Dorland’s Illustrated Medical Dictionary, 2003, 30th Edition, Saunders, Philadelphia.
REASONS FOR DECISION
23 August 2017
INTRODUCTION
Mr Robert O’Day is 62 years old and was employed by Trans Australian Airlines and then QANTAS Airways Pty Ltd (QANTAS) for over 35 years, before being made redundant in 2012. His application relates to a car accident on 4 July 1991 while driving home from work as an aircraft spray painter.
Mr O’Day signed a Comcare compensation claim on 10 July 1991 for ‘muscular strain of neck and lower back.’[1] Comcare accepted liability for ‘musculoligamentous strain of neck and lower back’ (the accepted injury). For almost 25 years until February 2016, Comcare has funded therapeutic treatment relating to this injury, including over 450 sessions of osteopathy. On 19 February 2016, Comcare determined that compensation was no longer payable for osteopathic treatment.[2] Mr O’Day sought reconsideration of the decision and on 1 April 2016, Comcare advised him it had been affirmed.[3] On 20 April 2016, Mr O’Day asked the Tribunal to review Comcare’s decision.[4]
[1] Comcare Compensation Claim by Robert Francis O’Day dated 10 July 1991 (Compensation Claim), p.1.
[2] T-Documents dated 20 May 2016, pp.28-29, and hereafter referred to as Exhibit R1.
[3] Exhibit R1, p.39.
[4] Exhibit R1, pp.1-2.
The hearing was conducted on 31 July 2017 and Mr O’Day’s brother Peter appeared as his advocate. Ms Julia Lucas of counsel appeared for the Respondent. Mr O’Day gave oral evidence and was cross-examined. The Respondent called consultant orthopaedic surgeon, Mr Ronald Haig, who provided a medical report, gave oral evidence and was cross-examined.
At the conclusion of the hearing I made my decision ex tempore, but on 7 August 2017 the Respondent requested written reasons for my decision. These are the reasons requested, which accord with the requirements of section 43(2B) of the Administrative Appeals Tribunal Act. In providing them I have had regard to the decision of Bromberg J in Negri v Secretary, Department of Social Services [2016] FCA…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
O’Day and Comcare (Compensation) [2017] AATA 1328
Case
[2017] AATA 1328
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by Mr O’Day against a decision by Comcare to cease liability for ongoing osteopathic treatment. Mr O’Day sustained a musculoligamentous strain to his neck and back in a motor vehicle accident in July 1991. While initially compensated for osteopathic treatment, Comcare ceased liability in 2000, though this decision was later overturned on internal review. Mr O’Day sought to continue receiving compensation for osteopathic treatment, arguing that his accepted injury was chronic and required ongoing treatment to manage his symptoms, particularly as he could not take anti-inflammatory medication due to other health conditions. The Administrative Appeals Tribunal was required to determine whether the osteopathic treatment was obtained at the direction of a legally qualified medical practitioner, whether it was therapeutic in the context of his accepted condition, and if it was reasonable for him to continue obtaining such treatment in the future.
The Tribunal considered various medical opinions and evidence regarding Mr O’Day’s condition and treatment. It noted that while initial osteopathic treatment was provided following a referral from his general practitioner, Dr Whelan, and that Mr O’Day had responded favourably to it at the time, the situation had evolved over approximately 25 years. The Tribunal accepted the opinions of Mr Shannon and Mr Haig, who suggested that Mr O’Day’s reliance on osteopathy reflected an unreasonable dependency unrelated to his accepted injury. They also indicated that a self-managed exercise program would be equally effective and that there was no reason to believe his pain would increase without osteopathic treatment. The Tribunal found that the symptoms Mr O’Day continued to experience, particularly in his lower back, had been exacerbated by his persistent obesity, and that after 25 years of treatment, there had been no measurable improvement or change in his degenerative back condition.
