Oliver and Comcare (Compensation)
[2017] AATA 252
•28 February 2017
Oliver and Comcare (Compensation) [2017] AATA 252 (28 February 2017)
Division:GENERAL DIVISION
File Number(s): 2014/6322
Re:Louise Oliver
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries
Date:28 February 2017
Place:Canberra
The Tribunal sets aside the reviewable decision of 4 November 2014 and instead substitutes:
(a)that such physiotherapy sessions as Comcare has already paid for in respect of the period 9 June 2014 to 3 January 2015 should be treated as compensable payments to which the applicant is entitled pursuant to s 16 of the Act; and
(b)the applicant has no further entitlement to physiotherapy (including episodic reviews) pursuant to s 16 from 4 January 2015 to the date of the Tribunal’s decision.
......................[sgd]..................................................
Deputy President Gary Humphries
Catchwords
WORKERS COMPENSATION – whether physiotherapy treatment ‘in relation to’
accepted condition – fibromyalgia – regional pain syndrome – upper body – not reasonable to obtain ongoing treatments – where treatment of no long term benefit to worker – where no transition to self-management undertaken – worker ‘dependent’ on treatment – ongoing medical treatment by physiotherapist questioned – incomplete or irregular medical evidence – irregular accounting records – where no ongoing entitlement to treatment under s 16 – decision set aside and substituted.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Alamos and Comcare [2014] AATA 629
Bayani and Australia Postal Corporation [2015] AATA 342
Comcare v Holt [2007] FCA 405
Comcare Australia v Rope (2004) 135 FCR 443
Durham and Comcare [2014] AATA 753
Sommerville and Comcare [2016] AATA 289Secondary Materials
Clinical Framework of the Delivery of Health Services – Revised Version
REASONS FOR DECISION
Deputy President Gary Humphries
28 February 2017
Background
Ms Louise Oliver was working as an assistant library officer at the National Library of Australia when she contracted a pain disorder in her arms in 1987. On 30 June 1988 a workers compensation claim for bilateral arm pain (regional pain syndrome) was accepted, and in about October 2000 she was certified as permanently unfit for work, and made redundant.
Her condition proved to be intractable, and between March 1992 and October 2014 Comcare paid for some 1291 physiotherapy treatments. Several doctors over this period certified that she obtained some benefits from ongoing physiotherapy. From March 1998 her treating physiotherapist was Ms Meeta Lad at Valley Physiotherapy and Sports Injuries Centre. In January 2003 Ms Oliver was awarded compensation for permanent impairment and non-economic loss under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
On 22 May 2014 Comcare determined that Ms Oliver’s ongoing entitlements to physiotherapy under s 16 of the Act would be:
·one treatment per fortnight from 9 June 2014 to 3 August 2014 (4 services); followed by
·episodic review, with up to 8 services between 4 August 2014 and 3 January 2015; then
·a discharge from physiotherapy to self-management after 3 January 2015.
On 8 September 2014 Ms Oliver’s lawyers requested that that determination be reconsidered, but on 4 November 2014 the determination was affirmed. Ms Oliver applied for review of this decision by the Tribunal on 8 December 2014.
The Tribunal notes that the reconsideration decision of 4 November 2014 describes itself as an affirmation of the decision of 22 May 2014, but on one reading it might be said to be in fact an affirmation of the first two arms, but not the third arm, of the earlier decision. The later decision maker writes while the determination of 22 May 2014 informs that you will be discharged from treatment as of 3 January 2015, as this is a date into the future and Comcare is unable to deny future entitlements, I have not considered treatment past this date. It is thus not entirely clear as to whether the Tribunal has jurisdiction over a reviewable decision affecting the period after 3 January 2015. However, the Tribunal accepts the submission of Comcare that it does have the power to determine Ms Oliver’s entitlements to physiotherapy payments in the period between 3 January 2015 and the date of the Tribunal’s decision, relying on the Tribunal’s decision in Sommerville and Comcare [2016] AATA 289 at [30].
The issues before the Tribunal
The first two arms of the reviewable decision before the Tribunal entail some assessment of Ms Oliver’s entitlement to physiotherapy in the period 9 June 2014 to 3 January 2015. Some effort was expended during the hearing in attempting to answer the question of how many compensable physiotherapy sessions were actually provided to Ms Oliver, and paid for by Comcare, in this period. The question proved all but impossible to answer, given in particular the unsatisfactory state of the evidence available from her physiotherapists, Valley Physiotherapy. Not only were the clinical notes provided under summons from Valley Physiotherapy frequently illegible, the accounting practices employed there also appear to disclose serious irregularities. A further complication is that for an extended period Ms Oliver has been receiving physiotherapy at Valley Physiotherapy both for her compensable condition and for a non-compensable condition relating to her lower body, with two treatments for the compensable condition often being provided to Ms Oliver on the same day in quick succession. Ms Lad, the physiotherapist providing these services to Ms Oliver, withdrew from being a witness at the hearing before giving any evidence.
