Pethes and Comcare (Compensation) - [2018] AATA 483

Pethes and Comcare (Compensation) [2018] AATA 483 (13 March 2018)
Division:GENERAL DIVISION
File Number(s): 2016/3444
Re: Eva Pethes
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries
Mark Hyman, Member
Date:13 March 2018
Place:Canberra

The Tribunal affirms the reviewable decision dated 12 May 2016.
........................................................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – whether massage reasonable treatment – factors to be considered in determining this issue – treatment more likely to be considered reasonable where its benefits are substantial and its cost is low; it is effective; it is active and promotes self-management of the compensable condition; it is consistent with the principles in the Framework; and it is of limited duration – whether massage is medical treatment – role of purely palliative treatment – whether massage obtained in relation to the accepted condition – reviewable decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 16
Cases
Alamos and Comcare [2014] AATA 629
Bashar v Comcare [2002] FCA 837
Bayani and Australian Postal Corporation [2015] AATA 342
Chowdhary and Comcare [1998] AATA
Comcare Australia v Rope (2004) 135 FCR 443
Comcare v Watson 46 ALD 481
Comcare v Holt [2007] FCA 405
Durham and Comcare [2014] AATA 753
Jorgensen and Commonwealth (1990) 23 ALD 321
Kennon v Spry (2008) 238 CLR 366
Manns and Comcare [2012] AATA 462
Popovic and Comcare (2000) 64 ALD 171
Rope and Comcare [2013] AATA 280
Rope and Comcare [2018] AATA 42
Topping and Comcare [2015] AATA 525
Secondary Materials
Transport Accident Commission and Worksafe Victoria, 'Clinical Framework for the Delivery of Health Services' (Clinical Framework, Health Service Group, Transport Accident Commission and Worksafe Victoria, June 2012)
REASONS FOR DECISION
Deputy President Gary Humphries
Mark Hyman, Member
13 March 2018
INTRODUCTION

Mrs Eva Pethes, the Applicant, during her employment as a General Clerk in the Payroll Division of CSIRO, was exposed to cigarette smoke from her co-workers and to paint fumes when her employer undertook renovations. Comcare, the Respondent in these proceedings, accepted liability for Mrs Pethes’ condition of aggravation of sensitive respiratory tract (which arose as a result of this exposure) with a date of injury of 29 May 1989. Subsequently, a delegate of Comcare, on 10 March 2016, determined that compensation was no longer payable for ongoing massage.
In a letter dated 13 April 2016, Mrs Pethes requested a reconsideration of this determination. On 12 May 2016, a Comcare Review Officer affirmed the determination of 10 March 2016. The Review Officer was not satisfied that the massage therapy was reasonable medical treatment for Mrs Pethes to obtain in relation to her accepted condition of aggravation of sensitive respiratory tract.
By way of an application to the Tribunal on 4 July 2016, Mrs Pethes is now seeking a review of Comcare’s decision of 12 May 2016 affirming the determination made on 10 March 2016 denying liability, under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), for compensation for medical treatment of ongoing massage therapy treatment.
Mrs Pethes has retired from the workforce. She was aged 76 at the time of the hearing.
ISSUES
For the purposes of determining Comcare’s liability under the Act for Mrs Pethes’ massage treatment, it falls upon the Tribunal to decide:
(a)whether the remedial massage was medical treatment;
(b)whether the remedial massage was obtained in relation to Mrs Pethes’ accepted condition; and
(c)whether the massage therapy was reasonable in all the circumstances.
THE RELEVANT MEDICAL EVIDENCE
Medical report, Dr John Sanderson, General Practitioner, 29 April 2003
In his medical report dated 29 April 2003, Dr John Sanderson, Mrs Pethes’ General Practitioner, associated Mrs Pethes’ thoracic spine pain with her compensable injury, and noted that she has had an intractable cough for over 15 years because of her workplace injury. He stated that a CT scan conducted on 29 April 2003 showed that the bone changes to Mrs Pethes’ spine are entirely due to sclerotic change secondary to violent coughing over 15 years (original emphasis).
