Oliver and Comcare (Compensation) - [2017] AATA 252

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 289
Secondary 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…

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.

Continue reading Oliver and Comcare (Compensation)

Details

AGLC: Oliver and Comcare (Compensation) [2017] AATA 252
Case: [2017] AATA 252
Decision Date: 28 February 2017

CaseChat Overview and Summary

This matter concerned an appeal by Ms Oliver against a decision by Comcare to curtail her entitlement to ongoing physiotherapy treatment for a bilateral cervicobrachial pain disorder, which had developed on a background of an occupational overuse injury. The dispute centred on whether the physiotherapy treatment was reasonable to obtain under section 16 of the relevant legislation, given that the treatment was passive, did not improve the underlying condition, and Ms Oliver had become dependent on it for pain relief and to maintain a reasonable quality of life. The case was heard by Deputy Gary Humphries P.

The legal issues before the court were whether the physiotherapy treatment was "in relation to" Ms Oliver's accepted condition, and whether it was "reasonable to obtain" in the circumstances. Specifically, the court had to consider the weight to be given to medical evidence suggesting that while passive physiotherapy might not cure the underlying condition, it could provide relief and maintain a reasonable quality of life for certain patients with chronic pain. The court also had to determine the relevance of Ms Oliver's arguments regarding the accuracy of Comcare's accounting records for past treatments, the applicability of treatment frameworks to permanent and incurable conditions, and the relationship between entitlements for permanent impairment under sections 24 and 27 and ongoing treatment under section 16.

The court reasoned that while Ms Oliver's condition was permanent and incurable, and she relied on physiotherapy for relief, the entitlement under section 16 required the treatment to be reasonable to obtain. The court noted that the treatment had not led to any consistent progressive improvement or empowered Ms Oliver towards self-management, and she had become habituated to the treatment. While acknowledging the exceptional nature of Ms Oliver's response to treatment, as described by her treating physician, the court found that the passive nature of the physiotherapy and its lack of long-term benefit meant it was not reasonable to continue indefinitely under section 16. The court also determined that eligibility for permanent impairment compensation did not automatically confer an ongoing entitlement to all treatments under section 16.

The court ordered that physiotherapy sessions already paid for by Comcare between 9 June 2014 and 3 January 2015 would be treated as compensable payments. However, it set aside the decision to allow ongoing physiotherapy treatment beyond that period, substituting it with a decision that such ongoing treatment was not reasonable to obtain under section 16.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.