O’Day and Comcare (Compensation)
[2017] AATA 1328
•31 July 2017
O’Day and Comcare (Compensation) [2017] AATA 1328 (31 July 2017)
Division:GENERAL DIVISION
File Number:2016/2093
Re:Robert O’Day
APPLICANT
ComcareAnd
RESPONDENT
DECISION
Tribunal:Senior Member A Nikolic AM CSC
Date:31 July 2017
Date of written reasons: 23 August 2017
Place:Melbourne
For reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
.................[sgd]...........................................
Senior Member A Nikolic AM CSC
COMPENSATION – whether Comcare liable to pay compensation for osteopathic treatment – decisions under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Watson, Amanda [1997] FCA 149
Jorgensen and Commonwealth (1990) 23 ALD 321
Negri v Secretary, Department of Social Services [2016] FCA 879
Re Alamos v Comcare [2014] AATA 629
Re Comcare v Holt [2007] AATA 629
Re Durham v Comcare [2014] AATA 753
Re Popovic and Comcare [2000] AATA 264Re Topping v Comcare [2015] AATA
Secondary Materials
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 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.
Comcare contends that the osteopathic treatment claimed by Mr O’Day is no longer obtained in relation to the injury he sustained on 4 July 1991, because his symptoms arise from age-related Lumbar Spondylosis and not the musculoligamentous strain he sustained in 1991. In the alternative, Comcare contends it is no longer reasonable in the circumstances for Mr O’Day to obtain further osteopathic treatment, because:
(a)it is not curative but only provides a short-term benefit;[10]
(b)it only provides a temporary respite from pain, which is ‘superficial and ephemeral;’[11]
(c)any short-term relief obtained is outweighed by the counter-productive effect of Mr O’Day developing dependency on osteopathy, thereby inhibiting his ability to learn to self-manage his condition; and
(d)even if the treatment had some therapeutic benefit in the past, the extent of the benefit achieved during the last 24 years no longer justifies the cost.[12]
[10] In support of this contention, Comcare refers to Popovic v Comcare [2000] 64 ALD 171 at [28]; Alamos v Comcare [2014] AATA 629 at [39; and Durham v Comcare [2014] AATA 753.
[11] In support of this contention, Comcare refers to Topping v Comcare [2015] AATA 525 at [51].
[12] In support of this contention, Comcare refers to Comcare v Holt [2007] AATA 629 at [26].
Statutory Framework
The relevant statutory provisions in this case are contained in the Safety, Rehabilitation and Compensation Act 1988 (the Act):
(a) Section 14(1) of the Act provides that subject to the balance of Part II, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment:
(b) ‘Medical treatment’ is defined at section 4 of the Act as:
…
(b) 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…
(c)Section 4 states that ‘therapeutic treatment includes an examination, test or analysis done for the purposes of diagnosing, or treatment given for the purposes of alleviating, an injury.’
(d)Section 16 of the Act provides for the payment of reasonable medical treatment of an employee and expenditure reasonably incurred in obtaining that medical treatment, with section 16(1) stating:
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Issues for the Tribunal
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.
Continuing Osteopathy Recommendation by Dr Whelan. In a Comcare form dated 23 August 1996, Dr Whelan recommends that Mr O’Day continue fortnightly with ‘manipulative therapy and massage therapy to the neck and lower back to help mobilize, relax and stretch the muscles in these areas.’[18]
[18] Exhibit R2, p.5.
Report of Mr Shannon. Orthopaedic Surgeon Mr Michael Shannon examined Mr O’Day on 14 July 1999, stating in his report[19] that ‘his neck plays up occasionally but his main problem is low back pain aggravated by prolonged standing or sitting.’ Dr Shannon’s opinion was that Mr O’Day’s symptoms and radiology were ‘consistent with mild degenerative change in his neck and back,’ which were ‘essentially age-related and associated particularly with his build.’ While Dr Shannon did not discount that the accident ‘could well have injured his neck,’ he concluded that ‘in a seat-belted occupant it would be unlikely that significant stresses would be imposed on the low back provided the seatbelt held and the seatbelt did not collapse.’ Dr Shannon recommended that ‘treatment should be scaled down and ceased within three months,’ noting:
‘It is now eight years since the accident and I suspect that the effects of the accident have ceased and that his continuing symptoms relate to the minor degenerative changes demonstrated.
