Pike and Australian Capital Territory (Compensation) - [2020] AATA 110

Pike and Australian Capital Territory (Compensation) [2020] AATA 110 (31 January 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )  No: 2018/0789
GENERAL DIVISION  )   2018/7352
Re: Michele-Anne Pike
Applicant

And: Australian Capital Territory
Respondent
DIRECTION
TRIBUNAL:  Mr S. Webb, Member
DATE OF CORRIGENDUM:            5 February 2020
PLACE:            Canberra
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision made on 31 January 2020 as follows:

The name of the Applicant on Page 1 be changed from ‘Michelle-Anne Pike’ to ‘Michele-Anne Pike’;

The words ‘some degenerative change particularly in the cervical and thoracic spine’ appearing at the end of the quote in paragraph 150 be deleted; and
1

The word ‘east’ be deleted from paragraph 202 (line 4) and replaced with the word ‘least’.

..........[sgd].........................................................
Mr S. Webb, Member
Division:GENERAL DIVISION
File Number(s):2018/0789
2018/7352

Re:Michelle-Anne Pike
APPLICANT

Australian Capital TerritoryAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:31 January 2020
Place:Canberra

The decisions under review are affirmed.
........................................................................
Mr S. Webb, Member
WORKERS’ COMPENSATION – compensation claimed in respect of accepted injury – Feldenkrais, physiotherapy and guided steroid injection treatments – nature and persistence of accepted injuries – chronic pain - ‘disease’ – applicable causal test – persisting employment contribution ‘to a material degree’ – meaning of ‘medical treatment’ and ‘therapeutic treatment’ – requirement that treatment must be reasonable to obtain in the circumstances – consideration of options – Comcare’s Clinical Framework policy not binding or determinative - evaluative assessment – self-management – physiotherapy treatment not reasonable in the circumstances – meaning of ‘at the direction of’ – requirement for treatment to be advised, prescribed or ordered by legally qualified medical practitioner – Feldenkrais treatment not at the direction of a medical practitioner - requirement for treatment obtained to be in relation to the injury – guided steroid injections not obtained in relation to the accepted injuries - decisions affirmed
Safety, Rehabilitation and Compensation Act 1988, s 4, 5A, 5B, 16, 67
Safety, Rehabilitation and Other Legislation Amendment Act 2007, s 41, 42
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Bashar v Comcare [2002] FCA 837
Comcare Australia v Rope [2004] FCA 540
Comcare v Power [2015] FCA 1502
Comcare v Watson [1997] FCA 149
Heffernan v Comcare [2014] FCAFC 2
Howes v Comcare [2016] FCA 1521
Prain v Comcare [2017] FCAFC 143
Telstra Corporation Limited v Hannaford [2006] FCAFC 87
Transport Accident Commission and Worksafe Victoria, Clinical Framework for the Delivery of Health Services, (June 2012)
REASONS FOR DECISION
Mr S. Webb, Member
31 January 2020

Michelle-Anne Pike was employed as a teacher by the ACT Schools Authority (subsequently the ACT Department of Education). She sustained several injuries in the course of and arising out of this employment, for which she claimed and was paid compensation. Over many years, she claimed and has been paid compensation for various treatments obtained in relation to her injuries and related chronic pain. This case relates to approvals Ms Pike sought from Comcare (then managing her claim) in respect of expenses relating to certain physiotherapy, Feldenkrais and ultrasound-guided steroid injection treatments. By 2 primary determinations, each affirmed on reconsideration, Comcare decided that compensation was not payable for these treatment expenses. It is in respect of these decisions that Ms Pike applied to the Tribunal for review.
I note that in the course of the proceedings, legal responsibility for Ms Pike’s injuries and related claims transferred from Comcare to the Australian Capital Territory (ACT). It is for this reason the ACT is the respondent, not Comcare.
FACTS
In consideration of the long history and complex medical issues raised by Ms Pike’s employment-related injuries, and in order to properly understand the case, it is necessary to set out relevant and contextual facts spanning a long period of time.
On 22 July 1984, Ms Pike sustained a sub-periosteal haematoma injury when a stage block was accidentally dropped onto her left foot. She claimed compensation. Comcare accepted the claim; reference C/84/03182/01.[1]
[1] Section 37 Tribunal Document in Proceeding 2018/0789 (T)60, folio 167.
On 14 February 1985, Ms Pike tripped on torn flooring material on a ramp at work and wrenched her lower back when gripping a hand rail to prevent herself falling. She claimed compensation. A delegate of the Commissioner for Employee’s Compensation, Comcare’s predecessor, accepted liability for a wrenched lower back and related back pain; reference C/85/01419/02.[2]
[2] Ibid; Exhibit 2, document 3.
On 15 June 1987, a number of drama stage flats fell onto Ms Pike’s back, resulting in a thoracic spine injury for which she claimed compensation. Comcare accepted the claim; reference 87-1804-03/64034/1.[3]
[3] Ibid; Section 37 Supplementary Tribunal Document in Proceeding 2018/0789 (ST)1, ST2, ST3 and ST4.
On 28 July 1988, a flying skateboard struck Ms Pike’s neck at the base of her skull, causing injury. She claimed compensation.[4] Comcare accepted the claim; reference 88-4561-04/64034/2.[5]
[4] ST6.
[5] T60, folio 167.
On 28 October 1991, Ms Pike sustained an injury to her back when a chair she was using was suddenly pushed by a student.[6] Comcare accepted her related compensation claim; reference 64034/3.[7]
[6] ST9 and ST10.
[7] T60, folio 167.
On 8 March 1995, Ms Pike wrenched her arms, shoulders, neck and back when a student was pushed into her.[8] She lodged a claim for compensation in respect of ‘Muscular injury whiplash style to neck and upper and lower back exacerbating previous work back injury”.[9] Comcare accepted the claim in respect of ‘muscle spasm to lower neck C7 & Lumbar L3,4 & upper thoracic’; reference 64034/4.[10]
[8] Ibid, folios 167-168.
[9] T5, folio 15; T4 and ST23, folio 38 refer.
[10] ST24, folio 41 refers.
On 14 May 1996, an Xray was taken of Ms Pike’s cervical, thoracic and lumbar spine. It was reported –
CERVICAL SPINE
The normal cervical lordosis has been straightened and this suggests a muscular cause. There is also early disc narrowing at C5/6 with osteophytes in the neural foramina.
THORACIC SPINE
Minimal osteophytic lipping is noted in the mid thoracic region. The suggestion of a curvature is probably due to patient positioning. No other bony abnormality is seen.
LUMBAR SPINE
There is no disc narrowing but there is some calcification within the discs at L3/4 and L4/5.[11]
[11] T9.
On 31 May 1996, Dr Jackson, a consultant orthopaedic surgeon who examined Ms Pike on 14 May 1996, produced a report for Comcare. The doctor reported a soft tissue injury affecting her lumbar spine and considered that a vigorous treatment program should be instituted on a progressive basis –
My program for Mrs Pike would be firstly a dietary program for weight loss and a much more extensive exercise program to include specific back and abdominal exercises with support from the physiotherapist and an exercise program to include walking and swimming. I am confident that the overall situation would be markedly improved with these measures. I would not expect a rapid improvement. I consider that a time span of six to twelve months at least would be required and treatment response will very much depend upon the motivation of Mrs Pike.
… I consider that there is an element of stress overlay with her complaint.
The prognosis would have to be very guarded because of the long time interval for which she has experienced symptoms, the fact that she has symptoms throughout her spinal column and that X-rays now show some degenerative change particularly in the cervical and thoracic spine.[12]
[12] T10, folios 35-36.
On 1 August 1996, Ms Pike sustained an ‘impact blow to neck, RH shoulder back resulting in intense pain, severe headaches and restricted movement’ for which she claimed compensation.[13] Comcare accepted the claim; reference 64034/5.[14]
[13] ST28, folio 67; ST27; and ZT76, folio 404 refer.
[14] ST22.
I note that this injury occurred while treatment for the injury Ms Pike sustained on 8 March 1995 was ongoing, in respect of which Dr Jackson reported a guarded prognosis.
On 19 August 1996, Annette Cursley, a Comcare physiotherapy consultant, reported that Mrs Pike had 67 physiotherapy treatments since 18 January 1996 and suggested that the treatment program recommended by Dr Jackson ‘would require intermittent review by the Physio, & gradually decreasing visits’.[15]
[15] ST21, folio 35.
On 28 August 1996, Christine Sproule, treating physiotherapist, reported –
I envisage that Mrs Pike may continue to need to have contact with physiotherapy for the next 6 months although this will be on a gradually reduced basis.[16]
[16] T12, folio 40.
On 2 September 1996, Ms Sproule described the proposed physiotherapy treatment plan and management strategies for Ms Pike in the following terms –
To use manual therapy & exercise therapy to firstly return to status pre-accident 1/8/96 & allow return to work again. Once this has been achieved the visits will be reduced to focus mainly on review of exercise program & to treat any problems as they arise during the course of the ex prog. [17]
[17] Section 37 Tribunal Document in Proceeding 2018/7352 (ZT)7.
On 6 November 1996, Dr Burke, a consultant rehabilitation medicine physician, examined Ms Pike. On 20 November 1996 he reported to Comcare that –
It is most likely that Mrs Pike has suffered soft tissue injuries to her spine, probably in the nature of musculo-ligamentous injuries at different times to her low back, thoracic area and neck with associated muscle spasm. There did not appear to be any evidence of a discogenic cause to her symptoms.