At the end of the day, however, discerning which sessions were compensable and paid for by Comcare, which were not compensable and yet paid for and which were not paid for but which are nonetheless compensable appears to be a barren endeavour. Comcare’s reviewable decision afforded Ms Oliver access to a total of 12 physiotherapy sessions between 9 June 2014 and 3 January 2015. Comcare contended that, of her determined eligibility, Ms Oliver had only used between 8 and 11 sessions, and that for some of these sessions the clinical notes suggest that the service was provided for Ms Oliver’s non-compensable condition, or the clinical notes are missing. Ms Oliver contended that she had attended 13 sessions, for all of which Comcare had actually paid and which were all in relation to her compensable condition. I found Ms Oliver to be a truthful witness and I accept in this regard her assertions regarding the object of the treatments.
Since neither party was able during the hearing to substantiate its position – and indeed, given the unsatisfactory state of the evidence, that task may be impossible – I will set aside Comcare’s reviewable decision and instead provide that such physiotherapy sessions as Comcare has already paid for in the period 9 June 2014 to 3 January 2015 should be treated as compensable payments to which Ms Oliver is entitled. I envisage therefore that Comcare will not recover from Ms Oliver the cost of any sessions it has already paid for. (If Comcare has paid for sessions which in fact did not relate to Ms Oliver’s compensable condition, I am satisfied it did so by virtue of the actions of Valley Physiotherapy, not through any malfeasance on the part of Ms Oliver.) Nor will Ms Oliver be able to claim the cost of any other sessions she might have undertaken during that period. Nothing in such an order, however, should be construed as preventing Comcare from recovering from Valley Physiotherapy the cost of any sessions it was billed for which did not relate to Ms Oliver’s compensable condition.
The issue of real substance before the Tribunal is what ongoing entitlement to physiotherapy under s 16 Ms Oliver should be accorded beyond 3 January 2015 – the third arm of the reviewable decision. Comcare submitted that Ms Oliver was entitled to no further compensation treatments after this date. Ms Oliver asked the Tribunal for an order that Comcare pay for 75 physiotherapy treatments between 1 January 2015 and 30 September 2016, followed by a tapering treatment regime of physiotherapy, together with a cognitive behaviour therapy course, a Pilates course and a pain management course aimed at helping me learn to self-manage.
The legal framework for determining the issues
An injured employee’s entitlements to medical treatment is determined by s 16 of the Act:
(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.
Section 4(1) defines medical treatment to mean, in part:
(a) …
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner
(c) …
(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
The same section defines therapeutic treatment as including an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
In relation to Ms Oliver’s claims, the parties agreed that, since the physiotherapy had been obtained at the direction of Ms Oliver’s doctor and was provided by a registered physiotherapist, it met the definition of medical treatment in s 4(1); it was therapeutic treatment because it alleviated her pain (see Alamos and Comcare [2014] AATA 629 at [17]-[20]). The two key tests of eligibility for compensation contained in s 16 are:
·are the treatments obtained in relation to her accepted condition? and
·is it reasonable, in all the circumstances, for her to obtain the treatments?
In Alamos Deputy President Constance considered the appropriateness of a program of some 300 physiotherapy sessions supplied to Mrs Alamos over eight years. He noted that the medical evidence suggested the physiotherapy was not medically indicated (notwithstanding support from her GP for the treatment) and provided no long-term improvement in her condition. He observed (at [24]):
Without intending the list to be exhaustive, some of the factors which may be relevant considerations in the circumstances are:
· the benefit of the treatment to the injured worker;
· the long-term effect 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.
In relation to the second arm of the test in s 16, the Tribunal may have regard to the Clinical Framework of the Delivery of Health Services (the Framework): Alamos at [31], Durham and Comcare [2014] AATA 753 at [42]. In broad terms the principles in the Framework for assessing the reasonableness of treatment reflect the decided cases, and particular the factors set out in Alamos and Durham. The Tribunal in Alamos reflected on both the Framework and other decisions of the Tribunal in relation to physiotherapy (at [33]-[36]):
33. One of the stated principles in the Clinical Framework is to “empower the injured person to manage their injury.” It says in part:
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.