He has become dependent on manipulative treatment and I believe that continuing treatment eight years after the accident on a weekly or fortnightly basis is neither reasonable nor accident related.
Mr O’Day is able to perform his normal occupation and to play golf every week, and I think with a self-managed exercise program he can cease active treatment.
[19] Exhibit R2, pp.6-9.
Letter by D. Katsafouros. A letter from osteopath D. Katsafouros dated 15 November 1999 states that Mr O’Day ‘receives temporary relief of his symptoms’ from osteopathic treatment, and that if he ‘aggravates his back and does not receive osteopathic treatment his back becomes inflamed...’[20] Ms Katsafouros states that monthly osteopathic treatment had been trialled, but she considered this was insufficient to ‘maintain his back at a reasonable functional level…’ She recommended that osteopathic treatment continue, as supported by Dr Whelan, who believed that ‘treatment every 2-4 weeks is appropriate’ on an ongoing basis into the future.
[20] Exhibit R2, pp.12-13.
Report of Mr Wilde. Orthopaedic Surgeon, Mr Peter Wilde, examined Mr O’Day on 9 February 2000 and reported that he had a ‘chronic lumbar spinal condition,’ which became symptomatic after the vehicle accident in 1991. He diagnosed ‘mechanical lumbar back pain secondary to lumbosacral internal disc and facet joint derangement without disc prolapse causing sciatica.’ He states the ‘chronic cervical pain arises from degenerative disc and facet joint disease, which was aggravated by the motor vehicle accident.’ Mr Wilde noted that prior to the car accident Mr O’Day had ‘denied significant lumbar or cervical symptoms,’ and assessed it was likely the accident was ‘a significant contributing factor.’ He felt it was likely there was:
‘a degree of asymptomatic degenerative disc disease prior to this injury however the injury caused further internal disc derangement thus precipitating symptoms in both his back and neck.’
Mr Wilde noted conservative treatment was appropriate and considered the ‘condition had stabilised.’ He assessed the prognosis was ‘good although I expect that he will always suffer with low grade symptoms of chronic lumbar and cervical pain and stiffness.’
Treatment Plan – Dr D. Milas. A Treatment Plan signed by osteopath Dr D. Milas dated 24 September 2011 diagnosed ‘degenerative changes to the lower lumbar L4-5, L5-S1 joints and discs as a result of long term lumbar strain sustained by motor vehicle accident in 1991.’ Fortnightly ‘manual therapy’ was recommended to treat what Ms Milas contended was ‘permanent dysfunction which can be managed by osteopathic treatment fortnightly, exercise, and correct ergonomics.’ The recommended treatment was ‘soft tissue therapy to reduce muscle hypertonicity of thoracic and lumbar musculature. Muscle energy techniques and articulation of restricted joints and ligaments to improve mobility.’ The treatment goals were ‘to help patient continue with work and leisure activities.’ Dr Milas stated that Mr O’Day would be advised of ‘mobility stretches, strength to be done at home – reviewed regularly and changed according to needs.’
Letter – Dr L. Chapman. A letter from osteopath Dr L. Chapman dated 21 September 2012 states that Mr O’Day was ‘suffering lower back pain as a result of degenerative changes across the lumbosacral joint…[and]…moderate cervical pain.’[21] The letter states that 21 years after his motor vehicle accident, ‘Mr O’Day is still suffering the remnants of a severe whiplash injury…The dysfunction of the cervico-thoracic junction is predisposed by a previous whiplash injury and is maintained by repetitive occupational stress and poor cervico-thoracic posture.’ Dr Chapman recommended that osteopathic treatment continue indefinitely ‘on a fortnightly to monthly basis, depending on the severity of his symptoms,’ with treatment consisting of ‘restoration of spinal mobility and balance via various osteopathic techniques…including soft tissue massage, manual traction, gentle joint mobilisation and stretching.’ Dr Chapman stated that the aims of treatment were to ‘improve Mr O’Day’s body awareness and knowledge…thereby helping to achieve an effective self-managed home exercise and stretching prescription…’
[21] Exhibit R1, pp.5-9.