Medical reports, Dr Caroline Khin-Chen, General Practitioner, 17 April 2012, 17 February 2015, 2 February 2016 and 19 April 2017
Dr Khin-Chen has been Mrs Pethes’ general practitioner since 27 April 2010. In her medical report dated 17 April 2012, Dr Khin-Chen stated that Mrs Pethes presented with low back and bilateral hip pain that had been worsening over time. Mrs Pethes told Dr Khin-Chen that she had suffered from severe spasms of cough for about 20 years because of complications arising from work related passive smoking, and that she had chronic upper and lower back pain due to degenerative changes in the spines (sic) secondary to the severe spasms of cough for many years.
In spite of various forms of treatment, Dr Khin-Chen noted in her medical report that Mrs Pethes’ symptoms appear to have plateaued with no apparent deterioration or improvement despite the treatment and remarked that it is likely that her condition would persist.
Dr Khin-Chen noted that Mrs Pethes had received the following forms of treatment:
Mrs Pethes has been treated with antihypertensive medication for her fluctuating blood pressure due to violent coughs. But this has now been discontinued. She has also tried corticosteroid nasal spray to reduce irritation in the nasal passage, but the treatment proved to be of no effect and has been terminated. However, she has continued her weekly massage therapy treatment, taking of analgesics – Panadol and Nurofen for her back pain when required and the use of ventolin also on an as required basis.
Dr Khin-Chen expressed the view that the medical treatment that Mrs Pethes had received was reasonable. She also recommended yoga classes and noted that if Mrs Pethes’ condition worsens, she would recommend that Mrs Pethes obtain blood tests, a nasal swab, an imaging like x-ray, CT and specialist reviews.
In her supplementary medical report dated 2 February 2016, Dr Khin-Chen recommended the following treatment in respect of Mrs Pethes’ upper and lower back pain, stiffness and headaches resulting from her violent coughs:
Massage therapy once a week to alleviate her headache and her back stiffness and pain and to improve her mobility and wellbeing. It is hoped that the treatment also relieves her anxiety level.
Mrs Pethes reported to Dr Khin-Chen that she had experienced marked improvement in her back pain and stiffness after massage and the effect would last 1 or 2 weeks, and said that her mobility increases after each treatment, while noting the worsening back stiffness and pain if she does not have her massage treatment for 3 weeks.
Dr Khin-Chen observed no psychosocial factors or barriers that may have impacted or are impacting on [Mrs Pethes’] progress towards treatment goals.
In her further supplementary medical report dated 19 April 2017, Dr Khin-Chen noted that Mrs Pethes continues to suffer the effects of the same accepted condition despite the passage of time. In relation to Mrs Pethes’ treatment, she wrote:
Mrs Pethes has seen a number of respiratory physicians including Dr Paine and Dr Nogrady. Although she has tried various treatment regimes, there have been no significant changes in her condition.
Medical reports of Dr Angus Forbes, Occupational and Environmental Physician, dated 24 November 2016; 10 March 2017; and 12 January 2018.
In his medical report dated 24 November 2016, Dr Forbes diagnosed Mrs Pethes as suffering from paroxysmal cough with no identified pathology. Although he reported that the origins of Mrs Pethes’ back condition are age related degenerative changes he observed that her pain appears to be primarily muscular in nature and is worsened by her coughing.
He also noted that Mrs Pethes’ symptoms are relieved by stretches which she performs at home. Mrs Pethes reported to Dr Forbes that if she does not do these for two or three days her pain worsens. In relation to massage, Mrs Pethes reported that it helps keep her symptoms “Bearable”. She added that massage therapy provides some temporary relief in back pain and reduced headaches.
While Dr Forbes acknowledged that massage therapy would provide symptomatic relief from back pain, he said that it could neither cure Mrs Pethes’ back condition nor her respiratory condition.
He noted, instead, that Massage therapy is likely to improve her back pain for a period of hours to days. He stated, however, in order for massage to have these short term effects, it would be required on a permanent basis weekly. In addition, he opined:
The management of back pain through passive therapy such as massage may provide some short-term relief. An appropriate spinal rehabilitation program including core strengthening exercises may offer further improvements. However, given the duration of Ms Pethes’ pain and her self-reported exercise tolerance it is unlikely that there would be significant improvement.