…
The injury on 8 March 1995 appears to have been an exacerbation of previous injuries. This injury was exacerbated again on 29 March 1996, when a student aimed a martial arts kick at her and missed her.
There appears to have been a further aggravation on 1 August 1996…
…
Mrs Pike is currently benefiting from a course of physiotherapy for a total of one and a half hours a week, which I would recommend to be continued for the next one month. It could then be reduced and discontinued over the next month. She may require short periods of further physiotherapy in the future for treatment of exacerbations. She appears to respond well to physiotherapy treatment.[18]
[18] ST31, folios 83-86.
On 20 January 1997, Steven Schamburg, a treating physiotherapist, reported –
Treatment for [Ms Pike] has consisted primarily of manual therapy to the cervical, thoracic, and lumbar spine. Improvement has been slow but gains are continuing to be made.
[Ms Pike] is very diligent with her home exercise programme which consists of muscle control and stability as well as general neuromusculoskeletal maintenance. It has been found, however, that [Ms Pike] deteriorates dramatically if she misses even one treatment session.
I feel that over the next 3-4 weeks we can begin to try again weaning [Ms Pike] from treatment (although not completely) and increasing [her] general exercise as able. Over this time treatment will become more active and less passive with an emphasis on self maintenance and muscle control/strength.[19]
[19] ST33.
On 14 February 1997, Dr Ahern, treating general practitioner at that time, reported that he agreed with Dr Jackson’s recommendation that ‘physiotherapy continue for a period of six to twelve months at least’.[20]
[20] ST34, folio 90.
On 19 February 1997, Comcare issued a determination authorising payment for ‘two long treatment at your physiotherapist until 26/2/1997’ and thereafter ‘one standard physiotherapy treatment of $38.00 per week up to 25/3/97’, and stated –
Comcare will not pay for treatment after this date unless prior approval is given.[21]
[21] ST35.
On 5 March 1997, Dr Ahern reported that Ms Pike was ‘improving and should continue to do so with the physiotherapy’.[22] On that day, however, and on 11 and 18 March 1997, he issued medical certificates in which he stated –
physio has been decreased leading to exacerbation of pain.[23]
[22] ST39, folio 99.
[23] ZT76, folios 408, 409 and 410.
On 11 March 1997, David Berg, a treating physiotherapist, reported –
Treatment during this time has included predominantly soft tissue and joint mobilisations and muscle stretching. [Ms Pike] has also been doing some exercises at home in her own time to improve her mobility and maintain gains made during treatment. This element of treatment has been limited, however, due to increases in arm pain, with some exercises, and [Ms Pike’s] fear of water which rules out swimming. Furthermore, the development of trochanteric bursitis in both hips has necessitated a limit to her walking sessions.
[Ms Pike] had been making gains with the above treatment, though they were slow. Recently the thoracic spine pain had largely decreased, with the main problems being in the cervical and lumbar regions.
Her cervical spine pain, I feel, is due to soft tissue tightness and this has been responding to treatment. Maintenance of the gains has decreased since frequency of treatment has been reduced.
The lumbar spine and legs are the major source of discomfort for [Ms Pike] at this stage. It appears that her resumption of walking some months ago has resulted in irritation of her trochanteric bursae on both hips. [Ms Pike] has been icing and stretching these, with however, little success so far. Other major problems are neural tethering and muscle spasm in the legs particularly in the buttocks and back of the lower thighs. There is some irritation of the lumbar spinal joints also.
This spasm appears to have increased over the last few weeks, resulting in a deterioration of [Ms Pike’s] condition. At this stage I feel that resumption of 1 ½ hours of physiotherapy per week would be beneficial for a short period, in an attempt to settle the increased lower limb muscle tightness, before once again trying to reduce treatment frequency.[24]
[24] ST40.
The present materials do not establish that Comcare determined to accept liability for bilateral trochanteric bursitis as an injury.
On 23 March 1997, Ms Pike sent Comcare a detailed letter with nine attachments, requesting:
my physiotherapist treatments be immediately reinstituted at a minimum level of two visits totalling 90 minutes per week until my life is back to ‘normal’ or my condition is stabilised and it is considered that no further progress can be made.[25]
[25] ST41, folio 104.
In this letter, Ms Pike asserted that she developed trochanteric bursitis in both hips as a result of walking for 20 minutes per day, for which ‘Dr Ahern administered Cortizone injections into the bursitis on 5 March 1997’, and that ‘[s]ince the physiotherapy treatment has been reduced from two sessions totalling 90 minutes per week to one 20 minute session per week, my condition has deteriorated’.[26]
[26] Ibid, folio 102.
On 24 March 1997, Ms Pike sent a similarly worded letter to Comcare, requesting reconsideration of the decision to reduce payment for physiotherapy treatment.[27]
[27] ST42.
On 2 April 1997, Dr Ahern issued a medical certificate in which he stated that ‘physio has been ceased leading to exacerbation of pain’.[28]
[28] ZT76, folio 411.
On 23 April 1997, he reported –
Ms Pike was still undergoing treatment for 00064034/04 when she was injured on 1/8/96.
Putting 04 and 05 together Ms Pike has claims for injury to neck, thoracic spine and lumbar spine and right shoulder.
In subsequent certificates the muscle spasm refers to muscle spasm in neck, thoracic spine, lumbar spine extending into buttocks and down legs.
The cortisone injections where [sic] into areas of muscle spasm.[29]
[29] ST23, folios 38-39.
On 28 April 1997, Ms Pike was examined for fitness for duty by Dr Singh-Pandher, an AGHS Medical Officer. On 8 May 1997, the doctor reported –
Ms Pike has sustained soft tissue injuries to her neck, shoulder, back and pain into her legs over a period of years with residual pain effects and exacerbations recently, which have limited her full functional capacity. She needs ongoing conservative treatment and supervision by her treating doctor. The prognosis is promising but the recovery is likely to be gradual and slow, hence the need for ongoing modified duties and occupational health precautions. Her prognosis is guarded but I would consider promising, especially as she is keen and motivated.[30]
[30] ST45, folio 116.
On 3 June 1997, Dr Kennedy, a consultant rehabilitation physician, produced a report to Comcare, having examined Ms Pike on 13 May 1997. The doctor reported –
I consider Ms Pike has suffered multiple soft tissue musculo-ligamentous strain injuries to various areas of her spine in the course of her work. I also consider that Ms Pike has developed a more global chronic pain syndrome at this stage.
…
… As I have mentioned, I consider that Ms Pike has now developed a more global chronic pain syndrome and it is not possible to relate this to a specific incident. Ms Pike appears to have developed quite marked psychological focusing on her symptoms at this stage.
…
I consider that more emphasis needs to be placed on the chronic pain aspect of Ms Pike’s present condition. I feel that she would benefit from review in a multi-disciplinary chronic pain clinic and review by a treating rehabilitation physician.
…
I do not consider that long term, ongoing, hands on physiotherapy would be in Ms Pike’s best interests. I consider that she should be placed on an activating, self instigating program of home exercises for stretching, strengthening and range of motion in particular, and also regular conditioning exercises.
…
I would suggest the use of physiotherapy only as an intermittent tool to monitor Ms Pike’s ongoing home program, essentially at a maximum of four sessions per six months, on average, unless there was some new aspect to her condition as seen by her treating medical officer.[31]
[31] ST25 folios 49-50.
Also on 3 June 1997, a Comcare officer notified Ms Pike of a determination that ‘physiotherapy treatment at the rate of one and a half hours per week be approved for the period 26/2/97 to 31/8/97’.[32]
[32] ST46.
On or about 20 July 1997, Ms Pike attempted a graduated return to work. Ultimately, this was not successful, and she has not subsequently returned to work.
On 13 August 1997, Ms Sproule reported –
Outline of treatment provided to date: Aggressive soft tissue releases & L/S mobilising; comprehensive exercise program/supervising grad. walking program
…
Current short term functional goals:
1.    To complete current 2 ½ days at school without exacerbation of symptoms achievable within …6… weeks
2.    To resolve patellofemoral pain & R patella tendonitis achievable within …4… weeks
3.    Proposed physiotherapy treatment plan and management strategies (please describe) Continuing to use manual therapy…[33]
[33] ST50.
I note that the present materials do not establish that patellofemoral pain and patella tendonitis was accepted as an ‘injury’ for which Comcare was liable.
On 8 August 1997, Dr Ahern notified Comcare that Ms Pike ‘is to attend a pain management programme with Sue Hayes, psychologist, for twelve one hour visits, commencing 12/9/97’.[34]
[34] ST48.
On 18 August 1997, Dr Ahern recommended that Ms Pike be reviewed by Dr Champion at St Vincent’s Hospital in Sydney as no multidisciplinary chronic pain clinic existed in Canberra.[35]
[35] ST49, folio 121.
On 1 September 1997, Trevor Beswick, an industrial physiotherapist, reported that Ms Pike was ‘undertaking a walking program for general fitness and has increased the duration to approximately 5 minutes on non-school days’.[36]
[36] ST51, folio 124.