34. This is consistent with previous decisions of this Tribunal. In Re Popovic andComcare, the Tribunal said:
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. However in this case any benefit is outweighed by the counter-productive effect with leading the applicant to a dependent state, inhibiting his ability to learn to cope, and embark on pain management programs to assist him with that object. [Authorities omitted].
35. Furthermore, in Chowdhary andComcare, the Tribunal held that:
... there is no evidence of any plan to have physiotherapy treatment accompanied by a course of physical exercise such that the applicant might become re-conditioned and better able to cope with pain and manage a return to work. 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.
36. The Tribunal has found on a number of occasions that regular physiotherapy or chiropractic treatment was not reasonably obtained. In Smith and Telstra Corporation Limited, the Tribunal considered long-term physiotherapy for a back condition which included cumulative soft tissue damage that contributed to disc and facet joint degeneration. The Tribunal found that the physiotherapy was palliative but not reasonable for the employee to have obtained. [references omitted]
In light of these principles, the Tribunal came to the view that it was not reasonable for Mrs Alamos to obtain ongoing physiotherapy treatment.
In Durham the Tribunal was required to consider whether it was reasonable to continue twice-weekly physiotherapy which had been provided to Mr Durham by Comcare for a back condition over some 17 years. Mr Durham contended that the physiotherapy could not cure his condition but would maintain him at a level where he could continue to function and to work. Evidence before the Tribunal suggested that the treatment was primarily passive, did not improve the condition for which he suffered and did not empower him to take a greater role in self-management of his condition. The Tribunal upheld the decision to curtail his entitlement to physiotherapy, finding that there had been no consistent progressive improvement to his back condition over the period he had received physiotherapy; rather, he had become habituated to the treatment.
The medical evidence
There were before the Tribunal some 17 medical reports by Dr Garth Eaton, the occupational physician who treated Ms Oliver between 2002 and 2014. In the most recent of those reports, dated 18 August 2014, he described her condition as a bilateral cervicobrachial pain disorder which has occurred on a background of a well-established occupational overuse injury. He referred to her regular physiotherapy program over many years as being intended to help control her chronic pain and allow her to perform activities of daily living at a reasonable functional level. He added:
As no medication has completely controlled her pain and dysfunction, Ms Oliver has come to rely considerably on physical treatment over time…
While it is accepted that passive physical therapies are not likely to improve the underlying condition responsible for the chronic pain, there are occasions with certain individuals where there is nothing else that provides relief. There is a small group of patients where there is no doubt physical therapy is required to maintain a reasonable quality of life…
Unfortunately her chronic pain is so well-established there is no curative treatment available…
When chronic pain is out of control and Ms Oliver is unable to function adequately her mental health is affected.
In his testimony before the Tribunal, Dr Eaton confirmed that Ms Oliver was one of the exceptional patients who did not respond to the conventional range of pain management treatments. He said that patients in this category sometimes find a particular type of treatment that’s helped them, physiotherapy being one – but there’s plenty of others – and people involved often very strongly believe that it helps them, they’ve got a faith in the practitioner that provides the treatment and often find that that gives them good relief other than through medications… He acknowledged that such people posed quite a dilemma to the usual medical paradigm in that the treatment they responded to did not improve their underlying condition but did provide temporary pain relief and assisted their mental well-being. He conceded that cost of treatment was a factor in resolving such dilemmas.
Dr Eaton made reference to Ms Oliver being dependent on the physiotherapy programme provided by Ms Lad. He also considered that the arrangement whereby Ms Oliver had two sessions of physiotherapy on the one day for her upper body condition wouldn’t have been ideal (noting however that Comcare had approved two sessions on the one day based on the neck and shoulders being separate areas of injury). He also accepted that the physiotherapy treatment provided by Ms Lad appeared to be primarily passive in nature, though it included recommendations for exercises for Ms Oliver to carry out at home.
Ms Oliver also called Prof David Champion, a pain specialist. In a report dated 24 June 2015 he diagnosed a real highly stable chronic regional pain disorder involving both upper limbs extensively. He identified several symptoms in her which he described as average chronic symptoms and physical signs which are highly typical of work related neck and arm pain disorders in various contexts including clerical work.
He offered an overview in his report of the susceptibility of conditions like hers to programs of physiotherapy. He wrote:
I have to conclude that there is not much evidence of benefit in work related arm pain disorders from physiotherapy. That is not to say that there is not benefit in individuals, and it is rather that physiotherapy as a whole on average has not been shown with scientifically acceptable evidence to be beneficial…
I find this situation very difficult in that the Comcare view and pain medicine guidelines are not supportive of resuming physiotherapy but Ms Oliver states the case that she as an individual truly benefits in multiple ways.