He referred to two research articles to support his views. He confirmed these conclusions in a supplementary medical report of 12 January 2018 where he noted that It is not biologically plausibility (sic) that massage therapy will alter the cough itself.
In the live evidence he gave the Tribunal, Dr Forbes re-iterated many of these conclusions. Mrs Pethes’ evidence, to the effect that she thought massage contributed partly to her diminished pain but so did stretching and a change to her medication regime, was put to Dr Forbes. On this basis, he reasoned that massage gives only an occasional benefit to her and that this benefit is not a predictable outcome.
MRS PETHES’ EVIDENCE
Mrs Pethes received weekly massage treatment from 1994 to 2016. She gave evidence of the benefits she obtained from this treatment. Most importantly, she told the Tribunal that massage lessens her pain and improves her mobility. She told the Tribunal:
I know that the massage therapy that I need will not restore me to health, nor stop the cough, nor eliminate the muscle pain, but it lessens the pain and helps me to move a bit more freely.
She said that in the past, her debilitating coughing, fits and fatigue prevented her from living a normal life and said that I had to stop driving for a while. Again, she said that massage alleviates the pain and it makes it easier to move around and that I am not as bad as I used to be.
When asked by the Tribunal how confident she is that massage therapy has effected this improvement in her pain levels, she replied that I can’t be entirely sure because there are other factors, and said that I think massage is a part of it. In relation to her experience of pain, Mrs Pethes said that her pain from time to time lessened and then flared up again – it fluctuated. When asked if her pain started to moderate from 1994, the year she first started to obtain massage treatments, she said it fluctuated and that even though I received the massage, it could flare up.
Later, the Tribunal drew Mrs Pethes’ attention to the ‘Progress Reports’ of Brindabella Natural Health Care. The entry of 13 August 2009 records: PX even after Gardening while the entry of 1 October 2009 notes that Mrs Pethes had been Gardening all day. Mrs Pethes told the Tribunal that she had probably undertaken a little bit of weeding and watering the garden. She said she never did all day gardening.
The Tribunal then took Mrs Pethes to the statements of Dr Forbes in his medical report of 24 November 2016 in which he said that Mrs Pethes reports she can do vacuuming and washing up. She feels too “tired’’ and “dizzy” to do more heavy work. When asked if she regarded gardening as being heavy work, she replied:
It depends on what sort of gardening… I do go out to the garden quite a bit, but it doesn’t mean that I’m gardening all day… I love to be out there and just do light tasks.
When asked if she could get down and weed in the garden, she said that it depends on the day… sometimes I can do it but sometimes I can’t. She said that if I have excessive coughing, I feel tired, and I can’t do it.
Mrs Pethes was then asked to explain how massage makes a difference to her functional ability. She told the Tribunal that I think it just makes it generally easier for me to move around and said that the pain in her back, after massage, feels a bit better. She agreed that the purpose of massage is relief of pain and greater mobility. Again, in relation to the pain she suffers, she said that these days it is much better and that my movements are a little bit smoother. When asked if she could do these tasks even without massage, she said:
It depends… sometimes it’s more painful, sometimes it’s more restricted… and other times it’s a little bit easier, it’s very hard to just pin-point what happens…
Mrs Pethes agreed with the Tribunal’s summary that the effects of massage on her function were random – sometimes she could do things in a week when she had not had massage, and sometimes she could not.
THE LEGISLATION
An injured employee’s entitlement 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…
Furthermore, section 4(1) 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.
CONSIDERATION
Is massage treatment medical treatment?
Finn J observed in Comcare v Watson 46 ALD 481 at 484:
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.
The applicant [Comcare] has submitted that a treatment can only be "therapeutic" if its object is to cure a disease or injury. Though some dictionary definitions do emphasise the "healing or curative" connotation of the words "therapy" and "therapeutic": see eg Shorter OED, 3rd Ed; the latter's use in this context encompasses the alleviation of the pain of an injury. This view is consistent with the s 4 definition of "therapeutic treatment" which includes "treatment given for the purpose of alleviating an injury": (emphasis added). The Shorter OED, for example, defines "alleviation" as "the action of lightening ... pain". That usage is an appropriate one to apply here given the s 4 definition itself. And it permits a construction which accords with the beneficial purposes of the legislation: see Thiele's case, 380- 381.
