Onassys and Comcare (Compensation)

[2019] AATA 1338

Onassys and Comcare (Compensation) [2019] AATA 1338 (19 June 2019)

Division:GENERAL DIVISION

File Number(s):      2017/1197 & 2017/1198  

Re:Cristina Onassys   

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:19 June 2019

Place:Sydney

1.In respect of the claim made in Matter No. 2017/1197, the determination of Comcare is set aside and the matter is remitted to Comcare for payment/reimbursement of massage treatment and hydrotherapy charges incurred and which were tendered at the hearing and became Exhibit A4.

2.In respect of the claim in Matter No. 2017/1198, the reviewable decision of Comcare dated 14 July 2016 as it related to the claimed condition of a “chronic pain disorder” is affirmed.

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

Senior Member M J McGrowdie

CATCHWORDS

WORKERS COMPENSATION – shoulder conditions – claim for physiotherapy/massage therapy and hydrotherapy – Applicant in receipt of weekly benefits and paid lump sum compensation – decision under review set aside – claim for Chronic Pain Disorder – insufficient medical evidence – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16 & 19

CASES

Pethes and Comcare (Compensation) [2018] AATA 483

REASONS FOR DECISION

Senior Member M J McGrowdie

19 June 2019

INTRODUCTION

1. The Applicant, Cristina Onassys, was employed to work for the then Australian Quarantine Inspection Service inspecting imported produce and flowers. At times, the Applicant was required to deal with other imports and the provision of training. Her work was heavy and arduous and resulted in her suffering injuries to both shoulders dating back to 2012 with conditions in the shoulders accepted by Comcare, namely a sprain of the right shoulder with bursitis, and aggravation of a partial tear of the left rotator cuff.

2. These conditions were reviewed by Comcare and on 31 May 2016 Comcare determined that the Applicant was not entitled to certain medical expenses, relevantly, physiotherapy and hydrotherapy. Further, on 31 May 2016, Comcare denied liability for a claimed chronic pain condition.

3. The Applicant sought a review by Comcare of these decisions and on 14 July 2016 both determinations were affirmed. The Applicant has applied to the Tribunal for a review of these reviewable decisions.

4. The issues to be determined by the Tribunal are:-

   (i)Whether the Applicant is entitled to receive the costs of physiotherapy (and/or massage) and hydrotherapy; and

   (ii)Whether the Applicant developed a diagnosable condition of chronic pain as a result of her employment.

5. The Applicant has continued to receive weekly compensation and has been paid lump sum impairment compensation in respect of the earlier accepted conditions.

6. The Respondent, in relation to the claim for physiotherapy (and/or massage) and hydrotherapy, raises a dispute as to whether such treatments constitute “medical treatment” and were reasonable to obtain “in relation to the injury”.

7. So far as the physiotherapy is concerned, the Applicant appears to have not obtained such treatment possibly since December 2015. However, it also seems to be the case that the Applicant had massage treatment from October 2017 and continued such treatment on a regular basis at least for a period. The Applicant found such sessions to be beneficial and she was also assisted in developing some home-based exercises. A total of 14 receipts for massage therapy were provided to the Tribunal and Comcare at $75.00 for most sessions. This is a total of about $1,050.00 expended by the Applicant. Whether there are amounts for physiotherapy/massage incurred by the Applicant and not paid by Comcare is not entirely clear but I assume that they are unpaid.

8. In respect of hydrotherapy, the applicant had receipts totaling $181.50 and this included a 20 visit pool pass at $142.00. These hydrotherapy sessions involved the Applicant doing her own exercises in a heated pool environment. The Applicant found these sessions to be of benefit to her in managing her shoulder condition.

9. The Applicant was concerned to have the conditions which exist in her shoulders properly considered notwithstanding the description of them in the accepted conditions by Comcare. There were two sets of MRI studies of the shoulders available. The first set is outlined in reports dated 28 November 2012 and 30 November 2012 which showed tendon tears in the right shoulder with some bursitis and effusion. There were also tendon tears in the left shoulder with bursitis, osteoarthritis and joint arthropathy.

10. The MRI report of 16 April 2014 showed an increase in the tears, muscle atrophy and effusion in the right shoulder and the tears in the left shoulder previously seen, tendonitis and bursitis.