In his evidence before the Tribunal, Prof Champion agreed that physiotherapy could provide benefits to patients with short-term pain conditions, but that the evidence for long-term benefit of physiotherapy in chronic work-related neck and arm pain disorders is not strong, in fact it’s very weak. He conceded that Ms Oliver is likely to receive short-term benefit (3 to 4 days) from physiotherapy, including what he called placebo influences. When asked by Ms Oliver what might happen to her well-being if she could no longer afford physiotherapy, he replied
Well, that’s up to you in large measure. If you have a strong sense of injustice then you might well deteriorate and have lower mood and more reliance on medication, but if … I suggested a course of physiotherapy with a view to you taking over, you becoming independent… it would be appropriate and reasonable after such a long history of passive physiotherapy that you be converted to a more active approach…
In commenting on the long history of physiotherapy treatments provided to Ms Oliver by Ms Lad, Prof Champion said it is frankly not appropriate [that] the physiotherapist provides so many treatments without attempts to manage the patient to achieve independence. He agreed that Ms Lad’s treatment regime appeared to be a non-standard approach to physiotherapy treatment.
Dr Philip Vecchio examined Ms Oliver on 12 October 2015 on behalf of Comcare, and produced a report dated 15 October 2015. He diagnosed her with fibromyalgia, and described the causal factors as constitutional. This report exhibits scepticism about the attribution of conditions like hers to occupational overuse syndrome. He wrote:
The current situation and management dilemma presents a middle-aged lady with widespread upper body pain syndrome which simulates fibromyalgia, a common community and constitutional condition for which there is no explanation, has no clear cause and is intimately associated with bodily make-up, psychological orientation, sleep quality, and pain “wiring” and interpretation . Personally, I doubt that there is any substantive occupational basis and the condition is an expression of pain behaviour, muscular spasm and excessive neuromuscular activity and tension.
…
I would dismiss the attribution to nociceptive sensation, occupational overuse and 100% work-associated causation, and attribute the chronic pain experience to parallel unrelated phenomena of constitutional muscular irritability and spasm that can conceivably occur independently of the workplace.
…
I can understand the benefits that Ms Oliver subjectively gains from attending a physiotherapist twice weekly, as it is effectively a deep massage with some therapeutic relaxation and reduction in muscular irritability. However, there is no rational basis for such application and the literature indicates that the science behind this is lacking.
…
I am very concerned that a professional therapist would continue to invite a client back over the decades, with a total of more than a thousand treatments… my strong belief is that the so-called treatment is for an independent constitutional problem of fibromuscular hyperactivity (call it “fibromyalgia”) which has nothing to do with employment, claims or Comcare.
…
This option will likely cause Ms Oliver considerable distress, but the science behind regular physiotherapy is zero and the appropriateness of the interminably long process is dubious, at most.
Prof Champion disagreed in his evidence with Dr Vecchio’s diagnosis of fibromyalgia.
In evidence at the hearing, Dr Vecchio was critical of Ms Oliver’s physiotherapy programme. He said it:
…doesn’t have an end focus, doesn’t have an end point, and merely keeps going and there is a lot of subjective reinforcement and a creation of dependence from that process.
Physiotherapist Mr Harry Papagoras gave evidence about a Clinical Panel Review which he completed in relation to Ms Oliver on 12 May 2014. In that review he reported a phone conversation he had had with Ms Lad on 6 May 2014 in which he discussed the continuation of physiotherapy for Ms Oliver. There he recorded that Ms Lad had acknowledged that Ms Oliver was receiving physiotherapy over a prolonged period, but was showing no overall improvement. He noted Ms Lad’s view that she, Ms Lad:
…has tried to reduce treatment and has discussed reducing and ceasing treatment with the injured worker. She has indicated that the injured worker has a dependency on manual therapy, which was discussed may not be appropriate for the management of chronic pain.
He records that he reached agreement with Ms Lad that Ms Oliver’s treatment should gradually reduce and then cease according to the timetable which was (ultimately) contained in the reviewable decision. He also noted The agreed plan should give the injured worker ample opportunity to progress to full self-management for this chronic condition.
In his testimony he said that the conversation with Ms Lad was conducted on the basis that they were both current practitioners, and that on this occasion it was a very positive discussion… He noted that if there was disagreement between a panel member and the treating practitioner about the future course of treatment, usual practice would be for a further medical report to be commissioned, but that had not been necessary here because of the agreement between himself and Ms Lad. He denied that he had bullied Ms Lad into agreeing to the treatment reduction program.