Letter - Dr W.H Millar. A letter from Mr O’Day’s general practitioner, Dr Miller, dated 7 August 2013 strongly supports continuation of his osteopathic treatment, stating ‘I am not aware of any home based therapy which would give the same benefits. Home exercise programs have been tried in the past. I imagine the osteopathic treatment will need to be ongoing…I am not aware of any other medical treatment which would help.’[22]
[22] Exhibit R1, pp.10-11.
Letter – Dr D. Milas. A letter from osteopath Dr D. Milas dated 26 October 2013, diagnoses ‘degenerative changes to C3-4, C4-5 and C5-6 joints as a result of musculoligamentous strain sustained in the neck. The cause of the patient’s condition is the musculoligamentous strain sustained in the motor vehicle accident in the 4th of July 1991.’ [sic]. Dr Milas stated that Mr O’Day had experienced setbacks in his treatment, including aggravations after ‘travelling on a tram…bending forward…or after playing golf,’ which had been managed with Panadeine Forte, cold packs and osteopathic treatment. She recommended that Mr O’Day’s osteopathic treatment ‘continue indefinitely’ for ‘maintenance and symptomatic relief,’ but she did not consider there would be ‘any improvement in his condition.’ Dr Milas repeated this recommendation in a letter dated 8 March 2016, stating that ‘the affected spinal areas that were injured in 1991 are aggravated by everyday tasks and positions. Therefore the patient requires ongoing treatment.’[23]
[23] Exhibit R1, p.32
Letter – Dr M. Haworth. Chiropractor Dr M. Haworth treated Mr O’Day in response to a referral from Dr Miller, providing ‘very light force chiropractic adjustments’ of his lumbar spine and ‘flexion/distraction of his lower lumbar region to decrease disc compression to his nerve roots.’ In a letter dated 20 May 2015, Dr Haworth recommended that Mr O’Day have Myotherapy sessions and acupuncture, proposing two practitioners in Myotherapy and Chinese Medicine.[24]
[24] Exhibit R1, p.15.
CT Scan - 10 June 2015: Dr Gareth Phillips concluded:[25]
‘There are mild disc degenerative changes from L3 to S1 with disc bulging at the L3/4 and L4/5 levels, a very small right sided lateral disc herniation at the l3/4 level and a small central posterior disc herniation at the L5/S1 level.
No other disc herniation is seen.
No canal stenosis is identified.
No abnormality likely to significantly compromise the thecal sac or nerve roots is seen.
[25] Exhibit R2, p.36.
MRI Lumbar Spine – 15 June 2016: Dr Ian Clare concluded:[26]
‘Mild lumbar degenerative disc disease. No disc herniation, canal stenosis or nerve root compression.’
[26] Exhibit R2, pp.37-38.
Correspondence – Dr Miller.