On 18 November 1997, in the context of supporting Ms Pike’s application for one year’s leave without pay, Dr Ahern reported that –
[Ms Pike] has attempted to return to work unsuccessfully over the past few months. The return to work has failed because of an increase in her chronic pain, exhaustion and depression.[37]
[37] T15, folio 43.
In an undated letter, Sue Hays, treating psychologist at the time, also supported Ms Pike’s application and reported –
Mrs Pike commenced her most recent attempted Return to Work on the 20 July 1997 at the rate of 2 ½ days a week. She had been off work since March 1997 due to worsening of her condition following the cessation of regular physiotherapy. This RTW has failed due to a substantial increase in Mrs Pike’s pain levels, depression, and exhaustion, plus a significant decrease in her attention and concentration.[38]
[38] T14.
In February 1998, Ms Pike moved to live with her husband in New Zealand.
Ms Pike subsequently provided information to Comcare about her time in New Zealand, including –
In mid 1998, I was asked by the Department of Education about my return to work in 1999. I flew back to Canberra to consult Dr Ahern who advised me that I would not be fit to return to work in 1999. I also discussed my situation with Sue Hays in a telephone conversation at that time during which she concurred with Dr Ahern’s prognosis. I subsequently advised the Department that I would not be able to return to my teaching position in 1999 because I was still medically unfit.
Whilst in New Zealand, I continued to take the medications which Dr Ahern had prescribed for me, the cost of which has been fully reimbursed by Comcare. I also undertook an exercise program designed by my physiotherapist (Chris Sproule) utilising equipment that I took from Australia and also equipment in the apartment complex’s gymnasium. When required I obtained the services of local massage therapists to relieve muscle spasms and pain, but I have not sought reimbursement of these costs as they were neither the subject of a referral from Dr Ahern, nor had they been previously approved by Comcare. My Pain Counsellor (Sue Hays) had also devised a program which I was able to undertake independently in New Zealand involving relaxation and de-stressing therapy techniques.[39]
[39] ST83, folio 248.
On 20 July 1998, Dr Ahern reported that Ms Pike’s ‘soft tissue injury has deteriorated”. He referred her to Ms Sproule for physiotherapy treatment: ‘x2 weekly visits for 6 visits’.[40]
[40] ST55, folio 133.
On 27 July 1998, Ms Sproule reported a diagnosis of –
exacerbation of soft tissue (cervical & lumbar) injury.
Due to gradual deterioration over time with no treatment (has been living overseas with husband while on LWOP).[41]
[41] Ibid, folio 134.
Ms Pike returned to Australia in December 1998.
On 28 July 1999, Dr Ahern reported that Ms Pike ‘needs further physiotherapy… for management of spasm causing chronic pain’ to give her ‘more mobility and pain relief’.[42]
[42] ST56.
On 3 November 1999, Dr Ahern reported that Ms Pike ‘continues to need physiotherapy for chronic pain management’ – ‘She will need 1 hour sessions once per week for 4 weeks’.[43]
[43] ST57.
On 12 January 2000, Dr Ahern reported –
(a) Mrs. Pike requires physiotherapy on a periodic basis to relieve muscular spasms and other soft tissue damage to reduce pain and provide more mobility. This treatment provides temporary relief and therefore is required to be provided periodically…
(b) Mrs. Pike will most likely require periodic physiotherapy to relieve chronic back pain…[44]
[44] ST60, folio 143.
On 4 April 2000, Dr Jones, a consultant orthopaedic surgeon, reported to Comcare that –
The diagnosis of Mrs Pike’s condition is an abnormal pain response or chronic pain syndrome.
…
Mrs Pike will not respond to any physical treatments and to have undertaken physiotherapy since 1991 with minimal improvement in her condition would endorse that opinion.
The most important form of treatment that would benefit Mrs Pike’s condition is a full psychiatric assessment and referral to a multidisciplinary pain management service in order to modify her pain response.
…
The prognosis here is poor in terms of recovery as Mrs Pike’s pain patterns have now been entrenched since 1997.
I would re-emphasise however, that it is not a structural injury to her neck, thoracic spine or lumbar spine which is preventing her from returning to work, rather it is the chronic pain syndrome which is a multifactorial condition which has developed in response to a minor work-related injury.[45]
[45] ST64, folios 156 and 157.
On 13 April 2000, Dr Duke, a consultant psychiatrist, reported to Comcare that –
The most parsimonious diagnosis is plural, i.e. undifferentiated somatoform disorder (DSM IV, Category 300.81) and pain disorder associated with both psychological factors and a general medical condition (DSM IV, Category 307.89).
…
… In this instance, sensitive and deeply personal information does have a bearing on the cause of her current psychological condition. Factors including Mrs Pike’s parents and upbringing, along with current problems experienced by her children have had a major impact on Mrs Pike’s present condition.
You will note that Mrs Pike’s subsequent soft tissue injuries coincide with such developments in her family life. Somatisation of anxiety is the underpinning for the diagnosis of somatisation disorder, undifferentiated (as noted above).
However, I do not rule out the fact that Mrs Pike does, in fact, have soft tissue damage to her musculoskeletal system and therefore, the other diagnosis of pain disorder associated with both psychological factors and a general medical condition is also valid.[46]
[46] ST65, folios 164 and 165.
On 13 June 2000, having considered Dr Jones’ 4 April 2000 report, Dr Duke revised his opinion on this latter diagnosis and, instead, reported –
… a Pain Disorder Associated with Psychological Factors (DSM IV, Category 307.80). This diagnosis differs from Pain Disorder Associated with Both Psychological Factors and a General Medical Condition by inferring that any general medical condition which is present is trivial or unrelated to the pain disorder in any significant way.
…
I would suggest that the personal issues, including family history and upbringing, account for two thirds of the variance and the work-related injuries accounts for perhaps one third of the variance associated with Mrs Pike’s current psychological condition.[47]
[47] ST67, folios 169-170.
Dr Ahern referred Ms Pike to Dr Champion, a physician and pain medicine specialist. On 21 September 2000, Dr Champion reported to Dr Ahern that –
Mrs Pike at the time I saw her has chronic regional pain syndromes involving her cervical spine and upper limbs, her lumbosacral spine and lower limbs….
The chronic cervical and thoracolumbar spinal pain syndromes are consistent with post injury disorders with sensitised nociception at the injured sites (including disc and posterior intervertebral joints along with central sensitisation of nociception…
…
… In summary, the majority of the symptom complex is reasonably summarised in diagnostic terms as post injury chronic cervicobrachial pain disorder and a thoracic and lumbosacral spine pain syndrome with deep somatic and radicular referred pain into the lower limbs particularly the right…
… Mrs Pike and her husband have been through about as much distress related to children as one could imagine, but seems to have coped extraordinarily well with that… It would be difficult to know to what extent, if any, the distress, worry and depressed mood may have impacted on her chronic pain disorder, and on her capacity to function…
…
In regard to management … I would be thinking in terms of further aspects of cognitive-behavioural pain management strategies, a gentle exercise regimen, attention to posture, avoidance of biomechanical stresses, regular well tolerated analgesia, ways and means to improve her sleep with the possibility of cautious use of a tricyclic agent…[48]
[48] ST69, folios 180 and 181.
I note that Dr Champion’s reference to distress related to children refers to matters he set out in respect of two of Ms Pike’s children –
September 1985 [daughter] ran away from home for the first time
March 1986[daughter] ran away from home and stayed away – into drugs, government pension supported her/parental access was denied
June 1987[son] was arrested and charged with murder
July 1988[son] was sentenced to life imprisonment[49]
[49] ST69, folio 177.
On 5 October 2000, Dr Ahern reported that Ms Pike ‘needs to continue her physio once/week for 3 weeks over 6 weeks period’, ‘For pain relief & spasm’.[50]
[50] ST71.
On 6 February 2001, Comcare issued a determination –
(a)denying further liability to pay compensation to Ms Pike under any provision of the Safety, Rehabilitation and Compensation Act 1988 (the Act) from 5 February 2001;
(b)denying payment of compensation for incapacity to work from 3 February 1998; and
(c)deciding that Ms Pike’s pain disorder is not related to her compensable conditions.[51]
[51] ST72, folio 199.
Ms Pike requested reconsideration of this determination.
On 22 March 2001, Ms Hays reported –
… I first saw Mrs Pike in 1997, before she was forced by escalating pain and exhaustion to leave her teaching position. I saw the distress she experienced in contemplating leaving teaching, even temporarily. It was obvious to me at the time that Mrs Pike used her career, as do most people who love their work, as a source of positive self-regard and reward. I do not think it would overstate the situation to say that her career, and the satisfaction she obtained from it, assisted her in the life crises that have been so thoroughly discussed in many reports.[52]
[52] ST74, folio 210.
On 21 May 2001, Comcare revoked the 6 February 2001 determination.[53]
[53] ST75, folio 212.
On 15 June 2001, Sally Treadwell, a physiotherapist, conducted a functional capacity evaluation and recommended arm strengthening and lumbar stability exercises ‘could be included in her current physiotherapy treatment regime’.[54]
[54] ST76, folio 234.
On 22 June 2001, Dr Ahern examined Ms Pike and issued a medical certificate, certifying that Ms Pike’s treatment was ‘physio as required’ and that she was unfit for work from 17 January 2001 to 17 January 2002.[55]
[55] T76, folio 416.
On 2 July 2001, Comcare accepted ‘liability for a secondary condition of “chronic pain syndrome”’.[56]
[56] ST78.
On 19 July 2001, Comcare accepted liability for ‘soft tissue injury to lower back and right shoulder’.[57]
[57] Exhibit 2, document 21.
On 15 October 2001, examined Ms Pike and issued a medical certificate, certifying that she was ‘unsuitable to participate in a return to work programme’ and she was unfit for work from 15 January 2002 to 15 January 2003.[58]
