude the Applicant from making a claim for compensation regarding any of the above forms of treatment, should she suffer a “flare up” or exacerbation of her condition.[36] I consider this concession appropriately made. The Applicant is entitled to lodge fresh claims under s 16 of the Act, as any flare ups arise. Dr Vecchio suggested providing the Applicant with “12 adhoc [sic]… attendances at either professional service” per year.[37] While I am not satisfied that such an approach would be appropriate on the evidence currently before me, I again note that nothing prevents the Applicant from lodging fresh claims, supported by the relevant medical evidence, should there be a “flare up” or exacerbation of her condition. Indeed, it seems to me that those circumstances are precisely where temporary pain-reducing treatments might be reasonable.

   [36] Exhibit 10, Respondent’s SFIC, [4.13].

   [37] Exhibit 12, Dr Vecchio’s Report of 30 November 2016, p 8.

4. However, this is not and should not be a consideration in determining whether Comcare is presently liable under the Act: the Tribunal’s present jurisdiction is limited to the review of reviewable decisions, which themselves are reviewing determinations made by Comcare.[38] As flare ups were outside the scope of the determination made by Comcare, so too are they outside the scope of the present decision.

   [38] The Act, s 64; Griffiths and Telstra Corp Ltd [2013] AATA 695, [30].

   ISSUES B AND C: COMCARE’S LIABILITY FOR THE APPLICANT’S RIGHT ROTATOR CUFF SYNDROME

5. Under s 14 of the Act, Comcare is liable to pay compensation to a person if an employee suffers an injury that results in, inter alia, impairment. Relevantly here, s 5A(1)(b) defines injury to mean:

   an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment…

6. From the evidence before me, there can be little doubt that the Applicant is suffering from a right shoulder condition, and that this condition meets the plain meaning of an injury. However, in order to satisfy the s 5A(1)(b) definition, the Applicant must be able to show her right shoulder condition arose out of her employment.

7. Comcare has accepted liability for conditions relating to the Applicant’s left arm and shoulder.[39] The Applicant has argued that her right shoulder condition is related to her left arm conditions because she compensated for the issues with her left arm by overusing and straining her right arm and shoulder.

   [39] Exhibit 1,T Documents,  PT 10, p 51.

8. This argument is supported by Dr Jones in a report dated 19 May 2015, where he described the Applicant’s right shoulder condition as “secondary to overuse of her Right arm to compensate for the dysfunction of her Left dominant arm.”[40] On 24 July 2015, Dr Jones further noted “[h]er right shoulder rotator cuff syndrome is not unexpected given her need to over-use her non-dominant arm because of the impairment in her Left arm.”[41]

   [40] Ibid, PT7, p 44.

   [41] Ibid, PT14, p 70.

9. An alternative explanation, endorsed by Comcare,[42] was put forward by Dr Vecchio in a report dated 4 December 2014, where he noted:

   Whilst there may be some connection between the right shoulder discomfort, the increased work flow and the left arm infirmity, the connection is loose. My opinion is that the right shoulder subacromial bursitis would have occurred in any case and independent of the left arm/neck issues.[43]

   [42] Exhibit 10, Respondent’s SFIC, [4.16].

   [43] Exhibit 1,T Documents, PT 6, p 36.

10. I favour the assessment of Dr Vecchio. Although both Dr Vecchio and Dr Jones are doctors, Dr Vecchio is a specialist who has “spent a year in a Centre of Excellence focusing [on] research and clinical experience on this topic.”[44] Dr Jones, meanwhile is a GP. I therefore favour Dr Vecchio’s expertise to that of Dr Jones in making these kinds of assessments. Further, Dr Jones himself noted that referral to a shoulder specialist would be needed for “further clarification od [sic, of] shoulder pathology and optimal treatment”.[45] Although not an orthopaedic specialist as envisaged by Dr Jones, I am satisfied that Dr Vecchio is a specialist who is sufficiently qualified to give expert evidence in this matter.

    [44] Exhibit 12, Dr Vecchio’s Report of 30 November 2016, p 9.

    [45] Exhibit 1, T Documents, PT14, p 70.

11. I therefore find, in accordance with Dr Vecchio’s assessment, that the Applicant’s right shoulder condition would probably have occurred independent of the issues the Applicant suffers with her left arm and neck. This condition therefore neither arose out of, nor in the course of, the Applicant’s employment, and so is not an injury for the purposes of the Act. Comcare is not liable under s 14 of the Act to compensate the Applicant for her right shoulder condition.

12. As the Applicant’s right shoulder condition is not an injury for the purposes of the Act, there is no need to progress to Issue C.

    CONCLUSION

13. In summary, I find that Comcare is not liable to the Applicant for:

    (a)Claimed physiotherapy;

    (b)Claimed acupuncture;

    (c)Claimed remedial massage therapy; or

    (d)Her right shoulder condition.

14. The decisions under review are therefore affirmed.

I certify that the preceding 47 (forty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

.....................[sgd].............................................

Associate

Dated: 13 September 2017

Dates of hearing:	3 May 2017 & 24 May 2017
Applicant:	In person
Advocate for the Applicant:	Mr Gregory Turnbull
Counsel for the Respondent:	Ms Kate Slack
Advocate for the Respondent:	Ms Suzy Dole
Solicitors for the Respondent:	Sparke Helmore