(a)A letter from general practitioner, Dr Miller, dated 17 June 2015 stated Mr O’Day ‘has found benefit from having massage therapy and acupuncture (from a chinese therapist) [sic] in addition to the osteopathic treatment. It is recommended that he continue these treatments weekly on an ongoing basis.’[27]
(b)In a letter dated 24 June 2015, Dr Miller states that Mr O’Day had experienced increased pain in his back and neck during the previous two months, requiring several scripts for Panadeine Forte.[28]
(c)In a Comcare Claim for Exercise As Medical Treatment dated 5 August 2015, Dr Miller recommends that Mr O’Day be assessed by a personal trainer / coach and have access to equipment in a gym.[29] In this application Mr O’Day sought compensation of $140 per month for gym membership at a local health club, contending that his clinical needs could not be addressed through independent exercise at home or outdoors and that he ‘required guidance with his technique and someone to watch and monitor his progress.’[30]
(d)On 22 January 2016, Dr Miller stated Mr O’Day had a ‘chronic musculoskeletal/ligamentous strain of the neck and lower back,’ for which he had been receiving osteopathic treatment on a fortnightly basis, including ‘education on how to use his back so as to reduce the chance of straining.’ [31] He stated that as a result of the pain-relieving effects of this treatment, Mr O’Day was ‘able to avoid analgesics as much as possible…and manage his daily activities at home and normal social activities.’ I infer from Dr Miller’s letter that the primary effect of the osteopathic treatment being provided was preventative in nature, particularly in light of his assessment that it was ‘effective but as the condition was a chronic one the improvement is not sustained.’ Dr Miller recommended ‘ongoing osteopathic treatment on an indefinite basis is essential to maintain this condition and allow activities of normal daily living.’
[27] Exhibit R1, p.16.
[28] Exhibit R1, p.17.
[29] Exhibit R1, p.20.
[30] Exhibit R1, p.21.
[31] Exhibit R1, pp.26-27.
Report of Mr Haig. Orthopaedic surgeon, Mr Ronald Haig examined Mr O’Day on 1 September 2016. Mr Haig’s report, dated 21 September 2016, states in the ‘Summary and Assessment’ section:
‘…
He was investigated early on with plain x-rays and CT scan of the lumbar spine. Those I have seen of the lumbar spine were normal at that stage.
Recent investigations, that is 25 years later, showed degenerative changes in the lumbar spine…
…
I believe his current symptoms in the lumbar spine are due to lumbar Spondylosis, which is essentially age-related.
…
He does appear to have become emotionally attached to his osteopathic treatment and massage and acupuncture.’
…
I believe his current neck and lower back conditions are now more related to degenerative change than to the accident itself.
…
There is no chance that the osteopathic treatment would restore Mr O’Day to the condition he was in prior to the accident.
I do not agree with the opinion expressed by Dr Miller when he states “Without the osteopathic treatment I would predict that pain will increase and Mr O’Day would become more and more incapacitated…’ I have no reason to believe his pain will increase without osteopathic treatment.
…I believe Mr O’Day is emotionally dependent on his osteopathic treatment. There may well be a significant placebo effect from this. I believe a self-managed exercise program at home would be equally effective.’
Mr Haig provided a supplementary report dated 8 December 2016, which states in part:
‘I agree with Mr Roger Westh’s opinion that “Mr O’Day was suffering from musculoligamentous strain with possible involvement of the facet joints.”
I disagree with the report of Dr Barrie Whelan when he opined “the current degenerative changes showing on x-rays and scans have a high probability of being contributed to by the accident.” I believe it is far more likely that such changes were age-related.
…
…report of Ms Diane Milas (osteopath) stated that the “cause of Mr O’Day’s spina conditions and symptoms is the musculoligamentous strain sustained in the motor vehicle accident…” I disagree. I believe any musculoligamentous strain would long since have settled and his current symptoms are due to the degenerative change that has occurred in the neck and lumbar spine over the past 25 years.’
…report of Dr William Miller noted that Mr O’Day got a great deal of pain relief from osteopathic treatment, such that he was “able to avoid analgesics as much as possible.” Mr O’Day from my history taking was taking two Panadeine Forte at night, and possibly up to four during the day. This has been the case for a few years. I would not suggest that is avoiding analgesics.
…
It is now 25 years since the subject accident. He is now 61 years of age and is morbidly obese. It is not surprising he has degenerative changes in the neck and particularly in the lumbar spine. These, in my opinion, are age-related and contributed to in the lower back by morbid obesity. Hence my statement that I believe his symptoms are more related to degenerative change than to the accident itself.