[58] T76, folio 417.
On 16 October 2001, Ms Pike informed Comcare that she would be moving to live with her husband in England and ‘Dr Ahern has issued a medical certificate advising that I am unfit to either work or participate in a return to work program in 2002’.[59]
[59] ST84, folio 250.
On 3 November 2001, Ms Pike registered with the Ottershaw Surgery medical practice of Dr Harris, a general practitioner, in England.[60]
[60] ST85, folio 251.
On 12 November 2001, Dr Harris referred Ms Pike for ‘ongoing physiotherapy’.[61] It is not clear if, or to what extent, Ms Pike accessed physiotherapy treatment under this referral.
[61] Ibid.
On 3 October 2002, Dr Harris reported –
Mrs. Pike continues to experience low back pain. I have previously suggested that she be referred to our local Pain Clinic but Mrs. Pike feels that she has had extensive input from Pain Management Programmes in the past and that these are unlikely to help her further. I arranged for a further physiotherapy referral on 29 August 2002.
…
I can confirm that the last time I saw Mrs. Pike was on 29 August 2002.[62]
[62] Ibid, folios 251-252.
On 16 October 2002, Dr Jones, a general practitioner at the Ottershaw Surgery examined Ms Pike and issued a medical certificate, certifying that she was suffering from chronic back pain and depression, and she was unfit for work for three months.[63]
[63] ZT76, folio 418.
On 22 October 2002, Dr Davis, a consultant occupational and forensic physician, produced a report for Comcare, in which he stated –
E.1.I have seen a number of cases similar to that of Mrs Pike, where injuries have resulted from trauma not regarded as severe and which have been followed by chronic pain and disability leading to arguments between orthopaedic, psychiatric and pain management consultants as to aetiology.
E.2. I am quite sure that Mrs Pike is not malingering.
E.3.It is invidious to allocate aetiological percentages to orthopaedic, neurological or psychiatric factors.
E.4.A holistic approach should accept that all three elements are present and contributing to her symptoms and disability. Mrs Pike assures me that, prior to the traumata that she experienced at the school, she had not suffered from anxiety or depression, and if this is so, they are likely to have been the triggering factors in the production of her chronic pain syndrome, which, in my view, is a designation which should not exclude structural change.
E.5.My experience of similar previous cases does not lead me to be optimistic about a return to full functionality.
E.6.I am impressed by Dr Champion’s report. His detail is remarkable, as is his common sense.[64]
[64] ST86, folio 255.
On 10 January 2003, 10 April 2003 and 10 July 2003, Dr Harris certified that Ms Pike was unfit for work.[65] In a subsequent Medical Review Certificate, the doctor reported that Ms Pike was totally incapacitated for work and required ‘physio – to restore function & help with pain relief’.[66]
[65] ZT76, folio 419 – 421.
[66] ZT76, folio 423.
In May 2004, Ms Pike fell down some stairs and fractured her coccyx. She says this did not require any increase in pain medication.[67]
[67] Exhibit 1, paragraph 3.24.
On 1 July 2004, Ms Pike and her husband returned to Australia. Shortly thereafter they moved to Seoul, South Korea, returning to Australia again in December 2004.[68]
[68] Ibid, paragraph 3.25.
On 2 February 2005, Dr Ahern examined Ms Pike and certified that she was suffering from ‘chronic pain & chronic depression’ and she was unfit for work from 22 December 2004 to 22 June 2005.[69]
[69] ZT76, folio 424.
From February 2005 to May 2005, Ms Pike accompanied her husband on a temporary transfer to Singapore, from where they travelled to India and China.[70]
[70] Exhibit 1, paragraph 3.26.
On 30 June 2005, Dr Cox, then treating general practitioner in Canberra, certified that Ms Pike was suffering from ‘chronic pain syndrome and chronic depression’ and she was unfit for work from 22 June 2005 to 30 December 2005.[71]
[71] ZT76, folio 425.
On 20 September 2005, Dr Cox reported –
1.    The cause of her pain requiring treatment is chronic pain syndrome of cervical and lumbar spines and all four limbs…
1.    The therapeutic value of physiotherapy is that she experiences increased movement, less pain and temporary abolition of headaches. She tells me that she requires physiotherapy or [sic] exacerbations of her pain syndrome about twice yearly for about three weeks at a time as often as necessary. She is keen for access to physiotherapy to continue on an “as needs basis” without the need for a referral from her GP.
2.    The improvements expected from physiotherapy are to restore her condition from the more severe exacerbated state to the usual less severe chronic state.
3.    The physiotherapy should be on an “as needs basis’ as often as required. It is not possible to predict when or for how long although past needs are likely to be a reasonable indication. Given the severity of her condition daily physiotherapy is warranted when necessary.
4.    …[72]
[72] ST97, folio 269.
On 8 September 2006, Dr Muirden, a consultant rheumatologist, produced a report for Comcare, in which he stated –
…
Ms Pike suffers from widespread chronic musculoskeletal pain independent of any underlying inflammatory or degenerative process…
…
I consider Ms Pike’s condition has been triggered by her employment…
…
Chronic widespread pain is traditionally related to a constellation of factors and it is likely that the tragic circumstances of the family history contributes. This however is for a consultant psychiatrist to confirm and I did not discuss the possibility in appropriate depth to advise on this point.
…
There is doubtless an element of the natural aging process present, although I do not consider that this contributes any more than in a minor way to Ms Pike’s chronic widespread pain.
…
… I consider the explanation given by Dr Champion is appropriate.
…[73]
[73] ST102, folios 287 and 288.
On 28 November 2007, Ms Pike was examined by Associate Professor Barnsley, a consultant neurologist, who subsequently reported –
I consider that Ms Pike has chronic back and neck pain with some historical evidence of centrally mediated pain; that is a gradual spread of symptoms beyond the initial area of any injury. She also has significant depression.
…
I would accept that Ms Pike has ongoing complaints of pain. There is no clear evidence of any serious musculoskeletal disorder or evidence of any neural impingement. Rather, she has some complaints of pain and I would accept the argument put by Dr Champion that she most likely does have a chronic pain state. Given the duration of symptoms I consider that this is likely to be ongoing…[74]
[74] ST103, folio 294.
On 4 December 2007, Ms Pike was assessed by Dr Radin Ahmad, a trainee occupational physician. The doctor reported –
[Ms Pike] ceased physiotherapy about twelve months previously as this was not beneficial. She last received massage two months previously which she said was temporarily helpful. The last review by a psychologist was in 2001. Currently she uses relaxation tapes and applies meditation techniques for pain self management. She said these techniques are somewhat helpful. Nevertheless, she reported gradual deterioration of her general health and condition…
…
Ms Pike has chronic back pain causing severe disability with respect to mobility and activities of daily living. Psychological symptoms indicate that she has chronic depression…[75]
[75] ST104, folios 298 and 300.
On 17 March 2008, Ms Pike was involved in a motor vehicle accident while holidaying in Jordan. She states that she sustained ‘bruised ribs in addition to the iliac crests’, but she was able to complete the 6 week holiday in Jordan, Egypt and Singapore.[76]
[76] Exhibit 1, paragraph 3.31.
On 6 June 2008, Dr Coyle, a consultant orthopaedic surgeon, produced a report for Comcare, having examined Ms Pike on 29 May 2008. The doctor reported –
Ms Pike may have some degenerative spinal disorder to account for her symptoms to a certain extent, but her symptoms are so widespread that I believe that she probably has a Chronic Pain Syndrome.
…
Ms Pike dates all her symptoms from the injuries she sustained as a teacher and her symptoms have been continuous since that time, so her employment continues to contribute to her condition. [77]
[77] ZT13, folio 37.
On 18 June 2008, Ms Pike was examined by Dr George, a consultant psychiatrist who subsequently reported a diagnosis of ‘Pain disorder associated with a medical condition and psychological factors’, with the medical condition being a ‘Neuropathic pain disorder’.[78] I note that Dr George did not express detailed opinion on matters of causation and his report does not refer to any of the difficult circumstances involving Ms Pike’s children, which Dr Duke and Dr Champion considered to have contributed to her condition. Such matters were addressed by Dr George in a report he prepared for Comcare on 16 January 2009. The doctor reported that ‘Ms Pike was able to disclose far more information than on the first interview’, which he then sets out in some detail which I do not need to repeat – the information is of a sensitive personal nature in respect of Ms Pike’s children.[79] Dr George reported –
[78] ZT14, folio 45.
[79] ZT18 folio 67.
1. Pain disorder associated with a medical condition and psychological factors.
2. Chronic dysthymic disorder with somatoform features.
…
… Her symptomatology has a multifactorial basis as is evident by this current report.
…
On the balance of probabilities as distinct from possibilities her current chronic dysthymic disorder probably relates to personality issues, psychosocial stressors over time and appears related to family problems as much as to any conditions in the workplace. It does appear that from a physical viewpoint the injury of 1 August 1996 has been responsible for her experiencing the pain which she describes. Her pain is experienced disproportionately to her injuries. Obviously, the family issues in her situation are significant and these have not been addressed to any effective degree over time.
…
Ms Pike’s condition has become chronic. The somatic aspect of her presentation, obviously, is a reflection of underlying depression and chronic dysthymia…
…
The factors likely to prevent full restoration of Ms Pike’s health relate to family and personality issues. This is why she should have intensive treatment with an experienced psychologist who can help her deal with unresolved and prolonged grief.
…
This lady will have to remain under her treating general practitioner, Dr Robert Cox, of Spence, ACT and in view of the complexity of her matters I would suggest referral to a psychiatrist to oversee her treatment…
…[80]
[80] Ibid, folios 67, 68, 69, 70 and 71.