11. In short the Applicant has marked pathology in both shoulders and there is no doubt that the Applicant has genuine and lasting problems in both shoulders.

12. Whether or not these observed pathologies were the result of the Applicant’s work with her employer, the Applicant’s work was at the very least an aggravation of a condition in the Applicant’s shoulders.

13. The Applicant came under the care of Dr Sanki, General Surgeon. In a report dated 19 March 2013 he was of the opinion that “even if one considers that there has been supraspinatus tendon tear prior to the accident then the incident at work was the final element that broke the camels back”. Whilst not a particularly eloquent statement, Dr Sanki was of the opinion that work was a significant contributor.  Dr Sanki had also earlier offered the opinion that the Applicant had suffered a post-traumatic stress disorder.

14. Apparently the Applicant had, prior to the current applications before the Tribunal, brought an application in the Tribunal for psychological injury in respect of workplace conflict but being out of time, did not proceed.

15. There were attempts made to rehabilitate the Applicant back to work but there were issues between the Applicant and her employer where the Applicant felt victimized. The Applicant’s employment was terminated on 15 May 2015 and she has remained out of the workforce since.

16. Dr Matthew Paul, Occupational Physician, examined the Applicant at the request of Comcare and provided a report dated 23 September 2015. He records injury to the shoulders as a result of her work and considered that were it not for her work she would not, despite a degenerative aspect, have developed her condition leading to pain of a chronic nature and “medical retirement”. The doctor’s prognosis was for continuing and persistent pain.  With regard to any continuing physiotherapy and hydrotherapy treatment, Dr Paul didn’t regard these as being useful for her shoulder conditions and that they were being utilized as part of a maintenance program for symptomatic relief only.

17. Dr Paul nonetheless considered that the Applicant had suffered a permanent impairment secondary to her compensable shoulder conditions and that the impairment was likely to continue indefinitely.

18. Dr Kahil, Orthopaedic Surgeon, saw the Applicant for review in 2013 and 2014. He did not consider that the description of the Applicant’s injuries as expressed in the accepted conditions were apt and went on to describe what the findings in the MRI scans were.  This appears in his report of 13 April 2018. Although he did not consider the work-caused osteoarthritis was caused by work, he did accept that the effects of an aggravation continued. He suggested that the Applicant continue with physiotherapy.

19. Dr Sanki has opined that physiotherapy and hydrotherapy provided the Applicant with some relief.

20. The Respondent relied heavily on the reports of Professor Youssef and his oral evidence.  The Applicant challenged the credibility and independence of Professor Youssef and articulated those matters.

21. In short, Professor Youssef considered that the Applicant suffered only a transient aggravation of an underlying degenerative condition in the shoulders which would have been expected to settle within 24 hours or so. Whilst accepting that the Applicant did have conditions in both shoulders, he did not regard physiotherapy or hydrotherapy to be of therapeutic benefit. Professor Youssef was firm in his evidence but in my view his opinion that the effects of work continued for an extremely short period of time and were transient, is at odds with other medical opinion in this matter. I don’t accept the view held by Professor Youssef and don’t consider that it is necessary for me to go into the Applicant’s complaints further. Professor Yousef has expressed an opinion that may be open to him.  I simply do not accept the opinion expressed as being, on the balance of probabilities, an opinion which is to be preferred.

22. The conclusion I have reached is that the Applicant continues to suffer from the ongoing effects of the aggravation of a disease within the meaning of the Act.

    PHYSIOTHERAPY/MASSAGE AND HYDROTHERAPY (MATTER NO. 2017/1197)

23. The Applicant had some expenses for treatment by way of massage which have not been met by Comcare. They are not extensive and perhaps have only been of medium benefit.   I have previously set out the amounts involved.

24. The effects of these modes of treatment have assisted the Applicant to manage her symptoms and would regard them as marginally but sufficiently coming within Principle Three of the Clinical Framework for the Delivery of Health Services – “empowering the injured person to manage their injury….”.

25. On balance, I believe that the expenses incurred were reasonable and necessary and related to the injuries suffered in her employment.

26. I am satisfied that massage therapy qualifies as medical treatment contemplated by the definition of medical treatment in section 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and becomes payable under section 16 of the Act (see: Pethes and Comcare (Compensation) [2018] AATA 483, 13 March 2018).