I believe there has been very little, if any, contribution to the degenerative change by the subject accident.
…
I believe the mainstay of treatment is significant weight loss and hopefully reduction of his considerable Panadeine Forte intake to that of simple analgesics and perhaps anti-inflammatory agents.
In his oral evidence, Mr Haig said Mr O’Day’s accepted injury was a ‘diagnosis of exclusion’ because scans of his lumbar spine after the accident had excluded any bony injury. This meant the injury sustained was ‘soft tissue in nature.’ A ‘musculoligamentous strain’ is defined as ‘an overstretching or overexertion’ involving the muscles and / or ligaments.[32] Mr Haig’s evidence in this regard was consistent with that of Mr Westh in 1991, whose report concluded there were no major abnormalities in Mr O’Day’s radiology after the vehicle accident, but did confirm the presence of ‘osteoarthritic changes.’ Osteoarthritis is defined as:
‘a noninflammatory degenerative joint disease seen mainly in older persons, characterised by degeneration of the articular cartilage, hypertrophy of bone at the margins, and changes in the synovial membrane. It is accompanied by pain, usually after prolonged activity, and stiffness, particularly in the morning or with inactivity. Called also degenerative arthritis, hypertrophic arthritis, and degenerative joint disease.’[33]
[32] Dorland’s Illustrated Medical Dictionary, 2003, 30th Edition, Saunders, Philadelphia, p.1766.
[33] Ibid, p.1333.
Mr Haig submitted that given the musculoligamentous nature of Mr O’Day’s accepted injury, it should have ‘settled within a matter of months or a year.’ He contended that the degenerative changes described, particularly in Mr O’Day’s lumbar spine, had not been caused by the accident, but by ‘the passage of time,’ exacerbated by Mr O’Day’s obesity. Mr Haig said the osteopathic treatment received by Mr O’Day had made ‘no difference other than at a psychological level,’ and considered that Mr O’Day had become dependent on the treatment. He said the best management strategy for Mr O’Day’s symptoms was ‘anti-inflammatories if tolerated, analgesics – not opioid, and marked weight loss.’ He disagreed with the management strategy of treating osteopaths and Mr O’Day’s general practitioner, stating that despite over two decades of soft tissue massage and other passive modalities, there had been no clinically-significant change in Mr O’Day’s symptoms. Ms Lucas reinforced this point with reference to the summonsed clinical records, by highlighting a multiplicity of entries stating there had been ‘no change’ or ‘no real change’ or ‘no significant changes noted’ by Mr O’Day’s general practitioner despite approximately 450 osteopathic treatments.
Was the osteopathic treatment claimed by Mr O’Day obtained at the direction of a legally-qualified medical practitioner?
It is not contested in this case that the osteopathic treatment obtained by Mr O’Day was medical treatment for the purposes of section 16 of the Act, or that it was recommended by a legally qualified medical practitioner, or that it was provided by, or under the supervision of an osteopath.
Was the osteopathic treatment intended to be therapeutic in the context of his accepted condition, and is it reasonable in the circumstances for Mr O’Day to continue to obtain the osteopathic treatment?
In responding to these questions, there is a discernable tension in the medical evidence between the opinions of orthopaedic surgeons on one side, compared to osteopaths and Mr O’Day’s general practitioner on the other. After careful consideration of the medical evidence, I have placed more weight on the opinions of orthopaedic specialists, whose education and training in the diagnosis, treatment, prevention and rehabilitation of injuries, disorders and diseases of the body's musculoskeletal system, is far more extensive than that undertaken by osteopaths and general practitioners. After considering all of the medical evidence, I am satisfied that the osteopathic treatment obtained by Mr O’Day was initially prescribed to alleviate his accepted injury and to transition him to a self-managed home exercise and stretching regime. The question, however, is whether the osteopathic treatment is still directed at treating Mr O’Day’s accepted condition, and if it is reasonable in all the circumstances for it to continue.