On 20 January 2009, Ms Pike provided Comcare a very detailed and extensive critical response to Dr George’s report.[81]
[81] T19.
On 11 February 2009, Ms Pike provided extensive detail of her alleged symptoms and impairments in a Non-Economic Loss Questionnaire in the context of her claim for permanent impairment compensation.[82]
[82] ZT20.2.
On 12 February 2009, Associate Professor Oakeshott, a consultant surgeon, examined Ms Pike and provide a report to Comcare. The Associate Professor reported that Ms Pike did not have a permanent impairment as result of an injury, and stated -
At today’s consultation and objective clinical examination I was unable to identify any evidence of any physical injury or underlying pathology in any part of her body including her neck, shoulders, upper and lower back that could be attributed to the incidents at work outlined above including 1 August 1996.
It is my opinion her symptoms are arising from factors (non-organic – psychosocial) unrelated to the incidents at work outlined above including 1 August 1996.
…
… There is now no objective clinical evidence of any injury or underlying pathology in any part of her body to account for her alleged symptoms.
…
Furthermore, continuing to manage her along standard medical lines on the unverifiable/mistaken belief that she has an organic basis for her persisting widespread symptoms will not achieve a satisfactory outcome for her and will perpetuate her symptoms and prolong her dependency on the medical system.[83]
[83] ZT20.1, folio 98.
On 4 May 2009, Ms Pike was retired from the ACT Government Service on invalidity grounds.[84]
[84] Exhibit 2, document 27.
On 25 May 2009, Comcare decided to reject Ms Pike’s claim for permanent impairment compensation.
On 15 June 2009, Ms Pike requested reconsideration of this decision and provided an extensive rebuttal of Associate Professor Oakeshott’s report and conclusion.[85]
[85] ZT24.
On 16 June 2009, Ms Pike was examined by Dr Prior, a consultant psychiatrist, who provided a report to Comcare. It was Dr Prior’s opinion that Ms Pike ‘suffers from a Secondary Major Depressive Disorder – Recurrent Sub-Type’.[86] The doctor did not discuss chronic pain in detail as ‘Comcare has already accepted that she suffers from a Chronic Pain Syndrome as a secondary condition’,[87] but noted that Ms Pike’s -
depression is a secondary disorder due to her pain and physical limitations and the effect of these upon her lifestyle together with the loss of her ability to teach because of her pain and physical limitations. This is the major contributing factor to her disorder.[88]
[86] ZT25, folio 157.
[87] Ibid.
[88] Ibid, folio 161.
Dr Prior produced a supplementary report for Comcare on 24 July 2009, in which he reported –
I do not judge that Ms Pike suffers an impairment of a psychiatric or psychological nature from her compensable chronic pain syndrome alone.[89]
[89] ZT27, folio 168.
On 13 August 2009, Comcare decided ‘to accept a secondary condition of “major depressive disorder (recurrent)” under section 14 of the Act’,[90] and awarded lump sum compensation for related permanent impairment – ‘a 20% whole person impairment’.[91]
[90] ZT28.
[91] ZT29, folio 173.
On 8 September 2009, Associate Professor Cohen, a consultant physician in rheumatology and pain medicine, provided a report to Dr Cox following examination of Ms Pike on 27 August 2009. It was his opinion that –
The somatic contribution to Ms Pike’s predicament is fundamentally biomechanical with some features suggesting central sensitisation of nociception. I suspect that she has been caught in a vicious cycle of hypermobility => pain on attempted activity => reinforcing hypermobility for a long time now, influenced significantly by the cognitive and affective consequences of not being able to work and indeed to pursue her preferred non-work life. I suspect a significant contribution from hypervigilance.
…
She would also be a good candidate to be exposed to the Feldenkrais approach to postural rehabilitation and I have given her the names of contact therapists in the ACT. I note that she has received some clinical psychological input and it may well be useful for that to continue, specifically to overcome fear-avoidance behaviours and hypervigilance.[92]
[92] ZT31, folio185.
On 13 January 2010, Ms Pike provided an extensive description of her alleged symptoms and impairments in a Non-Economic Loss Questionnaire in the context of her claim for compensation for permanent impairment as a result of chronic pain syndrome.[93]
[93] ZT35.1.
On 14 January 2010, Ms Pike was examined by Dr Gorman, a consultant physician and pain management specialist. On 5 March 2010, Dr Gorman reported –
… I think the best description of her ongoing problem is a “Pain Disorder Associated With Psychological Factors”. This is a DSM IV Category and most appropriately describes her ongoing problem.
The use of the term “chronic pain syndrome” as a diagnosis remains controversial. However, I certainly accept that she has many of the ongoing features that one associates with a chronic pain syndrome. These include her depressed mood, fear avoidance of activity, hypervigilance of physical symptoms and gross deconditioning. She does not have evidence of medication overuse which is often associated.
As well, she has anxiety with panic attacks.
…
… I do not feel she requires specific treatment. She needs encouragement to mobilise and exercise, as well as to minimise her use of strong opiates.
…
I do not feel that prolonged passive therapy such as physiotherapy can be deemed therapeutic when given over a long period.
…[94]
[94] ZT35, folios 196 and 203.
On 24 March 2010, Comcare decided to award Ms Pike compensation for permanent impairment on the basis that she had a 20 percent whole person impairment.[95]
[95] ZT36.
On 4 July 2011, Cassandra Morrow, a certified Feldenkrais practitioner,[96] provided a report to Dr Cox in which she stated –
[96] See Exhibit 3.
Update on Feldenkrais sessions with [Ms] Pike
Weekly sessions: November 2009-October 2010 (excluding overseas travel)
Resumed May 2011 after extended overseas travel
…
Current treatment goals
-Increase her range of movement in both hips (especially the left) through neural organisation (rather than muscle strength).
-Re-organise her movement pattern in her upper skeleton to improve mobility in her cervical and thoracic spine.
-Continue to integrate the walking pattern with heel/toe differentiation with exercises.
Recommendations
Continue weekly Feldenkrais (one to one) sessions for the remained of this year in order to work to the above goals. This will assist with managing her pain levels and, therefore, allow [Ms Pike] to be more independent around the home in daily activities. At this time the need for further session can be reassessed.[97]
[97] ZT41.
On 12 December 2013, Lenore Gunning, an occupational therapist, conducted an assessment of Ms Pike’s household assistance requirements. Ms Gunning reported –
Mrs Pike reports that her symptom levels are manageable where she can cope with her current medication. She reports that she generally has a pain level of 5-6/10 (where 0/10 represents no pain and 10/10 represents excruciating pain).
…
Mrs Pike reports to manage her condition by:
-Intake of medications including Nexium (daily), Tramadol (200mg twice per day), Bruprenorphine (two tablets every 4-6 hours) Temaze (at night to assist with sleep), Panadeine Forte (four times daily), Salprin (4-5 times per day), Prozac anti-depressants (maximum dose at four times daily), Serapax, Endone and occasionally Mersyndol (usually at night).
-Morphine patches (previously 20 ml every 5-7 days), discontinued due to the presence of a rash
-Attendance at Psychological Counselling with Ms Sue Hays (previously). Mrs Pike reports that she has not attended psychological treatment for approximately two years.
-Attendance at Physiotherapy treatment with Ms Christine Sproule when required. No attendance reported this year and no sessions scheduled.
-Performance of home based stretching program
-Attendance at Feldenkrais sessions, no attendance at present
-Cortisone injections to the right and left shoulder approximately two to three times per year.[98]
[98] Exhibit A2, document 54, pages 2 and 3.
On 11 February 2014, Dr The, a treating general practitioner at the time, recommended ‘Ms Pike’s continuation of Feldenkrais therapy’.[99]
[99] ZT42.
On 26 March 2012, Ms Pike says she consulted Dr Fridgant, a psychiatrist, under referral from her treating general practitioner.[100] She asserts that new medication was trialled in an attempt to “change the pain pathways to the brain”, but this was not successful.
[100] Exhibit 1, paragraph 3.50.
On 4 June 2014, Ms Sproule completed a Comcare Physiotherapy Treatment Notification Plan in which she proposed 8 sessions over 8 weeks from 4 June 2014 to 4 August 2014.[101]
[101] ZT43, folio 237.
On 12 June 2014, Dr The reported –
[Ms Pike’s] condition has deteriorated recently and her main medication dosages have had to be either increased in strength or dosage. She currently suffers from Chronic Pain, Chronic Fatigue and Major Depression as a direct result of her multiple injuries.[102]
[102] ZT45, folio 239.
On 4 July 2014, Ms Sproule proposed a physiotherapy treatment plan – ‘ongoing x1/week as recommended by GP Dr Sylvia The’.[103]
[103] T18, folio 56.
On 18 August 2014, Harry Papagoras, a consultant physiotherapist, conducted a Clinical Panel Review of Ms Pike’s case for Comcare. He reported –
-At this stage of recovery, the provision of regular, ongoing treatment is not consistent with elements of the Clinical Framework as it is not in accordance with a biopsychosocial approach to the management of pain, does not empower the injured worker to take on a greater role in self management and is not evidence based.
-It was discussed and agreed with the treating physiotherapist that although the injured worker has persistent problems, that treatment eventually transition to self management as a more appropriate longer term solution. It was agreed that a further 5 physiotherapy services from 15/9/2014 to 31/12/14 be provided to facilitate this transition to self management and then for treatment to cease by 31/12/14 with a discharge to self management.
-The agreed plan should give the injured worker ample opportunity to progress to full self management for this chronic condition.
-The treating physiotherapist felt that the agreed plan was very reasonable.[104]
[104] T17, folio 52
Mr Papagoras did not set out an explanation or evidence-based rationale for his reported conclusions that ongoing treatment was ‘not consistent with the Clinical Framework’, and was ‘not in accordance with a biopsychosocial approach to the management of pain’, such that ‘transition to self management’ was ‘a more appropriate longer term solution’.
I note in passing that the ‘Clinical Framework’ Mr Papagoras referred to is a document entitled Clinical Framework for the Delivery of Health Services (the Clinical Framework),[105] produced by the Health Services Group, a collaboration between the Victorian Transport Accident Commission and Worksafe Victoria. Mr Papagoras gave evidence that he is a consultant to these organisations and he was instrumental in drafting and promoting the Clinical Framework to other Commonwealth, State and Territory insurers, including Comcare and the ACT.
[105] Exhibit 2, document 30.
The Clinical Framework ‘outlines a set of guiding principles for the delivery of health services’.[106] Its stated purposes are to –
-optimise participation at home, work and in the community and to achieve the best possible health outcomes for injured people
-inform healthcare professionals of our expectations for the management of injured people
-provide a set of guiding principles for the provision of healthcare services for injured people, healthcare professionals and decision makers
-ensure the provision of healthcare services that are goal oriented, evidence based and clinically justified
-assist in the resolution of disputes[107]
[106] Ibid, page 1.
[107] Ibid, page 2.
The principles are expressed in the following terms –
1.    Measure and demonstrate the effectiveness of treatment
2.    Adopt a biopsychosocial approach
3.    Empower the injured person to manage their injury
4.    Implement goals focused on optimising function, participation and return to work
5.    Base treatment of the best available research evidence[108]
[108] Ibid.
I was informed during the hearing that the ACT has endorsed the Clinical Framework, but it has no binding force, such as might apply in respect of legislation or formal policy. Much was said about the Clinical Framework in terms of best practice and an evidence-based approach to treatment of compensable injuries. As will appear, there are some vexing issues. The document is expressly a representation of the expectations of the Victorian TAC and Worksafe Victoria in respect of the treatment of people with compensable injuries. The over-arching purpose is the efficient and effective management of claims. In large part, quite clearly, the document is directed to treatment providers, clinicians and decision makers. It purports a ‘goal oriented, evidence based and clinically justified’, ‘biopsychosocial’ approach. The framework of ‘guiding principles’ it sets out are generalised, reductive and somewhat bureaucratic, applying ‘standardised outcome measurement tools’, a coloured flag model of risk assessment, concepts of self-management, a ‘SMART’ methodology and gradations of research. Insofar as these are matters relevant to Ms Pike’s case, I will return to them shortly.
On 15 October 2014, Bartholomew Hendrick , a psychologist who treated Ms Pike under referral by Dr The, reported –
… [Ms Pike] presented with some reported depression and anxiety, primarily attributed to her dealings with Comcare…
Whilst [Ms Pike] engaged in the therapy process at a superficial level, she was inclined to be dismissive of the potential value of any clinical interventions and appeared to have low expectations of therapy. My overall impression was that she enjoyed the opportunity to talk but she was inclined to reject treatment…
In our last session together, I told [Ms Pike] that I felt we were not making any progress in therapy and that, given that she now has Comcare approval for additional psychology sessions, I made the decision to refer her to Randolph Sparks, a clinical psychologist who specialises in the treatment of chronic pain…[109]
[109] ZT50, folio 250.
On 14 January 2015, Ms Sproule sought approval for further physiotherapy treatments for Ms Pike –
This is a pre-emptive request for approval in that it will provide peace of mind for Mrs Pike in knowing that when she experiences an exacerbation of her symptoms she will be able to access care in a timely fashion. Mrs Pike no longer requires regular physiotherapy management. Since September we have worked to refine and reinforce self management strategies and to optimise mechanics of the spine. Progress has been significant and it is anticipated that after the final approval visit in February she will be functioning to her potential.[110]
[110] T25, folio 75.
Comcare provided the approval sought on 10 February 2015.[111]
[111] T26, folio 77.
On 4 May 2015, Dr Rahman, a general practitioner, made a clinical note of a surgery consultation with Ms Pike, in which he noted –
…
She has a very complicated comcare claim history
Today she claimed that she has been getting steroid injection for her shoulder bursitis for long time which was approved by comcare previously.
Recently that claim has been declined and she is asking to advise to get uss guided steroid injection through comcare as it was in her record.
Unfortunately there is no record stating that she has bursitis related to her workplace injury in her previous records.
Only notes in the file is that Dr Sylvia advised her to get uss guided steroid injection in 02/10/2013 and then she advised to get uss guided steroid injections few times.
So I advised her that as there is no previous injury report regarding her shoulder injury – it not possible for me to write a comcare certificate stating shoulder bursitis is related to work place injury.
It took a long time to discuss this issues.
However I have advised her to come back if we could find any reports related to that matter.[112]
[112] ZT52, folio 303.
On 18 August 2015, Ms Pike attended the Pain Management Unit of the Canberra Hospital and commenced ‘a series of investigations into the source of her chronic pain and the determination of future treatments’.[113]
[113] ZT36, folio 101.
On 7 October 2015, Dr Javed, a psychiatrist in the Canberra Hospital Pain Management Unit, examined Ms Pike and gave a diagnosis of ‘Recurrent major depressive disorder with prominent anxiety – partial remission’.[114]
[114] Exhibit 7, page 14.
On 9 October 2015, Dr Meyer, treating general practitioner at the time, reported –
Mrs Pike had a scan recently involving holding her arms above her head for 30 minutes. This has resulted in a serious exacerbation of her symptoms and will require six physiotherapy treatments followed by a review. She is taking Meloxicam and Oxycontin for the pain at present.[115]
[115] ZT35, folio 100.
On 1 April 2016, Ms Sproule completed a Comcare Physiotherapy Review Treatment Plan in which she proposed eight services over a 52 week period and stated that ‘in rooms’ physiotherapy management was ‘likely ongoing on average x6-8/year as estimate’.[116]
[116] ZT41, folio 107.
On 2 June 2016, Ms Pike informed Comcare that ‘because of the advent of colder weather, I will most likely require physiotherapy to maintain mobility’.[117]
[117] T43, folio 110.
On 15 June 2016, Ms Pike informed Comcare that ‘[w]ith the advent of colder temperatures, my shoulders have started to seize up and pain levels have increased dramatically and my GP has recommended that I have bilateral ultrasound guided injections into my bursae’.[118]
[118] ZT53, folio 306.
On 27 June 2016, Mr Papagoras undertook another Clinical Panel Review for Comcare and reported –
Claim 64034/4
…
-As treatment has continued despite a previous plan to reduce and cease treatment with a discharge to self management, and that further treatment has been approved up to 1 April 2017, it is recommended that if treatment continues beyond the current approval, ie more than 8 services or beyond 1 April 2017, then an IME be arranged to assist in determining the treatment needs, specifically to establish if treatment is still reasonably required when considering the Clinical Framework and if the injured worker could eventually self manage her chronic condition.
Claim 64034/5
-It is also noted that physiotherapy services had been provided under claim 64034/5, however the last physiotherapy service billed was on 03/09/2014. It appears that Feldenkrais services are still being provided under the claim, noting that 130 Feldenkrais sessions have been provided from 20/11/09 to 27/05/16 with 13 sessions provided in 2016. It is unlikely that the provision of ongoing Feldenkrais services would be consistent with the Clinical Framework at this stage. As such, if an IME is arranged then a review of the reasonableness of Feldenkrais services could also be explored.[119]
[119] T45, folio 115.
Mr Papagoras did not set out the evidentiary basis or rationale for his suggestion that physiotherapy treatment ‘beyond the current approval’ should be subject to further examination by an independent medical examiner, or for his assessment that further Feldenkrais services would not be consistent with the Clinical Framework.
On 5 July 2016, Carol Croker, an occupational therapist, undertook a home assessment for Comcare and reported –
Dr Meyer has recommended (refer to undated medical certificate – review date of 22 July 2016) that Mrs Pike receive approval for a further two hours of gardening assistance due to the continuing deterioration of her compensable condition.
…
There is no supporting medical evidence that Mrs Pike’s condition has deteriorated, other than the reference on Mrs Pike’s most recent medical certificate signed by Dr Meyer.
…
Mrs Pike reports a history of treatment including pain management. These interventions have not increased Mrs Pike’s capacity to undertake household tasks or gardening…
…
The amount of home help that is currently provided (four hours of household services and two hours of gardening) is reasonable for a large family home located on a suburban block…[120]
[120] T46, folios 118, 123 and 124.