Ultimately, the Tribunal concluded that while the osteopathic treatment initially qualified as eligible medical treatment under the Act, it was no longer reasonable treatment in relation to his accepted injury. The Tribunal found that the benefits of the treatment were transient and substantially outweighed by the consequences of dependency and financial costs. Therefore, the Tribunal found that it was neither reasonable nor in Mr O’Day’s best interests for osteopathic treatment to continue under the Act.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
At the conclusion of the hearing I made my decision ex tempore, but on 7 August 2017 the Respondent requested written reasons for my decision. These are the reasons requested, which accord with the requirements of section 43(2B) of the Administrative Appeals Tribunal Act. In providing them I have had regard to the decision of Bromberg J in Negri v Secretary, Department of Social Services [2016] FCA 879, which considered the extent to which the Tribunal could elaborate upon its oral reasons when producing written reasons. His Honour stated at [27]:‘...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).’BACKGROUND In his compensation claim dated 10 July 1991, Mr O’Day describes the circumstances of his car accident on 4 July 1991 as follows:‘As I was driving home from work…The lights turned green and as I accelerated through the intersection, a car travelling in the opposite direction did a right hand turn in front of my vehicle causing a collision.’ [5][5]Compensation Claim, p.2. At the hearing Mr O’Day described how the vehicle he was driving struck the turning vehicle on its left hand side rear quarter panel.[6] He submitted that he was wearing a seatbelt, did not attend hospital, and that his car was towed and subsequently repaired. He submits he was not initially aware of any pain or injuries, but woke the next morning with pain in his neck and lower back that necessitated a visit to his general practitioner. X‑rays taken at the time showed no significant abnormalities in the cervical and lumbar spine regions. A CT scan of his lumbosacral spine reported no significant abnormalities, but did reveal ‘some osteoarthritic changes in the right lateral apophyseal joint with some sclerosis of the adjacent bony margins...’[7] [6] Supplementary T-documents dated 23 June 2016, p.17 and hereafter referred to as Exhibit R2.[7] Exhibit R2, p.15. Mr O’Day submits that his general practitioner, Dr Barrie Whelan, referred him for chiropractic treatment, physiotherapy and acupuncture, which did not alleviate his symptoms. He was subsequently referred for osteopathic treatment, which Mr O’Day says did alleviate his symptoms and continues to do so. Compensation was subsequently paid for osteopathy until 20 March 2000, when Comcare ceased liability for the claim. Mr O’Day’s request for an internal review was successful, however, and liability was reinstated.[8][8] Exhibit R2, pp.28-31. Mr O’Day submits in his application to the Tribunal that Comcare’s decision to deny him compensation for osteopathic treatment beyond February 2016 was wrong because all of the information he provided ‘was not taken into account, including doctors and osteopaths reports.’ He contends that his accepted injury is ‘chronic and requires ongoing osteopathic treatment to stabilise the effects of the injury and prevent [it] from worsening…[and]…to reverse the impact of re-aggravation.’[9] Mr O’Day contends that he is unable to take anti‑inflammatory medication because he has been prescribed the anticoagulant Warfarin for another condition, and that osteopathy provides him with ‘enormous relief.’[9] Exhibit R1, p.36.
Evidence
Evidence Before The Court
Issues arising from this application are:(a)Was the osteopathic treatment claimed by Mr O’Day obtained at the direction of a legally-qualified medical practitioner?(b)If so, was the treatment intended to be therapeutic in the context of his accepted condition?(c)Is it reasonable in the circumstances for Mr O’Day to continue to obtain the osteopathic treatment in the future?The Medical Evidence Approximately five months after Mr O’Day’s car accident, his general practitioner at the time, Dr Barrie Whelan, referred him to chiropractor Mr Michael Wood.[13] In the referral note, Dr Whelan notes persistent neck and back pain since the vehicle accident, and that ‘CT scanning of LS Spine shows no disc lesion and only mild OA changes in the facet joints L5-S1 region. He has failed to respond to physio, acupuncture, and other treatment modes.’ [13] Exhibit R2, p.1. Mr Wood wrote to Dr Whelan on 29 January 1992, advising that Mr O’Day had ‘discontinued treatment’ due to ‘very little change’ in his symptoms. He stated that ‘individuals who receive manipulative therapy immediately following the injury respond much more quickly,’ and recommended that chiropractic treatment continue in conjunction with ‘Herbalifeline’ capsules containing ‘marine lipid complex… yeast…wheat germ oil…herbs,’ and a preparation containing ‘extracts of Anjelica and Chamomile plus Brewer’s Yeast.’ Letter by Mr R. Westh. Orthopaedic surgeon Mr R. Westh wrote to Dr Whelan on 30 December 1991, stating in part:‘His neck has improved with treatment, however, he still complains of significant lower back pain…Extensive X-rays of his lumbar spine including a CT scan revealed no major abnormality.I would agree that he has essentially musculo-ligamentous strain injuries with possible involvement of his facet joints, and I have recommended an active back exercise programme and also swimming. I do not feel that he requires any other form of treatment.’ Second Referral by Dr Whelan: A referral from Dr Whelan dated 11 February 1992 to the Phillip Institute of Technology’s Osteopath \ Chiropractic Clinic states: ‘Herewith Robert for treatment to lower back and neck following a motor car accident in July 1991.’[14] In subsequent correspondence, Dr Whelan noted that acupuncture, physiotherapy and two months of chiropractic treatment had not assisted Mr O’Day, but that he had ‘responded favourably, to osteopathic treatment.[15][14] Exhibit R2, p.2.[15] Exhibit R2, p.15. Letter by Mr J. De Souza. A letter from Mr J. De Souza of the Phillip Institute of Technology’s School of Chiropractic and Osteopathy dated 18 February 1992, states that he expected to see ‘some signs of progress to be made by [Mr O’Day’s] sixth visit.’[16] [16] Exhibit R2, p.3. Letter by Ms D. Katsafouros. A letter from treating osteopath, Ms Dianne Katsafouros, dated 10 April 1996 states that after examining Mr O’Day, a treatment plan would be implemented to ‘improve joint mobility and lessen the strain on surrounding muscles and ligaments,’ and ‘teach Mr O’Day how to best maintain his musculoskeletal function at its optimum by doing stretches and by using his body correctly in everyday chores.’[17] The recommended osteopathic treatment was intended to vary from weekly to fortnightly, ‘then as Mr O’Day improves, intervals between treatments will be extended with the aim that treatment will only serve as maintenance.’[17] Exhibit R2, p.4.
Decision
Reasons for decision
I accept the opinions of Mr Shannon and Mr Haig, that the Applicant’s reliance on osteopathic treatment reflects an unreasonable dependency, which is unrelated to his accepted injury. I accept Mr Haig’s evidence that a self-managed exercise program at home would be equally effective, which repeats the recommendation of Mr Shannon 17 years earlier. I also accept Mr Haig’s evidence that contrary to the opinion of general practitioner Dr Miller, there is no reason to believe Mr O’Day’s pain would increase without osteopathic treatment. Given his specialty, Mr Haig is better placed to make that judgement than Dr Miller. Moreover, given that Mr O’Day has received osteopathic treatment for approximately 25 years, there has not been an opportunity to ascertain what effects, if any, might arise from the absence of that treatment. CONCLUSION This case has required a balancing exercise across a range of factors, including contested medical opinion, the relative costs and benefits of the osteopathic treatment Mr O’Day seeks to access indefinitely, and whether, in all the circumstances, it is reasonable for Mr O’Day to continue to access that treatment. I find that Mr O’Day’s employer appropriately accepted responsibility for the musculoligamentous strain of his neck and back in 1991. But the symptoms Mr O’Day experienced as a result of that accepted injury were overtaken within 12 months by the age-related, degenerative changes in his lumbar spine. Those degenerative changes were not caused by the vehicle accident, with mild osteoarthritis already evident in radiological findings at the time. Although the osteopathic treatment Mr O’Day received in the aftermath of his vehicle accident qualified under section 16 of the Act as eligible medical treatment, I find it is no longer reasonable treatment obtained in relation to his accepted injury. Consistent with the evidence of Mr Shannon and Mr Haig, I find that the symptoms Mr O’Day continues to experience, particularly in his lower back, have been exacerbated by his persistent obesity. After 25 years of osteopathy and other passive therapies, there has been no measurable improvement in his symptoms, or any change in the course of his degenerative back condition. The benefits of osteopathic treatment have been transient at best. This is not to suggest that Mr O’Day has been unreasonable in accessing the treatment funded by Comcare during the last 25 years, which he genuinely perceives to be beneficial. But, for the reasons adduced, some self-reflection is required by Comcare decision-makers for allowing this treatment to persist for a quarter of a century at taxpayer’s expense. Mr O’Day’s own evidence is that his back symptoms predictably return within days of each osteopathic treatment, which reflects the maintenance of a repetitive status quo, rather than any enduring alleviation of his symptoms. The transient benefit gained by Mr O’Day is substantially outweighed by the consequences of his dependency and the financial costs incurred. I am satisfied that it is neither reasonable, nor in Mr O’Day’s best interests, for osteopathic treatment to continue under the Act. FINDING