Mr O’Day submits that osteopathic treatment has a preventative effect by reducing his muscle tension and pain, enabling him to function better. His evidence at the hearing was that he had ceased remunerative employment in 2012, but continued to access osteopathic treatment every 3-4 weeks, even at his own expense, because it had made ‘a huge difference’ in his life. He agreed during cross-examination that the beneficial effects of osteopathy were transient, in that his pain dropped down ‘to a 1’ immediately after an osteopathic consultation, but gradually worsened in subsequent days. Notwithstanding the temporary alleviation of his symptoms, Mr O’Day contends that osteopathy helps him accomplish tasks like mowing the lawn, making wooden toys in his garage, and extending the time he can drive his car. Mr O’Day says he does stretching exercises at home in conjunction with osteopathy and other passive modalities, which further assist his mobility. Despite efforts through Weight Watchers and other dieting programs to lose weight as an exacerbating factor of his back pain, Mr O’Day stated that these diets ‘didn’t last.’
Mr O’Day submitted that the provision of osteopathic treatment had kept him at work prior to 2012, and its pain-relieving effects enabled him to avoid prescription analgesics and other more expensive medical treatments. In response to a question about his use of Panadeine Forte, Mr O’Day referred to using it ‘for about three months in 2015,’ when he ‘was on crutches and couldn’t walk.’ In his written evidence, Mr O’Day’s general practitioner similarly points to osteopathy as assisting Mr O’Day in avoiding analgesia. But Mr O’Day’s prescription history, as evidenced by his summonsed medical records, shows a much more frequent reliance on prescription analgesia (like Panadeine Forte) over many years to address his back pain.
The temporary effect of Mr O’Day’s osteopathic consultations is apparent in the medical evidence, particularly in correspondence from his treating osteopaths and in Dr Miller’s letter of 22 January 2016. In this regard I note Senior Member Burton’s comments in Chowdhary and Comcare [1998] AATA 448 at [53]:
‘…While provision of temporary relief from pain…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.’
Mr O’Day acknowledges the temporary rather than curative effect of osteopathic treatment, but considers it essential nevertheless in reducing his symptomology, submitting that it should continue indefinitely. He contends that just because the treatment is not curative, does not mean it is not reasonable. I accept that submission because ‘alleviating an injury’ falls within the meaning of section 4 of the Act, consistent with the beneficial purposes of the legislation. As Finn J noted in Comcare v Watson, Amanda [1997] FCA 149:
‘A course of treatment designed to, or aimed at, alleviating the pain caused by an injury or disease is, in my view, properly to be regarded as therapeutic treatment.’
But as Finn J also noted, the purpose of that therapeutic treatment must be to treat ‘…the particular injury in question. If…not…then notwithstanding its beneficial effects, it will not relevantly be therapeutic treatment...’ (emphasis added). That is because section 16(1) of the Act requires consideration of whether the medical treatment sought is ‘obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances).’ (emphasis added).
As previously discussed, the intent of the osteopathic treatment initially received by Mr O’Day after his vehicle accident was directed at treating his accepted injury. But I am not satisfied it continued to relate to his accepted injury with the passage of time. The weight of influential medical evidence supports a conclusion that the osteopathic treatment should not have continued beyond approximately 12 months after his vehicle accident. I rely in particular on the opinions of Mr Westhe, Mr Shannon and Mr Haig in concluding that any musculoligamentous strain suffered by Mr O’Day in 1991 would have settled within approximately 12 months. I am satisfied that any symptoms from the vehicle accident after that time would have been increasingly overtaken by those arising from the age-related, and pre-existing degenerative changes in his spine. Mr O’Day’s symptoms have also been exacerbated by what Mr Shannon referred to in 1999 as his ‘build’ and Mr Haig referred to in 2016 as ‘morbid obesity.’