On 26 July 2016, Comcare decided that compensation is not payable for bilateral ultrasound directed steroid injections under claim 64034/5.[121]
[121] ZT54.
Ms Pike requested reconsideration of this decision.[122]
[122] ZT55.
It appears that Comcare considered the matter afresh under claim 64034/4.[123]
[123] ZT57.
On 31 August 2016, Dr Meyer informed Comcare that Ms Pike required ‘steroid injections into both Subacromial Bursae to treat pain in both shoulders and spreading posteriorly to the scapulae on both sides’.[124]
[124] T48.
Ultrasound guided steroid injections into Ms Pike’s subacromial/subdeltoid bursae, bilaterally, were administered on 5 and 7 September 2016. In respect of the right shoulder, Dr Tamhane, a radiologist, reported –
There is diffuse rotator tendinosis. The tendons are heterogenous in appearance and thickened. There is calcification present within the supraspinatus tendon indicative of calcific tendinosis. There is no tear. There is thickening of the subacromial/subdeltoid bursa and there is impingement anteriorly. There is no joint effusion.[125]
In respect of the left shoulder, Dr Chung, another radiologist, reported –
The rotator cuff is intact with no evidence of tear or tendinosis. There is some bursal thickening and bunching in keeping with some bursitis/impingement. There is AC joint arthropathy.[126]
[125] ZT58, folio 317.
[126] ZT58, folio 318.
On 13 October 2016, Dr Meyer reported to Comcare that –
1). Mrs Pike has degenerative changes in the cervical, thoracic and lumbar spine in the sites listed above [lower neck C7 and lumbar L:3-4 and upper thoracic], caused or exaggerated by a combination of all the injuries sustained at her work over the years and as reported to Comcare at each new injury. It should be noted that her symptoms resulting from these injuries are hard to attribute to any one injury and need to be considered together.
In summary, she has vertebral joint pain and muscular or soft tissue pain plus muscle spasm in the spine from neck to pelvis. This causes limitation of movement by pain and stiffness in her back.
The imaging realting [sic] to these injuries is not in our files and would be held by Mrs Pike. There has been no new imaging, except ultrasounds of her shoulders, since she has been a patient here.
2). The shoulder pain she experiences is a result or [sic] injuries to the Trapezius muscles bilaterally, which attach to the neck including the C7 vertebra, and terminate at the acromioclavicular area or point of the shoulder… It is likely that these injections will sometimes be needed in the future to address the subacromial bursitis which is the source of her shoulder pain.[127]
[127] T49, folio 129.
On 27 March 2017, Dr Meyer informed Comcare that –
Mrs Pike requires steroid injections into both Subacromial Bursae and into facet joints at several levels in her thoracic spinr [sic] to treat pain in both shoulders and spreading posteriorly to the scapulae on both sides. The condition is being treated as inflammatory.
I have also recommended that she have a further 8 physiotherapy treatments, on a weekly basis, to address the same problems.[128]
[128] ZT59, folio 319.
Comcare gave approval for steroid injections on 3 August 2017.[129]
[129] ZT60.
On 21 August 2017, Ms Pike was admitted to the Austin Hospital in Heidelberg, Victoria, suffering from multiple convulsive episodes. The Hospital Discharge Summary records –
It was not clear whether these episodes were in fact seizures related to benzodiazepine withdrawal and sleep deprivation, or whether they were psychogenic non epileptic seizures in the setting of an acute hypomanic episode.
…
[Ms Pike] presented during an acute hypomanic episode with elevated mood, pressure and disorganised speech, insomnia and hyperactivity.
Her husband reports she has had similar episodes every couple of months.
She was reviewed by our psychiatry team whose impression was that she has BPAD II.
Their advice was to reduce her floxetine [sic] as it also may prolong the QTc but [Ms Pike] was reluctant to change her fluoxetine that she has been taking for many years, so she was discharged on a slightly reduced dose 60mg, with plan to be followed up by a psychiatrist in Canberra.[130]
[130] Exhibit2, document 33, page 3.
On 4 September 2017, Dr Thomson, a radiologist, took an ultrasound of Ms Pike’s shoulders and administered steroid injections into her subacromial/subdeltoid bursae, bilaterally.[131]
[131] ZT63.
On 12 September 2017, Dr Gorman examined Ms Pike. In his subsequent report, dated 31 October 2017, the doctor reported –
I do not believe that in this situation further physiotherapy will be helpful. It has not resulted in any identifiable gains and need not be continued.
Similarly, the Feldenkrais treatment has been longstanding and has not resulted in any significant gains.
I defer to a psychiatrist with regard to any psychiatric treatment required.
With regard to ultrasound-guided steroid injections, I do not believe that they have made a significant difference and, if they did, it would be because they were treating an inflammatory condition and not the “chronic pain syndrome” or “pain disorder with psychological and general medical factors” that is being supported by Comcare.
…
I believe that after these many years she could proceed to self-management.
…
I do not believe that there is any specific support. She has already seen the types of treatment given by physiotherapists and Feldenkrais practitioners over many years. She could apply these to herself.[132]
[132] ZT64, folio 344.
On 6 November 2017, Comcare determined that Ms Pike was entitled to reasonable expenses for consultations with her general practitioner and pharmaceuticals.[133]
[133] T71, folio 229.
On 7 November 2017, Comcare decided that it is ‘not liable to pay for Physiotherapy, Feldenkrais and Ultrasound guided injections – Bilateral shoulder bursal cortisone injections’.[134]
[134] T57, folio 151.
On 15 November 2017, Dr Oguns, treating general practitioner, endorsed Ms Pike’s application for household support, stating –
Due to Ms Pike’s work-related injuries, she has limited mobility and restricted upper and lower limb movements which causes pain, constant muscle spasms experienced frequently also restricts her from doing these [household] activities.[135]
[135] T59, folio 159.
On the same day, Dr Oguns set out reasons in support of Ms Pike’s claim for a treadmill –
[Ms Pike] has breathing difficulty and gets breathless when walking which is worsened when walking on uneven ground. She also has hayfever and multiple allergies.[136]
[136] T60, folio 166.
On 16 November 2017, Dr Gorman provided Comcare a supplementary report in which he stated that –
I do not believe [the 3 seizures Ms Pike suffered] are likely to relate to her compensable condition.[137]
[137] T61, folio 171.
On 29 November 2017, Ms Morrow wrote to Comcare about the Feldenkrais Method treatments provided to Ms Pike and goals set out in the Clinical Framework. She stated that –
[Ms Pike’s] ability to function and participate around the home is in constant flux and can vary greatly from one week to the next. When her pain symptoms are more extreme, it is not possible for her to ‘treat’ herself. I am aware that [Ms Pike’s] emotional state is adversely affected when she is unable to maintain current levels of independence, function and mobility.
I recommend that [Ms Pike] continue weekly Feldenkrais (one to one) treatments working toward the above goals.[138]
[138] T62, folio 175; clinical records in Exhibit 7 are noted.
On the same day, Ms Sproule reported –
Mrs Pike has consulted physiotherapy on an “as needs” basis in recent years. The purpose of these visits is to restore her to her baseline level of function. This means that the physiotherapy contact on these occasions works to prevent Mrs Pike from significantly deteriorating from her established level of function.
… Whilst chronic pain cannot be cured with physiotherapy, episodes of increased pain and restriction of movement can be successfully treated to enable Mrs Pike’s return to her post injury ‘normal’ stable physical fitness and chronic pain levels.
…
The type of treatment engaged in during these restorative sessions is manual therapy based and revision/modification of self-managed exercises. The manual therapy is not able to be self-administered. It includes joint mobilisation, muscle releases, muscle activation drills. Modifications to exercises are also important at these times.[139]
[139] T63, folios 177 and 178.
On 4 December 2017, Dr Oguns reported to Comcare –
1.    In relation to Ms Pike’s treatment, Dr Gorman comments that he doesn’t think further physiotherapy sessions will help Ms Pike. I do agree that she has had many treatments and could probably offer self management but in the context of her physical health (chronic pain) and ageing. She will not be a candidate for self management. The reasons are:
– she has regular pain and this will limit the amount of self management she could do at home
- Physiotherapist are experienced to give appropriate exercises to meet her needs at the time of presentation
2.    …
Physiotherapy has helped maintain the same level of functioning she has had and had prevented further deterioration.
…
3.    Ms Pike has had several steroid injections in the past, several of which were done by GPs in their clinics. She had steroid injection into both shoulders in June 2015 and September 2016 and until now has not required a repeat steroid injection. This shows it improved her shoulder pain on a longer terms basis and it’s relatively safer to use than oral analgesia.
This shows an inflammatory component and it is part of her approved compensable injury due to repetitive shoulder trauma experienced at work.
Its also of note that Ms Pikes sees an urologist for a non-compensable injury (Interstitial nephritis) and she has researched that NSAIDs worsens this condition and so she is better off avoiding this. This means she cannot take anti-inflammatories and will have to rely on opioids and localised steroid injection to manage her pain.
4.    Regarding Feldenkrais, I am not quite aware of this treatment modality…
5.    Ms Pike started a lifestyle modification program with us on 11/05/2017 and she has lost 15kg until date…[140]
[140] T64.
On 6 December 2017, Ms Pike consulted Dr Adesanya, a psychiatrist. The doctor sought and obtained approval for 6 treatment sessions with Ms Pike. The last of these occurred on 25 May 2018. Ms Pike’s evidence is that Dr Adesanya diagnosed her with ‘PTSD along with Depression and Anxiety’.[141]
[141] Exhibit 2, document 51, page 1.
On 9 December 2017, Ms Pike requested reconsideration of Comcare’s 7 November 2017 determination, denying liability to pay for physiotherapy, Feldenkrais and bilateral shoulder steroid injections.[142]
[142] T65.
On 9 January 2018, Comcare issued a reconsideration decision, affirming the 7 November 2017 determination.[143]
[143] T66.
On 19 February 2018, Ms Pike lodged an application for review of this decision by the Tribunal – application 2018/0789.[144]
[144] T2, folios 3-4.
On 6 March 2018, Dr Al-Sameraali, a reconstructive urological surgeon who treated Ms Pike for interstitial cystitis from May 2017, reported –
The patient has been taking anti-inflammatory medical for shoulder bursa pain as opposed to effective alternative shoulder bursa steroid local injection treatments, however these medications are well known to cause confusable diseases for bladder pain syndrome and can worsen her pain of confuse her condition by worsening the interstitial tissue…
I would recommend twice a year or once local steroid injection instead.[145]
[145] Exhibit 2, document 37.
On 22 March 2018, Judith Spies provided a Neuromuscular Pathology Report, stating –
SUMMARY
Moderate chronic predominantly axonal neuropathy with some features of demyelination and remyelination but no definitive evidence of IgM binding to nerve.[146]
[146] Ibid, document 39.
On 23 March 2018, Kirsten Turner, a pharmacist, conducted a review of medicines being taken by Ms Pike and reported to Dr Oguns -
Pain Management:
Ms Pike currently uses Oxycodone 20mg SR tablets in conjunction with regular Panadeine Forte for management of her Chronic Pain. She is aware on non-pharmacological methods to reduce pain and has a plan in place if her pain is not being managed by her regularly prescribed regime…
Options:
I would recommend that her total daily dose of opioid be reviewed as she is using Oxycodone with Panadeine Forte on a regular twice daily basis. From this calculation, she could be placed on a higher doce of regular Oxycodone SR in order to reduce the amount of Panadeine Forte tablets being used. I would also recommend that she be trialled on Targin (Oxycodone/Naloxone) to manage her pain.[147]
[147] Exhibit 6, page 4.
On 26 March 2018, Professor Cohen reported to Dr Oguns, having examined Ms Pike on 7 March 2018, stating –
In the third paragraph on page 2 of my letter dated 8 September 2009, I offered my formulation of the biomedical contribution to Ms Pike’s predicament, and made reference to the role of hypervigilance and of the cognitive and affective consequences of that entrenched situation. So far as I can ascertain that has not changed and neither has my formulation.
In my view the approach to ongoing management must be to slowly reduce the opioid, using the Targin preparation of oxycodone to reduce constipation. There is no role for Panadeine Forte which should be ceased before reduction in the controlled release opioid is commenced.
From the point of view of physical therapy, I do not support passive modalities but I am in support of ongoing Feldenkrais attention. I understand there has been some talk about Ms Pike receiving injections into the shoulders: I see no role for that, especially not on an “annual” basis.
It is unclear to me whether Ms Pike is receiving clinical psychological intervention or indeed whether such intervention would in fact be of long term benefit.[148]
[148] Ibid, document 40, page 2.
On 7 June 2018, Dr Allen, a consultant orthopaedic surgeon, produced a report, having examined Ms Pike on 28 May 2018. It was the doctor’s opinion that Ms Pike suffers from degenerative spondylosis and –
Ms Pike currently suffers from a chronic pain and degenerative spinal disease which is constitutional in nature.
…
There is evidence from imaging dated 1996 that there is degenerative change throughout the spine.
…
Degenerative changes have progressed in line with the natural history of the various conditions.[149]
[149] Exhibit 5, report dated 7 June 2018, page 6.
Dr Allen produced a supplementary report (dated 10 October 2018) in which he reported –
The diagnosis remains unchanged from my previous report.
…
In my opinion the condition is degenerative in nature and is not related to the claimant’s employment as a teacher. The condition has developed independently of her employment as a teacher and is not an employment related condition.
…
Given the natural history of degenerative cervical spondylosis and the fluctuation of symptoms which occurs with such a condition, the applicant’s reporting of the symptoms has remained consistent with her condition throughout.[150]
[150] Ibid, report dated 18 October 2018, page 2.
I note that Dr Allen’s report of 1996 imaging showing degenerative change throughout the spine is not entirely consistent with the 14 May 1996 Xray report and Dr Jackson’s 31 May 1996 report of ‘some degenerative change particularly in the cervical and thoracic spine some degenerative change particularly in the cervical and thoracic spine’.
On 14 and 18 June 2018, Dr McGill, a consultant rheumatologist and clinical associate professor, produced a report in which he stated –
[Ms Pike] has received injections into the subacromial bursae of both shoulders approximately yearly… They help the symptoms radiating down both upper limbs to the fingers and also help her upper back and ribs. The widespread distribution of the improvement was much more extensive than symptoms from the subacromial bursa.
… She reported sensory alterations of both feet gradually returning to normal moving proximally consistent with peripheral neuropathy.
… Passive shoulder movements were resisted at the same range as she achieved in active movement. Impingement testing was unhelpful in that movements that do not cause impingement caused the same degree of discomfort as movements which can.
…
She was tender over the forearms, arms, anterior chest, posterior chest, thighs and legs bilaterally. The tenderness was not located at joints or specific structures and was characteristic of allodynia. She did not have evidence of complex regional pain syndrome.
…
… I think the label “chronic pain syndrome” is a reasonable label for her long standing symptoms which continue.
Although the physical injuries sustained at work would not, in the vast majority of people, lead to ongoing symptoms, I accept that in a psychologically pre-disposed individual, the work incidents could have contributed to the development of a chronic pain syndrome.
She has relatively minor constitutional degenerative change in the spine, unlikely to be relevant to her current symptoms.
She does not have a significant degree of degenerative change in the rotator cuffs or other structures of her shoulders.
… It has been suggested on at least several occasions that she undertake some form of regular active exercise. Her willingness or ability to make that change has been such that she continues not to do any significant amount of exercise. There is no role for further passive treatment. I agree with Professor Cohen that passive physical therapy provides no benefit in this circumstance. I also agree with Professor Cohen that there is no role for corticosteroid injections of the subacromial bursae.
She has received Feldenkrais for an extended period of time and that does not appear to have resulted in any change in her approach to doing exercise. Although it may have been hoped that the use of Feldenkrais would have promoted an independent self-regulated, physical therapy modality, her approach has remained passive. The aims of Feldenkrais, as described by the Feldenkrais practitioner, have not been successful (at least not in any measurable fashion). To continue to provide her with passive therapy will be at best useless and at worst, may further encourage dependency.
I will leave it to those with expertise in psychiatric medicine to determine the requirement for ongoing psychiatric medication. Her reported use of codeine is excessive and should reduce. Fentanyl and other narcotic analgesia should cease.[151]
[151] Exhibit 9, pages 4, 5, 7 and 8.
On 25 July 2018, Ms Sproule informed Ms Pike that –
What the records will show is that when you return because you are experiencing an exacerbation of your symptoms there is a corresponding loss of ROM (range of movement); imbalance in muscle length around your shoulders, spine, pelvis and/or knee; compression through ribs. These factors impact on your ability to connect your muscles in a way that allows optimal function and indeed allows you to do your self management exercises. When we have 2-3 consults for each episode the function is restored to what is possible for you and as a result the symptoms return to their base level.[152]
[152] Exhibit 2, document 47.
On 1 August 2018, Dr Oguns examined Ms Pike and issued a medical certificate with an attachment dated 7 August 2018, in which she set out treatments for Ms Pike’s injuries under claims 64034/4 and 5 for the period to 12 July 2019. These include Feldenkrais and physiotherapy, as required, and ultrasound-guided injections into both shoulder bursae, once or twice per year.[153]
[153] ZT70, folio 364.
On 3 October 2018, Comcare decided that it ‘is not liable to pay for Physiotherapy, Feldenkrais and Ultrasound guided injections- Bilateral shoulder bursal cortisone joint injections’.[154]
[154] ZT71, folio 366.
On 30 October 2018, Ms Pike requested reconsideration of this decision.[155]
[155] ZT73.