The parties, in the course of the proceedings, did not dispute that remedial massage qualifies as medical treatment under s 4(1). It is apparent that the definition in s 4 of medical treatment contemplates treatment by an osteopath, masseur or chiropractor as qualifying under s 16(1), if other conditions in the Act are met, including that the treatment is given by, or under the direction of, an appropriately qualified person.
Is the massage treatment obtained in relation to the accepted condition?
Counsel for Comcare submitted that Mrs Pethes’ massage treatment was not in relation to her accepted condition. The Tribunal has considered whether the massage is in relation to Mrs Pethes’ accepted condition of aggravation of sensitive respiratory tract. For the brief reasons set out below, the Tribunal considers that it is.
The Courts have conferred a wide meaning to the phrase in relation to. In Kennon v Spry (2008) 238 CLR 366 Kiefel J (as she then was) stated at [217] that in relation to… is of wide and general import and should not be read down in the absence of some compelling reason to do so.
In Manns and Comcare [2012] AATA 462, the following remarks were made at [22] in regards to the interpretation of s 16(1):
The phrase ‘in relation to’ has a broad meaning that is not confined to a direct or proximate relationship of cause and effect; it simply signifies that there is some relational connection between the two matters. Presently, the relational connection is between the medical treatment Mrs Mann obtained and the right knee injuries for which Comcare accepted liability. The closeness of the relational connection must be ascertained ‘by reference to the nature and purpose of the provision in question and the context in which it appears’. These are matters of degree, to be determined on the evidence applying the reasonable satisfaction civil standard without resort to indefinite evidence or indirect inference. (footnotes omitted)
Again, in Topping and Comcare [2015] AATA 525, the Tribunal stated at [28]:
…treatment may be therapeutic notwithstanding that it merely addresses or reduces symptomatology without actually being curative of the primary condition. In Luttrell and MRCC [2012] AATA 692 an applicant with a compensable psychiatric condition was prescribed a drug (Lyrica) for a non-accepted lateral cutaneous nerve syndrome which caused pain in his thigh, making sleep difficult and thus worsening his psychiatric symptoms. In that case the Tribunal found that there was a relational connection between his psychiatric condition and the treatment with Lyrica, because the Lyrica produced a consequent indirect reduction in the psychiatric symptoms.
In the course of the proceedings, Counsel for Comcare pointed to Mrs Pethes’ medical history and the contemporaneous notes of Dr Nogrady. On 1 April 2003, for example, Dr Nogrady observed: The cough… was no worse than usual but the pain became progressively worse and in the last month has become markedly worse. Counsel for Comcare said that if a relational connection between Mrs Pethes’ cough and the pain in her back existed, then the cough and the pain should have occurred together, in tandem. The Tribunal was told that because it would seem the two events do not occur in direct cause-and-effect relationship with each other, it cannot be said that massage treatment for Mrs Pethes’ back pain is in relation to her cough.
The Tribunal does not accept this argument, partly because the evidence of Dr Forbes is clear enough: he told the Tribunal that, although the majority of Mrs Pethes’ pain symptoms are attributable to degenerative change, her coughing is nonetheless an exacerbating factor which accounts for at least some of her pain symptoms.
In accordance with the relevant authorities, the Tribunal accepts that the relational connection, however slight, between Mrs Pethes’ coughing, her back pain and the massage treatment is sufficient to demonstrate that massage can be regarded as being in relation to her compensable condition. The question, however, of the degree to which these treatments are capable of treating Mrs Pethes’ accepted condition goes to the question of whether massage is reasonable treatment in accordance with s 16 of the Act.
Is massage treatment reasonable for Mrs Pethes to obtain?
Previous decisions
The ultimate issue facing the Tribunal, therefore, is whether Mrs Pethes’ massage treatment is reasonable for her to obtain in the circumstances.[1]
[1] This and the following 15 paragraphs are adapted from the Tribunal’s summary of the relevant case law in its decision of Rope and Comcare [2018] AATA 42.