A written report of Ms Lad, Ms Oliver’s then physiotherapist, dated 5 February 2016 was filed with the Tribunal. Ms Lad herself was due to give evidence at an early stage of the hearing, but withdrew her agreement to appear as Ms Oliver’s witness shortly before she was due to give evidence. As a result her report was not tendered, and assertions to the Tribunal as to her views about the need for an ongoing programme of physiotherapy could not be tested. Of necessity this significantly reduces the weight the Tribunal can give to what were alleged to be her views. For example, Ms Oliver asserted that Ms Lad had given her a very different version of the conversation on 6 May 2014 between Mr Papagoras and Ms Lad. In the absence of any contradictory evidence from Ms Lad herself, the Tribunal accepts the version of events offered by Mr Papagoras.
Is her physiotherapy treatment in relation to the accepted condition?
Dr Vecchio’s evidence was that the physiotherapy being provided to Ms Oliver was for an independent constitutional problem of… “fibromyalgia”… which has nothing to do with employment… This view appears however to relate in part to his philosophical quarrel with the very concept of repetitive strain injury or occupational overuse syndrome:
Logic tells us that muscular strains resolve after a reasonable period, be as a day or so, and do not continue to bother the individual ad infinitum, and are not the cause of permanent withdrawal from the workforce, which may also have a multitude of explanations and causes.
Both Dr Eaton and Prof Champion, on the other hand, were firm in relating her need for ongoing treatment to the condition – an upper body pain disorder – which arose from her employment. Prof Champion’s extensive experience in pain diagnosis and management is particularly persuasive in this regard. Both doctors noted the persistence of the condition over a 30 year period; neither suggested that the original compensable condition had been supplanted by a different ailment.
Comcare drew attention to evidence suggesting that, both in the six-month period highlighted in the reviewable decision and in the subsequent period, most of the physiotherapy Ms Oliver received related to her non-compensable condition. It is, however, difficult to draw firm conclusions about the frequency of physiotherapy undertaken for either condition when the Valley Physiotherapy records are so unsatisfactory. Even if it could be substantiated that physiotherapy was being provided to Ms Oliver for her compensable condition but infrequently, that in itself does not support the contention that those (infrequent) sessions are not provided in relation to her compensable condition.
Accordingly the Tribunal finds that the treatment in question during the period under review has been provided in relation to Ms Oliver’s compensable condition.
Is it reasonable, in all the circumstances, for Ms Oliver to obtain the treatments?
While the evidence before the Tribunal on whether physiotherapy treatment has been provided in relation to her condition is somewhat finely balanced, the evidence on whether that treatment is reasonable treatment for that condition in all the circumstances falls more decisively on one side of the ledger. Unfortunately for Ms Oliver, it falls against a finding that it was.
The factors set out in the decisions in Alamos – together with the principles in the Framework – offer a useful checklist against which to assess how reasonable in all the circumstances ongoing physiotherapy has been for Ms Oliver’s condition.
The long-term effect of the treatment, and its benefit to the worker
These criteria articulated by the Tribunal in Alamos are also reflected in Principles 1 and 3 of the Framework.
Ms Oliver’s evidence was that physiotherapy treatments provide relief from symptoms, and a capacity to engage in activities of daily living, for a period of 2 to 3 days at a time. This position has been largely unchanged since she began seeing Ms Lad in 1988. The physiotherapy has not succeeded in giving her a greater capacity to self-manage her condition over that period. She told the Tribunal that when I tried to increase my load levels [collaboratively with Ms Lad], my condition worsened. Indeed Ms Oliver submitted:
I don’t believe there is a place for problem-solving strategies. I have a chronic pain condition that has persisted for almost 30 years. All I want is a reliable method of pain relief.
Ms Oliver conceded in effect that the only effect of the treatment she had received was the provision of short-term pain relief and the temporary capacity that bestowed to engage in day-to-day activities of normal living. Comcare submitted, and I accept, that:
It is not overstating to say that [Ms Oliver’s physiotherapy] treatment is habitual and that the medical evidence supports dependence… in the subjective sense of reliance upon the relief obtained from the passive form of treatment.