On any reading of the specific circumstances of Mr O’Day’s case, the time during which osteopathic treatment might have been considered reasonable within the meaning of the Act, has long since passed. In this regard I note the Clinical Framework for the Delivery of Health Services (Clinical Framework), which was first adopted by Worksafe Victoria in 2003, subsequently by the Transport Accident Commission in 2011, and is now in wide usage as guiding principles for health care professionals when treating injury. The five principles embodied within the Framework are:
(a)Measure and demonstrate the effectiveness of treatment;
(b)Adopt a biopsychosocial approach;
(c)Empower the injured person to manage the injury;
(d)Implement goals focused on optimising function, participation and return to work; and
(e)Base treatment on the best available research evidence
In Bayani and Australian Postal Corporation [2015] AATA 342, the Tribunal considered these principles in relation to prolonged physiotherapy treatment (at [48] and [55]):
48. I am satisfied that had this principle been observed, it would have been obvious that the physiotherapy treatment was not providing a measurable benefit, the applicant’s health status had not changed, and functional goals, if ever established, were not being achieved.
…
55. I think because there has been no real benefit to the applicant by the prolonged physiotherapy treatment that she has undertaken, there is considerable benefit in her taking responsibility for self-management of her symptoms, consistent with the Framework. I fear that the applicant has become dependent on physiotherapists who have provided her with symptomatic relief only. For her to undertake self-management will require a refocus of responsibility and a willingness to be instructed and subsequently practice and implement appropriate strategies as determined by a competent physiotherapist.
Although the Tribunal is not bound by the Clinical Framework, I consider it appropriate for consideration. I accept Ms Lucas’ submission that treatment conforming to the principles in the Clinical Framework is more likely to be considered reasonable under section 16 of the Act. This approach reflects the Tribunal’s decision in Re Popovic and Comcare [2000] AATA 264, which, like Bayani, was a case dealing with the provision of physiotherapy. The members constituting the Tribunal held (at [28]):
‘In relation to the applicant's claim for physiotherapy treatment expenses, in our view there is no role for passive physiotherapy in the applicant's current treatment regime. The physiotherapy he was having could not improve him in the long term, has limited, if any, short term benefit, and may in fact be contra-indicated. Any therapeutic benefit he received was small and short-lived. We accept that pain relief, even short-term relief or reduction in pain, can be therapeutic (Comcare v Watson (1997) 73 FCR 273 at 276 per Finn J). However, in this case any benefit is outweighed by the counter-productive effect of it leading the applicant to a dependent state, inhibiting his ability to learn to cope, and to embark on pain management programs to assist him with that object. Taking into account the whole of the evidence before us, we consider that in the applicant's case it was not in his best interest for passive physiotherapy modalities to have continued beyond 16 September 1997…’
It is worth noting that the objective to transition Mr O’Day from osteopathic treatment to a self-managed program has never been achieved. In Mr De Souza’s 1992 letter to Dr Whelan, for example, it was expected that ‘some progress [would] be made by his sixth visit.’ Approximately four years later, the osteopathic treatment plan was still trying to extend the intervals between Mr O’Day’s osteopathic consultations and transition him to a ‘maintenance’ regime. After 21 years of osteopathy, Ms Chapman’s treatment plan was still trying to achieve ‘an effective self-managed home exercise and stretching prescription.’
The Respondent estimates that the cost of approximately 450 osteopathic sessions for Mr O’Day is approximately $32,000. No submissions were made about the indicative future lifetime cost of funding that treatment indefinitely, which is expected to be considerable. In this regard I note Mansfield J’s elaboration in Comcare v Holt [2007] FCA 405, about cost-benefit considerations, with His Honour noting (at [26]):
‘There may be cases…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: see e.g. Bashar v Comcare (2002) 69 ALD 784.’
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
It therefore follows that the decision under review is affirmed.
I certify that the preceding 52 (fifty‑two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Nikolic AM CSC
[sgd]........................................................................
Associate
Dated: 23 August 2017
Date of hearing: 31 July 2017 Applicant: In person Counsel for the Respondent: Julia Lucas Advocate for the Respondent: Aviva Kalman Solicitors for the Respondent: Australian Government Solicitor
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