Section 16, and the tests it imposes, does not require reasonableness to be considered in absolute terms but in view of the circumstances the particular employee faces – what may be considered as reasonable treatment in the circumstances of one person suffering a certain injury may not be reasonable treatment in the circumstances of another person suffering the same injury. Gray J in Jorgensen and Commonwealth (1990) 23 ALD 321 at [12] said, in relation to s 16(1):
The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of the applicant for compensation.
Indeed the language of s 16 imports a notion of cost/benefit analysis in evaluating how reasonable a particular treatment might be to the circumstances of the employee concerned; this involves weighing the cost of obtaining the treatment against the benefits conferred. In ComcareAustralia v Rope (2004) 135 FCR 443, Mrs Rope claimed the cost of travel from Canberra to Townsville to obtain a unique form of psychological treatment – one not available where she lived. Stone J commented at [17]:
I accept, however, that the reference in s 16(1) to treatment being “reasonable to obtain in the circumstances” is a clear indication that, in this case, the Tribunal was required to engage in a costs/benefit analysis in relation to PNI treatment. The Tribunal needed, among other things, to weigh the benefit of PNI treatment against the cost of obtaining it (given that the treatment was available only in Townsville), taking into account any other treatment available to Mrs Rope. I am not, however, convinced that the Tribunal neglected to do this…
In that case, the Tribunal decided that the cost of such travel was reasonable in light of the benefit it conferred on Mrs Rope, and the Federal Court did not disturb that finding of fact.
The question of reasonableness was considered also by Madgwick J who, in Bashar v Comcare [2002] FCA 837 at [11]-[12], highlighted the importance of evaluating the broader context of the employee concerned when considering the question of reasonableness:
In the treatment of work injuries and in cases about compensation for such injuries, few things are more common than that medical treatment of one kind or another that has been undertaken does not work or even, commonly enough, worsens the condition complained of. There was ample material, indeed, it would seem an overwhelming preponderance that the physiotherapy treatment, although provided so regularly and for so long, was nevertheless aimed at producing beneficial results in relation to the applicant's complaints that he alleged stemmed from his compensable injury. If it were the case that these had had no effect in relieving his pain, this alone would not resolve the matter and it would not mean that the physiotherapy treatments were not treatment under the Act.
The fact if it were a fact, that they had had no discernible effect would be a matter that would bear, and might bear powerfully in the context of all of the evidence, on the question of whether it was, or continued to be, reasonable for the applicant to obtain such treatment in the circumstances. But those circumstances would be all the circumstances in which the applicant found himself.
Some key decisions, both of the Tribunal and the Federal Court, are apposite to the present matter. In Bayani and Australian Postal Corporation [2015] AATA 342 the Tribunal considered the principles found in the Clinical Framework for the Delivery of Health Services (the Framework). It referred to the adoption by most Australian jurisdictions’ workers compensation and motor accident compensation agencies of the Framework as principles to guide health care professionals in the treatment of injury. The five principles enunciated by the Framework are:
Measure and demonstrate the effectiveness of treatment
Adopt a biopsychosocial approach
Empower the injured person to manage the injury
Implement goals focused on optimising function, participation and return to work
Base treatment on the best available research evidence
In relation to Principal One of the Framework, Senior Member Handley observed, in relation to the applicant in Bayani 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)
On this basis, inter alia, he 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.
In Popovic and Comcare (2000) 64 ALD 171, the applicant claimed for physiotherapy which provided short-term relief of his symptoms, including affording better sleep making him less depressed and less irritable on the succeeding day. The Tribunal found 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 ; 46 ALD 481 at 484 ; 154 ALR 173 at 176 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: Re Jorgenson and Commonwealth (1990) 23 ALD 321.
The Tribunal went on to say at [30] that the applicant’s case is one in which, while temporary relief can be reasonable treatment, it has become unreasonable…
In Chowdhary and Comcare [1998] AATA 448 the Tribunal commented, with respect to a claim for physiotherapy treatment under s 16 at [53]:
In particular, there is no evidence of any plan to have the 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.
In Alamos and Comcare [2014] AATA 629 the Tribunal rejected a claim for physiotherapy on the basis that short-term alleviation of the applicant’s symptoms, is not medically indicated and will not provide long-term improvement in [the applicant’s] condition (at [39]). On a similar basis, the Tribunal in Durham and Comcare [2014] AATA 753 rejected a claim for physiotherapy – partly on the basis of a cost/benefit analysis – even though evidence had been led that this treatment, while ineffective in overcoming the applicant’s pain, did allow him to continue working.