It is unclear as to the extent to which Ms Lad may have encouraged Ms Oliver over the years to transition towards self-management. Ms Oliver herself told the Tribunal that Ms Lad did not very strongly do so, though there was some evidence of other active self-treatment strategies engineered by Ms Lad, such as using a theraband, walking and hydrotherapy. Whatever the reason for the absence of a dynamic of graduated improvement, it is clear to the Tribunal that the long-term effect of the physiotherapy was at best neutral, and at worst disempowering. Indeed, Ms Oliver conceded as much in her final submission, saying I accept that current medical theory and practice is that physiotherapy is no longer considered appropriate for treating and managing long-term pain, and asking that Comcare fund treatment aimed at helping me learn to self-manage.
The medical evidence supported this view about the efficacy of ongoing physiotherapy. Dr Eaton felt that the treatment had led to dependence, and was surprised to learn that Ms Lad’s treatment had been largely passive. He agreed that ongoing passive treatment was not desirable. Dr Vecchio took a similar view. Prof Champion believed that Ms Oliver needed to take a more active approach.
Whether the treatment is likely to cure the injury or significantly reduce its effects
This criterion is reflected in Principle 1 of the Framework. It should be viewed as the converse of the criterion whether the treatment maintains the status quo.
Quite evidently the physiotherapy in the present instance has offered no prospect of a cure of Ms Oliver’s pain disorder, or even a significant reduction of its symptoms, except in a quite short term sense. Ms Oliver however urged on the Tribunal acceptance that she suffered from a chronic injury in relation to which she had been awarded compensation for permanent impairment and non-economic loss under ss 24 and 27 of the Act. In this context, she contended, the purpose of physiotherapy should be viewed as the management of pain associated with a permanent condition and the facilitation of some normal daily activities, including a small amount of work as a consultant, and not the curing of her condition.
It would be an overstatement to say that all treatment for an injury must be curative for it to be considered reasonable to undertake pursuant to s 16: see, for example, ComcareAustralia v Rope (2004) 135 FCR 443. However, in the present circumstances the benefits in the temporary relief of pain must be weighed against the disbenefits of the treatment, among which should be included the delay it has occasioned in Ms Oliver transition to self-managing her condition. In Durham the Tribunal rejected the argument that physiotherapy should be provided where its principal benefit was merely facilitating the injured worker’s day-to-day functionality. Similarly in Bayani and Australian Postal Corporation [2015] AATA 342 the Tribunal considered the relevance of Principle 1 to the situation of an injured worker who have become dependent on physiotherapy, and found (at [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. (Emphasis in original)
The Tribunal there concluded (at [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.
The cost of ongoing treatment
Deputy President Constance’s reference to the cost of treatment in Alamos underscores a line of decisions where a cost benefit analysis has been undertaken to assess the reasonableness of particular treatment. In Comcare v Holt [2007] FCA 405, for example, Mansfield J concluded that a cost/benefit analysis ought to be undertaken. His Honour decided that there may be circumstances where therapeutic treatment will be unreasonable if alternative treatment is available for potentially similar benefit at a lower cost, and he decided that the extent to which such treatment has been undertaken in the past and the degree of its success may also be relevant (at [26]). His Honour added, however, that:
There may be cases… where 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…
In the present case, Comcare submitted that the cost of Ms Oliver’s physiotherapy to date had been more than $71,000, and Ms Oliver did not demur from that figure. Ms Oliver submitted that Comcare should pay for a further 75 physiotherapy treatments during 2015 and 2016, at a cost of over $6,000, as well as further treatments on a schedule reducing in frequency over eight months, together with 12-month courses in cognitive behaviour therapy and Pilates. It must be said that those costs are quite substantial. In the Tribunal’s opinion, to find that these ongoing costs are reasonable against the limited benefits they produce would be to depart from the line of authority suggesting that a higher cost/benefit threshold needs to be met.
Conclusion
I accept the weight of the medical evidence, to the effect that pain medicine guidelines are not supportive of resuming physiotherapy (per Prof Champion). I find that a sustained but open-ended programme of physiotherapy over nearly 30 years has made Ms Oliver dependent on it and discouraged the exploration of less costly alternatives, particularly self-managed ones. I find that physiotherapy does provide her with short-lived quality of life benefits, but that those benefits are at least partly offset by (to adopt the description of the Tribunal in Alamos) the counter-productive effect [of] leading the applicant to a dependent state.