Dr Gorman and Professor Cohen have specialist training and expertise in treating and managing chronic pain conditions, and Associate Professor McGill has relevant specialist rheumatological expertise; their opinions carry significant weight. By comparison, while Dr Oguns and Ms Sproule may be very experienced in their spheres of practice, on the present evidence, they do not have specialist training and expertise in the treatment and management of chronic pain conditions.
Furthermore, there is no compelling evidence that physiotherapy treatment over many years has prevented deterioration of Ms Pike’s chronic pain condition or resulted in sustained improvement. Even though one must look at the intended purpose of the particular treatment when determining if it is reasonable to obtain in the circumstances, it is also germane to consider the degree of its success in the past.[190] The evidence suggests that Ms Pike obtained some temporary symptomatic relief from previous physiotherapy treatments she obtained involving manual therapy. I note that there have been lengthy periods in which she has not obtained physiotherapy treatments and there is no compelling evidence that her condition changed significantly, for the better or for the worse, during these periods. Dr Ahmad reported in December 2007 that Ms Pike had not obtained physiotherapy treatment for the previous 12 months as this was not beneficial to her, but she had obtained some relief from massage.
[190] Comcare v Holt [2007] FCA 405 at [26].
I note the research reports and papers on which Ms Pike relies in Exhibit 2.[191] These materials do not compel a different conclusion. They confirm the benefit of ‘early and effective multimodal treatment strategies’,[192] consistent with the three components identified by Professor Cohen in a GP and allied health education discussion, in which he said –
So, lastly, what does good pain management look like? I suggest that it’s not management of the pain but management of the person experiencing the pain and it has three components: reframing the problem… to help reframe the patient’s view. To recognise the context, looking at psycho and social dimensions as well, and being aware if the effect of our interaction at all levels… And also respecting the nervous system, the nervous system that might have changed towards sensitisation in some people and the effect on the person’s nervous system and their brain of drugs in particular.[193]
[191] Exhibit 2, documents 41, 42, 43, 48 and 50.
[192] Ibid, document 41, page 996 and document 48, page 1, for example.
[193] Ibid, document 43, pages 17-18.
In respect of the role of physiotherapy, in particular, it can be accepted that early adoption of this treatment modality may be a useful component of multidisciplinary pain management.[194] In this context, it is germane to consider Professor Cohen’s explanation of the role of physiotherapy –
We try to decrease pains as much is possible, decrease the experience of pain as much as possible, but increase function despite pain.
The idea that they can’t do anything because of the pain, really has been… should have been thrown out… Well, the literature certainly shows that you do make things worse by doing nothing…
…
… we can explore bodily movement given that most of the problems are musculoskeletal or neuromusculoskeletal, and we may want to re-educate people about how to move because if, in fact, the movement is not tissue damaging, it is only uncomfortable, you can relearn ways of moving, and the neural plasticity literature tells us that this is possible.
And this is where you need, or the patient needs, an enlightened physiotherapist, physical therapist, somebody who understands how the nervous system can become switched on and works within that parameter, gently and slowly, to re-educate so the person can regain confidence that they can move without a flare-up occurring.
[194] Ibid, document 50, page 11.
The Department of Health’s National Strategic Action Plan for Pain Management describes the physical aspect of multidisciplinary pain management in the following way –
Physical – Establishing safe, consistent patterns of movement can calm nervous system arousal and reduce centrl sensitisation. This can be facilitated by negotiating measurable, achievable treatment goals that reflect meaningful and enjoyable activities, not just pain relief.[195]
[195] Exhibit 2, document 50, page 11.
I also note Mr Papagoras’ comments about the Clinical Framework and the conclusions he draws from purportedly applying it. As I have said, the Clinical Framework has no binding force. As Mr Papagoras’ report and his oral evidence clearly reveal, using it as a standard against which to assess the appropriateness of treatment by qualified medical and health practitioners is associated with some difficulties. Most importantly, the assessment process, and the clinical reviews Mr Papagoras carried out for Comcare, proceed, without clinical assessment of the injured person, on an assumption that the Clinical Framework standards are appropriate measures against which the clinical judgment and treatment recommendations of medical and health treatment providers may be assessed. This may be helpful in the context of managing claims for compensation, but I am not persuaded that evidence about the extent to which particular treatment in any specific case departs from or aligns with the Clinical Framework standards assists the Tribunal in matters of the present kind. In a case of this kind, the assumption of assessment standards for treatment under the 5 principles set out in the Clinical Framework does not obviate the need for evidence from treating medical and health practitioners or medical experts. Rather, to my mind, the Clinical Framework requires detailed information or “evidence” from practitioners in each case. Without such evidence, it is difficult to comprehend how any reasonable assessment of the appropriateness of any particular treatment might be concluded.
Furthermore, the Clinical Framework requires that Treatment should result in measurable benefit to the injured person, using standardised outcome measurement tools that are related to “the functional goals of therapy”.[196] While the principle may be sound in theory, and the World Health Organisation International Classification of Functioning, Disability and Health may serve to promote effective communication between healthcare professionals who are familiar with it, where no such measurement tools have been employed by a treating medical or health practitioner, it is difficult to understand how the Clinical Framework applies, other than to mark down the appropriateness of the treatment.
[196] Exhibit 2, document 30, page 172.
Aside from evidence about the Clinical Framework, Mr Papagoras gave evidence about Ms Pike’s treatment, suggesting that he would adopt a different and more effective approach to that adopted by Ms Sproule and Dr Oguns in respect of assisting Ms Pike to self-manage exacerbations. Mr Papagoras is trained as a physiotherapist. He has not clinically examined Ms Pike. With respect, outside the Clinical Framework, his opinion evidence about treatment options lacked detail and a clear medical rationale. Even if one accepts Mr Papagoras as an expert in his field, his opinion evidence carries little weight when assessed with evidence of qualified medical practitioners and experts who have clinically examined Ms Pike and set out medically cogent reasons for their opinions on relevant matters. Nevertheless, Mr Papagoras’ opinion in respect of passive therapy is largely consistent with that of Associate Professor McGill, Dr Gorman and Professor Cohen.
Returning to Ms Pike’s case, it is very clear that she obtained physiotherapy treatment in relation to her accepted injuries soon after the injuries occurred and over an extended period, involving well over 300 treatments. More recently, she has obtained several physiotherapy treatments per year to assist with exacerbations of symptoms, including bursitis.
It may be accepted that aspects of the physiotherapy treatment Ms Sproule provided to Ms Pike involved an educative element in respect of self-management strategies and to optimise mechanics of the spine using movement modification and appropriate exercise. It was in respect of these aspects of treatment that Ms Sproule reported in January 2015 that significant progress had been made and anticipated that Ms Pike would be ‘functioning to her potential’[197] by the end of February 2015. In this report, Ms Sproule stated that Ms Pike no longer required regular physiotherapy management and that effective self-management strategies had been refined and reinforced. It was in the context of re-examining Ms Pike in 2018 that Professor Cohen reported no role for passive treatment modalities. His opinion on this point is compelling and I accept that there is no further role for passive manual therapy in Ms Pike’s case.
[197] T25, folio 75.
With regard to self-management, I accept that, from time to time, it may be desirable for Ms Pike to obtain assistance refining and reinforcing her home-based exercise and self-management program to ensure safe and consistent patterns of movement are being maintained to optimise mechanics of the spine and other affected parts of Ms Pike’s body.
Presently, however, the claim for further physiotherapy treatment involves passive manual therapy, as outlined by Ms Sproule, which is expressly intended to provide relief from exacerbations of Ms Pike’s chronic pain condition as described by Dr Oguns.[198]
[198] Exhibit 2, document 55.
On balance, considering past experience and the extensive medical evidence, under the second option, the temporary therapeutic benefits Ms Pike might obtain from further physiotherapy treatments involving manual therapy do not justify the likely costs, albeit not precisely quantified. One such likely cost is monetary. Another is the risk that further treatment of this kind may encourage dependence on passive treatment that may be counter-productive and that is not supported by expert or specialist evidence. Whereas, under the first option, implementation of the self-management strategies and home-based exercises Ms Pike learned under Ms Sproule’s guidance does not incur either of these costs.
For these reasons, I am reasonably satisfied that further physiotherapy treatment involving passive manual therapy is not reasonable for Ms Pike to obtain in all the circumstances.
Feldenkrais
Ms Pike has obtained Feldenkrais treatment from Ms Morrow over an extended period. In order for compensation to be payable for further Feldenkrais treatment, as claimed and rejected by the decisions presently under review, it must be established that the Feldenkrais treatment is ‘medical treatment’ in relation to Ms Pike’s injuries that it is reasonable for her to obtain in the circumstances.
Thus, the first question is if the treatment sought is ‘medical treatment’.
I am satisfied that it is not.
The present evidence does not establish that any of the tests set out in the definition of ‘medical treatment’ are satisfied. The following components of the definition require consideration (other elements are not applicable) –
(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
…
(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; or
…
Being mindful of the interpretation of the term ‘medical treatment’ adopted by Allsop CJ (with whom Jacobsen and Katzmann JJ agreed) in Heffernan v Comcare,[199] such that meaning is to be derived from the legislative text coloured by the normal meaning of the phrase,[200] I am not persuaded that the Feldenkrais treatment Ms Pike seeks to obtain is medical treatment (in the ordinary sense) by, or under the supervision of, a legally qualified medical practitioner.
[199] [2014] FCAFC 2.
[200] Ibid, per Allsop CJ at [46].
Ms Morrow is not a legally qualified medical practitioner.
Professor Cohen has examined Ms Pike twice, with an interval of 9 years. To my mind his involvement in respect of Ms Pike’s Feldenkrais treatment is too infrequent and remote to amount to such treatment being obtained under his supervision. The word supervision involves elements of monitoring, evaluation and control or management that are unlikely to be consistent with 2 interactions in 9 years.
In December 2017, in reference to Feldenkrais treatment, Dr Oguns reported that ‘I am not quite aware of this treatment modality’.[201] In her October 2019 report, Dr Oguns does not refer to Feldenkrais treatment. It is difficult to accept that a treating doctor could supervise treatment he or she is not aware of or familiar with.
[201] T64.
That being so, paragraph (a) of the ‘medical treatment’ definition is not met.
I am also satisfied that the Feldenkrais treatment is not ‘therapeutic treatment’ obtained at the direction of a medical practitioner for the purposes of paragraph (b) of the definition.
In August 2009, Professor Cohen originally suggested that Ms Pike would be ‘a good candidate to be exposed to the Feldenkrais approach to postural rehabilitation and I have given her the names of contact therapists in the ACT’.[202] In his March 2018 report, Professor Cohen reported that ‘I am in support of ongoing Feldenkrais attention’.[203] To my mind, these remarks do not amount to a direction for Ms Pike to obtain Feldenkrais treatment, they simply convey the Professor’s suggestion that treatment of this kind might be appropriate for Ms Pike and, subsequently, his support for it to continue. Professor Cohen may have given Ms Pike the names of some practitioners in 2009, but there is no evidence he did so in the context of medical referral for treatment in 2009 or in 2018. Professor Cohen’s support for ongoing Feldenkrais treatment in 2018 is directed to Dr Oguns, and the words used suggest an expectation that Dr Oguns might direct treatment she considered appropriate in consideration of Professor Cohen’s report.
[202] ZT31, folio 185.
[203] Exhibit 2, document 40, page 2.
To my mind, the word direction requires more than a suggestion of the kind Professor Cohen made in Ms Pike’s case, it requires “an imperative element”, being “advised, prescribed or ordered” by a medical practitioner.[204] I note, too, that the direction relates to a process for obtaining therapeutic treatment at the direction of a medical practitioner. As Finn J said in Comcare v Amanda Watson,[205] the direction ‘is concerned with the process causing the treatment to be undertaken’. Even if the Professor’s suggestion in 2009 and his support for ongoing Feldenkrais attention in 2018 may be construed as advice in respect of further therapeutic treatment, the latter does not amount to a prescription for her to obtain a further course of Feldenkrais treatment, addressing particular features, symptoms or phenomena of her chronic pain syndrome injury. The imperative element is lacking for these remarks to amount to a direction for the purposes of paragraph (b) of the ‘medical treatment’ definition in s 4(1) of the Act.
[204] Comcare v Watson [1997] FCA 149 at [17].
[205] Ibid.
The present evidence does not establish that the Feldenkrais treatment, as claimed and determined, is at the direction of Dr Oguns or any other doctor.
The only other possible part of the ‘medical treatment’ definition that might apply is paragraph (d), under which the defined meaning includes ‘therapeutic treatment’ by or under the supervision of a registered physiotherapist, osteopath, masseur or chiropractor. Ms Morrow is not a registered physiotherapist, osteopath, masseur or chiropractor. The present evidence does not establish that the Feldenkrais treatment Ms Morrow provided was under the supervision of Ms Sproule. From this it follows that paragraph (d) of the defined meaning of ‘medical treatment’ is not made out.
For these reasons, even though I am satisfied that the Feldenkrais treatment for which Ms Pike sought approval, which the two reviewable decisions deny, is probably therapeutic treatment obtained in relation to Ms Pike’s chronic pain syndrome injury, it is not ‘medical treatment’ for the purposes of s 16 of the Act.
For this reason, it is not necessary to consider if this treatment is reasonable for Ms Pike to obtain in the circumstances.
Ultrasound-guided steroid injections
It is probable that the ultrasound-guided steroid injections for which approval was denied in the decisions under review are within the meaning of ‘medical treatment’ – the injections are medical or surgical treatment administered by a legally qualified medical practitioner.
Ms Pike has obtained steroid injections into her subacromial bursae, bilaterally, for several years. These treatments were on the advice of her treating general practitioners, namely Dr Meyer, Dr The and Dr Oguns. Presently, she seeks approval for 2 to 4 ultrasound-guided steroid injections into her subacromial bursae, bilaterally, as recommended by Dr Oguns.
I am not persuaded, however, that the injections are ‘medical treatment’ obtained ‘in relation to’ Ms Pike’s accepted injuries that is reasonable for her to obtain in the circumstances.
On evidence given by Dr Oguns, the injections are required to manage pain and inflammation associated with subacromial bursitis –
The direct trauma to [Ms Pike’s] shoulders as well as the neck and shoulder traumas has resulted into subacromial bursitis. Trauma is one of the major risk factors for subacromial bursitis (SAB) and she has had repeated injury to the surrounding structures including nerves, muscles, tendon, ligaments and the bursa itself, these has resulted into subacromial bursitis…
For management of her right subacromial bursitis, she has had steroid injections as well as physiotherapy and she has had a good response to them.
The role of steroid injection in the management of pain is to manage acute exacerbations of pain which can limit the use of the part of the body which will subsequently either worsen the condition or cause loss of function…
Steroid injections help to reduce inflammation which subsequently reduces pain and provide functional improvement which improves mobility.[206]
[206] Exhibit 2, document 55, page 1.
Associate Professor McGill reported that Ms Pike obtained some benefit from ultrasound-guided steroid injections –
[The injections] help the symptoms radiating down both upper limbs to the fingers and also help her upper back and ribs. The widespread distribution of the improvement was much more extensive than symptoms from subacromial bursitis.[207]
[207] Exhibit 9, page 4.
This report of widespread improvement beyond symptoms of subacromial bursitis is difficult to understand. It suggests a disproportionate response beyond expectation. Furthermore, Associate Professor McGill did not report the presence of subacromial bursitis on clinical examination of Ms Pike.
I accept that Ms Pike has interstitial cystitis that may be exacerbated, on Dr Al-Sameraaii’s evidence, by use of anti-inflammatory medicine, such that steroidal injections are preferred treatment for subacromial bursitis.
Dr Oguns’ opinion about subacromial bursitis is not consistent with Associate Professor McGill’s evidence. The Associate Professor explained that Ms Pike’s chronic pain syndrome injury is not an inflammatory condition. This is consistent with the evidence given by Dr Gorman and Professor Cohen, as well as the psychiatric evidence of Dr Duke and Dr George.
I note that Comcare accepted liability for a soft tissue right shoulder injury on 19 July 2001. There is no record of Ms Pike suffering from subacromial bursitis at that time or subsequently in the reports of Dr Cox, Dr Harris, Dr Davis, Associate Professor Barnsley, Dr Coyle, Dr Muirden, Dr Ahmad and Associate Professor Oakeshott. It is probable that from in or about 2010 Ms Pike obtained steroid injections into her subacromial bursae, some of which were paid for by Comcare. If subacromial bursitis was present at those times, it is not presently established by evidence that this condition persists and is causally related to her accepted injuries. For this reason, it is not presently established that the ultrasound-guided steroid injections into her subacromial bursae is treatment obtained ‘in relation to’ her accepted injuries.

