Pethes and Comcare (Compensation)

Case [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

  1. 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.

  2. 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.

  3. 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…

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AGLC
Pethes and Comcare (Compensation) [2018] AATA 483
Case
[2018] AATA 483
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Pethes against a decision by Comcare to refuse payment for ongoing massage treatments. Mrs Pethes had received weekly massage treatments from 1994 to 2016, which she stated lessened her pain and improved her mobility. Comcare submitted that the massage treatment was not in relation to Mrs Pethes’ accepted condition and that the treatment was not reasonable. The Administrative Appeals Tribunal was required to determine whether the massage treatment was reasonable treatment for Mrs Pethes’ accepted condition.

The Tribunal considered whether massage constituted medical treatment and whether it was obtained in relation to Mrs Pethes’ accepted condition. The Tribunal also had to assess the reasonableness of the treatment, taking into account factors such as the substantiality of its benefits, its cost, its effectiveness, its promotion of self-management, its consistency with the principles in the Framework, and its duration. The Tribunal noted that the definition of therapeutic treatment under section 4(1) of the relevant legislation included treatment given for the purpose of alleviating an injury, and that the parties did not dispute that remedial massage qualified as medical treatment. The Tribunal also applied a broad interpretation of the phrase "in relation to" as established in case law, finding that a relational connection between the treatment and the accepted condition was sufficient.

The Tribunal reasoned that while massage could be considered medical treatment and was obtained in relation to Mrs Pethes’ accepted condition, it did not meet the criteria for reasonable treatment. The evidence indicated that the benefits of the massage were occasional, short-term, and did not lead to substantial improvement in Mrs Pethes’ functionality. Furthermore, the treatment did not align well with the principles in the Framework, and the ongoing cost was substantial relative to the ephemeral and slight benefits. The Tribunal concluded that, on the whole, the massage therapy was not reasonable treatment in the circumstances.

Accordingly, the Tribunal affirmed the reviewable decision dated 12 May 2016.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.CONSIDERATIONIs 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)