In Comcare v Holt [2007] FCA 405 Mansfield J concluded that a cost/benefit analysis, of the kind recommended in Rope, 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…(at [26])
In Topping and Comcare [2015] AATA 525 the Tribunal, being mindful of the Framework, at [47], rejected Mrs Topping’s claim for massage and osteopathy under s 16, finding that:
…the therapies have become a ritual, fostering a dependence on her part to them which could be inhibiting her ability to self manage her condition and foster future self-reliance.
In Rope and Comcare [2013] AATA 280, the Tribunal decided that Mrs Rope was entitled to compensation under s 16 in respect of the costs of attending mindfulness classes as directed by her treating doctor and supported by her psychologist. It determined that the classes fell within the meaning of medical treatment under s 4(1) and for the purposes of s 16 was reasonable treatment – even though the medical treatment could not lead to permanent improvement of the compensable injury. Member Webb commented at [51]:
The proposition that a plan for the permanent improvement of an injury is required in order to find that a particular form of medical treatment is reasonable for an injured employee to obtain lacks merit. Medical treatment and therapeutic treatment, for the purposes of the 1988 Act, consistent with the definition of those terms in s 4(1), may include treatment to alleviate the symptoms of an injury and palliative or preventative treatments (Bashar v ComcareAustralia [2002] FCA 837 at [9]). Treatments of that kind are unlikely to appear in a plan for the permanent improvement of an injury. Some injuries cannot be permanently improved, and I do not accept that it would not be reasonable for a permanently injured employee to obtain palliative or preventative medical treatment on the basis that the treatment was not part of a plan for permanent improvement.
The principles for determining the limits of s 16 set out in the above cases, at times, appear to pull in slightly varying directions. As this Tribunal remarked in its decision in Rope and Comcare [2018] AATA 42, however, some key observations can nonetheless be extracted from them regarding what will or will not be considered reasonable treatment. Broadly speaking, treatment is more likely to be considered reasonable where:
·its benefits are substantial and its cost is low;
·it is effective, i.e. achieves measurable benefits;
·it is active and promotes self-management of the compensable condition;
·it is consistent with the principles in the Framework; and
·it is of limited duration.
On the other hand, treatment is less likely to be considered reasonable where:
·its benefits are insubstantial and its cost is high;
·it is passive and promotes dependence on itself; and
·it is ongoing and indeterminate.
Consideration
Much of the evidence that Mrs Pethes gave to the Tribunal pointed to the fact that massage treatment has had the primary effect of lessening her back pain. She said, for example, that massage makes it generally easier for her to move around and helps her to feel a bit better. However, there is no clear evidence that massage therapy improves her functional ability in any substantial way. When asked by the Tribunal if she could perform certain tasks even without massage, Mrs Pethes said that it depends… sometimes it’s more painful, sometimes it’s more restricted… and other times it’s a little bit easier, it’s very hard to just pin-point what happens… The evidence suggests that the chief benefit of massage for Mrs Pethes is the temporary relief of her back pain. The evidence also suggests, however, that the connection between massage treatment and the lessening of her back pain is not always clear.
The medical evidence supports the view that massage therapy is directed mainly towards the short term relief of Mrs Pethes’ pain and does not have any long term effects. Dr Forbes, for example, opines that The management of back pain through passive therapy such as massage may provide some short-term relief. In addition, in relation to her respiratory condition, Dr Khin-Chen states that Mrs Pethes’ symptoms appear to have plateaued with no apparent deterioration or improvement despite the treatment and that Mrs Pethes’ condition is likely to persist. The evidence indicates, therefore, that massage therapy did not, and cannot, have any curative effect on Mrs Pethes’ accepted respiratory condition or her back pain. While these observations are not in themselves fatal to Mrs Pethes’ claim, they influence a number of factors relating to the broader consideration of whether her massage treatment is reasonable to obtain in the circumstances.
Firstly, Mrs Pethes’ massage treatment does not seem to conform very well to the principles in the Framework.