Even if that is not correct, no different result would be obtained as I am not satisfied that treatment of this kind is reasonable for Ms Pike to obtain in the circumstances.
Dr Gorman, Associate Professor McGill and Professor Cohen reported there is no role for ultrasound guided steroid injections in management or treatment of Ms Pike’s chronic pain condition. These doctors have specialist expertise and training in the diagnosis, treatment and management of chronic pain. On this point, I prefer their evidence to that of Dr Oguns and Dr Meyer.
CONCLUSION
Ms Pike sustained a number of physical injuries in her previous employment. These injuries materially contributed to cause the chronic pain syndrome from which she suffers. This ailment has psychological and physical features that are closely interlaced with her Pain Disorder. The chronic pain syndrome is an ‘injury’ for the purposes of the Act which is presently ongoing.
Ms Pike’s requests (through Ms Sproule and Dr Oguns) for further treatment in the form of physiotherapy, Feldenkrais and ultrasound-guided steroid injections to her subacromial bursae are not made out. The physiotherapy treatment sought is not reasonable for her to obtain in the circumstances. The Feldenkrais treatment is not ‘medical treatment’. The ultrasound-guided steroid injections are not medical treatment obtained in relation to Ms Pike’s accepted injuries.
The ACT is not liable to pay compensation for the treatments under claim.
Nevertheless, there is no bar to Ms Pike claiming for further medical treatment in the future should it be necessary for her to do so. As I have said, it may be appropriate for her to obtain support to reinforce or refocus self-management strategies and her home-based exercise program from time to time. These are not matters for me to determine presently – any such claim must be determined on the merits at the time.
DECISION
The decisions under review are affirmed.

274. I certify that the preceding 273 (two hundred and seventy three) paragraphs are a true copy of the reasons for the decision herein of Member Simon Webb.

........................................................................
Associate

Dated: 31 January 2020

Date(s) of hearing:
25 November 2019 – 27 November 2019

Applicant

Solicitors for Respondent:

Counsel for Respondent:

In person

Mr Daniel D’Onofrio, McInnes Wilson Lawyers

Ms Kate Slack