It is difficult to separate the question of what might be regarded in an abstract sense as reasonable physiotherapy under the Act from the actual physiotherapy provided by Ms Lad, given the very long duration of that treatment. The Tribunal entertains serious misgivings about Ms Lad’s treatment regime, and notes that all the clinical witnesses – with the possible exception of Dr Eaton – expressed reservations about it. However, the possibility should be conceded that physiotherapy offered by a different practitioner – treatment, say, that focused on improvement outcomes and which effected greater self-management of her condition – might qualify as reasonable treatment. Nonetheless, the specific treatment for which Ms Oliver has sought recompense under s 16 does not so qualify. Accordingly I find that Ms Oliver’s physiotherapy, in relation to her accepted condition, does not constitute treatment that is reasonable to obtain in the circumstances, pursuant to s 16(1).
Other contentions of Ms Oliver
For completeness, I will deal with a number of contentions made by Ms Oliver during the hearing and in her closing submissions to the Tribunal. She is entitled to a response to these arguments.
·Ms Oliver maintained strongly that the records of accounts submitted and paid which were tendered by Comcare were inaccurate. Instead, she produced a reconciliation of the payments made based on the summons issued to Valley Physiotherapy on 13 September 2016. She sought to have the Tribunal exclude the material produced by Comcare.
Since I have determined that a reconciliation of the two sets of accounts is unlikely to be reliable given the state of the evidence, I have instead opted for an order that such physiotherapy sessions as Comcare has already paid for in the period 9 June 2014 to 3 January 2015 should be treated as compensable payments to which Ms Oliver is entitled. As such, it is unnecessary to resolve the question as to which set of accounts is the more accurate.
·Ms Oliver contended that the principles enunciated in the Framework were intended to govern treatment provided to workers with a curable condition, whereas her condition – being permanent – was not intended to be covered by the terms of the Framework. She felt that the Framework should therefore be disregarded.
The Framework expresses itself, in the Foreword, to be a set of guiding principles for the delivery of health services, designed to support healthcare professionals in their treatment of an injury. I have discerned nothing in the Framework which expressly either includes or excludes workers whose condition is permanent and incurable, though it might be said that the thrust of the document appears to emphasise recovery and rehabilitation. Nonetheless, it is clear that at least some of the principles were intended to apply to people with sustained, long-term injuries. Principle 3, for example, articulates key messages of Empowering the injured person to manage the injury and developing self-management strategies and promoting independence from treatment. It seems evident that such principles could apply to the management and treatment of permanent conditions as much as temporary ones.
In any case, the Framework is not a document the Tribunal is bound to follow. It should be regarded as guidance on the question of what treatment should be regarded as best practice, which in turn throws light on whether the treatment is reasonable pursuant to s 16.
·Ms Oliver submitted that Comcare …accepted liability for my chronic injury and agreed that I have a permanent disability of approximately 20 per cent. Therefore, I submit that [Comcare] is responsible for providing me with treatment.
At first blush it is logical to suppose that a finding that a worker has a permanent impairment arising from her employment might lead inexorably to a permanent entitlement to medical payments addressing the condition causing that impairment. However, that logic is not sustained by an examination of the Act’s architecture. Section 24 gives an employee a right to compensation where a work-related injury results in an impairment which is permanent. The section is closely related to s 27, which additionally entitles an employee who has suffered permanent impairment to compensation in respect of their injury for any non-economic loss arising from the injury or impairment. Together, the provisions represent an entitlement to (generally) one-off payments to compensate an injured worker for compromises to their quality of life occasioned by the injury.
The purpose of s 16 is evidently somewhat different. It is intended to recompense an injured worker for (generally periodic) out-of-pocket expenses occasioned by treatment of their injury. Additional tests for eligibility are imposed beyond those required for payments under ss 24 and 27; the treatment must relate to the injury, and must be reasonable …to obtain in the circumstances. Further restrictions on what qualifies as an eligible payment are contained in subsection (3).
An entitlement to compensation under s 16 is clearly not coextensive with entitlements under ss 24 and 27. For example, a worker who has lost a leg in an industrial accident would certainly be entitled to a payment under s 24 for permanent impairment but is most unlikely to be entitled to ongoing payments under s 16 since there are few treatments that could reasonably be provided for a lost leg. Eligibility for a s 24 or s 27 payment does not, therefore, free an injured worker of the need to demonstrate that a treatment under s 16 is reasonable to obtain in the circumstances.
·Ms Oliver advised the Tribunal early in the hearing that she had intended to call Ms Adele Hamilton, her treating psychologist since April 2000, to give evidence. Due to a misunderstanding, however, Ms Hamilton was not available on the days set down for the hearing. Ms Oliver applied to have the hearing adjourned to another day to allow Ms Hamilton to appear. I declined this request.