27. Similarly, I regard the claimed hydrotherapy expenses as incurred to be reasonable and related. I consider that these expenses are also covered by the legislation and at the time they were incurred was of assistance to the Applicant in managing her condition at that time.

28. The Applicant would now, in all likelihood, be more proficient in home-based exercises and other modalities to manage her condition.

    THE CLAIM FOR CHRONIC PAIN CONDITION (MATTER NO. 2017/1198)

29. In a report dated 22 November 2015, the Applicant’s treating specialist, Dr Sanki, expressed the opinion that the Applicant was “… suffering from a chronic pain in her shoulders…”.

30. The Applicant has also been involved in a pain management programme.

31. The Applicant contends that the chronic pain she suffers is secondary to her physical injuries and constitutes a separate condition. This Application (2017/1198) does not extend to a consideration of conflict in the workplace giving rise to a psychological injury, as previously mentioned.

32. Ruth Commisso, Psychologist, in her report dated 24 April 2015 referred to the Applicant as suffering from a “chronic pain condition” however; this was not proffered as a diagnosis by reference to DSM-5.

33. The Applicant has to a degree characterised her chronic pain as a mental issue. I have no doubt that the Applicant does experience pain in her shoulders which has persisted and no doubt, causes her a great deal of mental anguish.

34. Dr Synnott, Psychiatrist, examined the Applicant at the request of the Applicant’s former employer and considered that the Applicant’s symptoms met the diagnostic criteria for a major depressive disorder/adjustment disorder. However, this is not a diagnosis for which the present claim can encompass. This claim is for a separately diagnosable condition as a chronic pain condition.

35. It seems that all medical reports accept that the Applicant does suffer pain and that the pain is persistent. Accordingly, the Applicant does have an organic basis for her complaints of pain.

36. The Respondent has relied on the reports of Dr Hong and his oral evidence. The Applicant challenged Dr Hong’s credibility and objectivity and asserted that Dr Hong was biased in favour of the Respondent, who had sought his opinion.

37. Dr Hong has diagnosed the Applicant with an adjustment disorder secondary to conflicts in the workplace. I accept that the Applicant may suffer an adjustment disorder but that is not the claim here.

38. Also Dr Sharah, treating psychiatrist, diagnosed post-traumatic stress disorder due to the Applicant’s response to a conflict in the workplace when the Applicant felt victimised. Dr Sanki had also referred to a post-traumatic stress disorder in accordance with the diagnosis of Dr Sharah. These events, however are not the subject of this claim even though the Applicant may have suffered a post-traumatic stress disorder as a result of her treatment by her employer. Dr Hong considered the Applicant has not fully recovered from significant psychological symptoms resulting from her perceived treatment in the workplace. The opinion of Dr Hong that the Applicant suffers from a chronic adjustment disorder or alternatively major depression is consistent with the opinion expressed by Dr Synnott.

39. Leaving aside the evidence of Dr Hong, there just isn’t the evidence to reach the conclusion that the Applicant suffers a separately diagnosable condition of chronic pain.  That is a condition which has separate diagnostic criteria as referred to in DSM-5 and requires such an opinion to come from a psychiatrist or other suitably qualified health profession. It is not simply a case of saying that because the Applicant has pain which has persisted, and in that sense chronic, that the Applicant suffers the separately diagnosable condition of a chronic pain condition. 

40. The fact that Dr Hong did not support the Applicant’s claim for a diagnosable condition of chronic pain does not really assist with the question, for even if Dr Hong’s evidence was completely discounted as the Applicant feels it should, the balance of the evidence does not provide adequate support for the claim limited to a chronic pain disorder.

    DECISIONS

41. In respect of the claim made in Matter No. 2017/1197, the determination of Comcare is set aside and the matter is remitted to Comcare for payment/reimbursement of massage treatment and hydrotherapy charges incurred and which were tendered at the hearing and became Exhibit A4.

42. In respect of the claim in Matter No. 2017/1198, the reviewable decision of Comcare dated 14 July 2016 as it related to the claimed condition of a “chronic pain disorder” is affirmed.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

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Associate

Dated: 19 June 2019

Date(s) of hearing:	23 & 24 April 2018
Applicant:	In person
Counsel for the Respondent:	Ms K Slack
Solicitors for the Respondent:	Australian Government Solicitor