The Tribunal acknowledges that the Framework is not mentioned in the Act; to the degree of any inconsistency, clearly the Act would prevail. However, where the legislation is silent as to the meaning of reasonable in s 16, the Tribunal may consider widely-applied management instruments in the field of workers compensation to assess the contextual meaning of that word. The Framework fits that requirement: see for example Durham, Topping and Bayani. It is the working tool used by rehabilitation services of most Australian governments at this time. Nor can the Tribunal agree that the Framework is an inappropriate reference tool for a retiree, though some modification of its focus needs to be considered when applied in this context, as will be seen later.
Principle One states that Treatment should result in a measurable benefit to the injured person. It states, furthermore, that the following outcomes may be demonstrations of the effectiveness of an intervention:
a change in participation at home – measurable improvement with specific household tasks. For example, going from vacuuming one room in a day to vacuuming three rooms in a day.
As already stated, by her account, massage therapy does not substantially change Mrs Pethes’ functional ability. Although massage provides her with greater mobility and pain relief, Mrs Pethes agreed with the view that its effects on her function are random. The evidence suggests that the effectiveness of her massage treatment, on the whole, cannot be measured and demonstrated in the sense outlined by Principle One.
Principle Four, furthermore, requires the implementation of goals focused on optimising function, participation and return to work. As mentioned above, in the context of Mrs Pethes’ claim, because she is a retiree, the focus of Principle Four, in so far as it relates to an injured person’s return to work, must be modified.
In order to satisfy this principle here, it is necessary that any compensable medical treatment that Mrs Pethes’ receives should assist her to set goals optimising functionality and participation in daily domestic and social activities, though not necessarily with the objective of returning to work. Principle Four notes that goals should be specific, measurable, achievable, relevant, and timed. An example of this type of goal includes to Independently manage preparing breakfast three mornings per week within four months. There is no evidence to suggest that any specific goals have been implemented in reference to Mrs Pethes’ massage treatment and, on the whole, her treating doctors did not seem to have envisaged that massage would go beyond the temporary relief of pain.
Principle Three requires the injured person be empowered to manage their injury. It states that The key measure of treatment effectiveness is the ability of the injured person to manage their condition as independently as possible… The medical evidence of Dr Forbes suggests that because massage therapy is a passive treatment, it is not likely to encourage independence. He suggested that various self-management strategies include self-massage, for example, by using Massage Balls or a Foam Roller. Dr Forbes’ evidence suggests that massage therapy, in Mrs Pethes’ circumstances, does not sit well with the Framework.
However, even if the Framework could be satisfied to some degree, the Tribunal would still be required to undertake a more global cost/benefit analysis in relation to the reasonableness of Mrs Pethes’ massage treatment: see for example, Comcare v Holt [2007] FCA 405.
Mrs Pethes has obtained 687 massage sessions from 7 March 1994 to 29 January 2016. Comcare produced evidence indicating that the cost of Mrs Pethes’ weekly massage treatment for the remainder of her life expectancy would be $53,508.99. (There was no dispute, in the course of the proceedings, about the calculation methods employed by Comcare to arrive at this figure.)
As already stated, the evidence indicates that massage treatment cannot have the effect of improving her compensable condition. In addition, the massage treatment does not align well with the principles in the Framework. The evidence also suggests that the benefits of massage are merely short-term and that it does not lead to any substantial improvement in Mrs Pethes’ functionality. The overall effect of these factors is that, on the whole, the benefit that massage therapy provides to Mrs Pethes is ephemeral and slight but comes at a substantial ongoing cost. Therefore, the Tribunal finds that massage therapy is not reasonable treatment for Mrs Pethes to obtain in the circumstances.
CONCLUSION
Accordingly, the reviewable decision dated 12 May 2016 is affirmed.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries and Mark Hyman, Member.

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Associate
Dated: 13 March 2018

Date(s) of hearing: 12-13 February 2018

Date final submissions received: 13 February 2018

Applicant: In person

Counsel for the Respondent: Mr Peter Woulfe

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	12-13 February 2018
Date final submissions received:	13 February 2018
Applicant:	In person
Counsel for the Respondent:	Mr Peter Woulfe
Solicitors for the Respondent:	Australian Government Solicitor