The Tribunal had before it a written report of Ms Hamilton dated 27 September 2016. It described the psychological impacts of Ms Oliver’s bilateral arm pain condition and the treatment Ms Hamilton was providing. The report however appeared only marginally probative of the question before the Tribunal, namely whether physiotherapy was reasonable treatment under s 16. Ms Oliver was unable to describe how Ms Hamilton’s evidence would be useful in relation to this question.
The Tribunal’s decision
During the hearing the parties were divided on the question of whether Ms Oliver was entitled to physiotherapy beyond 3 January 2015. Comcare submitted that its reviewable decision – that there should be no entitlement to physiotherapy after the phasing out period of the preceding six months – was the correct or preferable decision; Ms Oliver submitted that her entitlement to physiotherapy should continue indefinitely, given the permanence of her compensable condition.
However, by the time written closing submissions had been received following the conclusion of the hearing, this division between the parties had largely disappeared. Ms Oliver now conceded that physiotherapy is no longer considered appropriate for treating and managing long-term pain, and that it was appropriate for the Tribunal to order a phased reduction in her s 16 entitlements – what she called a slow reduction in my physiotherapy treatments. She proposed a 12-month period over which this reduction should occur. The issue facing the Tribunal had thus transmogrified from whether her physiotherapy should be phased out to how her physiotherapy should be phased out.
Comcare’s position was that the appropriate phasing out period was that specified in its reviewable decision of 4 November 2014: one treatment per fortnight from 9 June 2014 to 3 August 2014 (4 services), followed by episodic review, with up to 8 services between 4 August 2014 and 3 January 2015, and no further treatment beyond the latter date. It maintained that position notwithstanding its view (disputed by Ms Oliver) that Ms Oliver had not availed herself fully of that entitlement. In contrast, Ms Oliver sought an order of the Tribunal that the phasing out should occur prospectively, consisting of
·one treatment per week for one month, then
·two treatments per month for two months, then
·one treatment every three weeks for two months, then
·one treatment per month for three months.
She proposed that this tapering program of physiotherapy be accompanied by a 12 month course of cognitive behaviour therapy with Ms Hamilton, a 12 month Pilates course and a week-long pain management course at the Royal North Shore Hospital in Sydney.
Unfortunately, accepting Ms Oliver’s proposition presents the Tribunal with several difficulties. The first is that there is no evidence before the Tribunal as to the clinical justification for the timetable she proposes. Because her acceptance of the need for a phasing out of her physiotherapy treatment came late in the hearing, the opportunity to ask the medical witnesses how reasonable (in the terms of s 16) such a tapering program might be was missed, though some spoke in general terms about the value of phasing out treatment. By contrast, the evidence of Mr Papagoras, for Comcare, was that the tapering program supported by Comcare was clinically appropriate and had been accepted as such by Ms Oliver’s then physiotherapist, Ms Lad.
The second difficulty in adopting Ms Oliver’s position is that – pursuant to my finding above – ongoing physiotherapy is not reasonable treatment within the terms of s 16, and given the static nature of her condition over many years that conclusion must apply to the physiotherapy being delivered in 2014 with the same force it applies to physiotherapy being delivered to her today. Put another way, if ongoing physiotherapy had ceased to be reasonable in 2014 it would be difficult to justify the Tribunal making an order for physiotherapy to be resumed under s 16 in 2017.
I acknowledge that Ms Oliver maintains that Comcare, having accepted liability for her injury, has an obligation to actively manage the phasing out of her treatment. Against this contention must be set Comcare’s view that it did attempt to engineer a phasing-out of her treatment in 2014/2015, but it met resistance from Ms Oliver to this attempt. Regrettably, Ms Oliver’s late acceptance of the need for a phased withdrawal of physiotherapy does not provide a reasonable basis for the Tribunal to order that Comcare should execute this endeavour afresh.
Accordingly, the Tribunal sets aside the reviewable decision of 4 November 2014 and instead substitutes:
(a)that such physiotherapy sessions as Comcare has already paid for in respect of the period 9 June 2014 to 3 January 2015 should be treated as compensable payments to which Ms Oliver is entitled pursuant to s 16 of the Act; and
(b)Ms Oliver has no further entitlement to physiotherapy (including episodic reviews) pursuant to s 16 from 4 January 2015 to the date of the Tribunal’s decision.
I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
..........................[sgd]..............................................
Associate
Dated: 28 February 2017
Date(s) of hearing: 4/5 October 2016 Date final submissions received: 20 December 2016 Applicant: In person Counsel for the Respondent: Danielle Tucker Solicitors for the Respondent: Sparke Helmore
Key Legal Topics
Areas of Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Causation
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Statutory Construction
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Remedies
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