Re Durham and Comcare

Case [2014] AATA 753

[2014] AATA 753 

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/4534

Re

DARRYL DURHAM

APPLICANT

And

COMCARE

RESPONDENT
Tribunal Ms G Ettinger, Senior Member
Date 17 October 2014
Place Canberra

Decision          The Tribunal affirms the decision under review.

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

Ms G Ettinger, Senior Member

CATCHWORDS

COMPENSATION -  Comcare has accepted liability for lumbar spine injury incurred on 12 March 1996 – two further aggravations in 2005, 2006 – continuing request for physiotherapy reviewed by Comcare following more than 500 sessions – physiotherapy not provided following graduated reduction in December 2013 and reviewable decision – cost/benefit considerations -  decision under review affirmed.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 s 16

CASES

Alamos v Comcare [2014] AATA 629

Comcare v Rope (2004) 135 FCR 443
Comcare v Holt (2007) 94 ALD 576
Excell and Comcare [2010] AATA 104

Popovic and Comcare [2000] AATA 264

SECONDARY MATERIALS

Clinical Framework for the Delivery of Health Services

REASONS FOR DECISION

Ms G Ettinger, Senior Member  

17 October 2014

  1. Mr Darryl Durham is a consultant in sport, aged 52.  He worked at the Australian Sports Commission for 17 years until his redundancy in May 2012. Mr Durham injured his lumbar spine in the course of his work when lifting a suitcase from a carousel in July 1996. Liability pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act), was accepted by Comcare. He has since had aggravations in 2005 and again on 12 March 2006, which is the date of injury of the accepted condition for the purposes of this application. He has been provided with more than 500 physiotherapy treatments since the injury in 1996. Following his redundancy in May 2012, he set up a sports consultancy. 

  2. Mr Durham’s claim is that he requires continuing physiotherapy treatments to maintain his back, without which he would not be able to work. Comcare ceased paying for physiotherapy in December 2013 following a graduated decrease in sessions available to Mr Durham.

  3. Mr Durham was not satisfied with the decision, and has exercised his right to appeal to the Tribunal.

  4. Mr Durham gave oral evidence at the Tribunal, as did his physiotherapist, Mr G Backen, and Dr P Wilkins, an occupational physician, who had examined him on two occasions and prepared reports in 2012 and 2013 (Exhibit A4). A medical report of Dr G Griffith, a consultant surgeon, dated 25 April 2014, (Exhibit R7), and medical reports in the T-documents were also tendered.

  5. I considered the evidence, the application of section 16 of the Safety Rehabilitation and Compensation Act 1988 (the Act), and the cost benefit argument. I have decided to affirm Comcare’s decision of 14 August 2013. My reasons follow.

    ISSUE BEFORE THE TRIBUNAL

  6. The issue before the Tribunal is whether the correct or preferable decision is to affirm, set aside or vary the reviewable decision of Comcare dated 14 August 2013 to cease paying for physiotherapy treatment for Mr Durham by 15 December 2013.

    LEGISLATIVE ENVIRONMENT

  7. The relevant legislation in this matter is…

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AGLC
Re Durham and Comcare [2014] AATA 753
Case
[2014] AATA 753
Decision Date

CaseChat Overview and Summary

In the matter of Re Durham and Comcare, the Administrative Appeals Tribunal (AAT) reviewed a decision made by Comcare regarding the ongoing physiotherapy treatment of Mr Durham, who sustained a lumbar spine injury in 1996 and experienced two further aggravations in 2005 and 2006. The central issue before the Tribunal was whether Comcare was required to continue funding Mr Durham's physiotherapy sessions, which had amounted to over 500 sessions and a significant cost, following a decision to cease funding after a graduated reduction in December 2013.

The legal issue at hand was whether the physiotherapy treatment provided to Mr Durham constituted reasonable medical treatment as required under section 16 of the Safety Rehabilitation and Compensation Act 1988. The Tribunal examined various factors, including the benefits of the treatment to Mr Durham, its long-term effects, its potential to cure or significantly reduce the effects of the injury, its ability to maintain the status quo, and the overall cost of the ongoing treatment. The Tribunal also took into account the 'Clinical Framework for the Delivery of Health Services' and the opinions of various medical professionals who had assessed Mr Durham's condition.

The Tribunal affirmed the decision of Comcare to cease funding the physiotherapy sessions, finding that Mr Durham had not shown consistent progressive improvement over the years and had become habituated to the treatment. The Tribunal concluded that the long-term physiotherapy did not align with the principles of independence and self-management outlined in the 'Clinical Framework for the Delivery of Health Services'. The decision was supported by the medical evidence indicating that there was no justification for indefinite physiotherapy. The Tribunal expressed sympathy for Mr Durham's personal and health challenges but found that the cost-benefit analysis favoured discontinuing the physiotherapy sessions funded by Comcare.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, in particular section 16 which provides for reasonable medical treatment. I am satisfied that the physiotherapy for which Comcare has been paying falls within the definition of section 16 of the Act.THE EVIDENCEThe Applicant evidence and his counsel’s submissions Mr Durham provided a statement dated 6 December 2013 (Exhibit A1), and a further statement dated 15 August 2014 (Exhibit A2). He told me about his injury, which he described as a central and left disc protrusion at L5/S1. I noted that the reviewable decision described the accepted condition as aggravation of displacement of intervertebral disc – lumbar and major depressive disorder, single episode. Mr Durham said that he presently works in his sports consultancy three full days, and two half days per week. Mr Durham’s evidence is that he suffers constant lower back pain varying in severity between painful and extremely painful. In his statement at Exhibit A1, he detailed the pain in his left hip, left buttock, left knee, left calf, left leg, left foot and left toes. The pain in those areas appears to fluctuate. He has found that two sessions of physiotherapy per week, and the exercise he performs privately assist with maintaining him at work. Mr Durham said since Comcare ceased paying for the physiotherapy, he now pays for one to two sessions per week, although he cannot always attend due to work commitments. He takes the medication prescribed by his general practitioner Dr Morton, attends the podiatrist every 18 months (next appointment due in six months), and has not undertaken psychological counselling since late 2013 due to his wife’s illness. He said that last year had been particularly difficult as his wife had a major illness, her mother died, and their son had surgery. He said that whilst undertaking the major carer role at home, he tried to maintain his work and exercise routine, but found that his problems were impacting on his pain. He acknowledged that weight reduction would assist, and told me he was seeing a dietician the week after the hearing. Mr Durham gave evidence of a period of five weeks after he had been seen by Dr Griffith in which he trialled managing without physiotherapy. He said that this during this time his pain had worsened, and he had difficulties sitting for long periods of time. I noted the medical certificate of Dr Morton dated 4 August 2014 in which she certified Mr Durham fit for modified duties from 19 July 2014 to 23 January 2015 on the basis of his aggravation of work related lumbar disc injury. Major depressive disorder. Mr Durham wrote in his statements regarding the benefits of physiotherapy, which he corroborated in his oral evidence.: Given my present working situation I gain great benefit from the mobilisation that occurs within my physiotherapy session. I find that this consistent mobilisation assists with maintaining my present level of functionality and my ability to work. When I have missed my physiotherapy treatment due to work commitments within my own business, I have found that my symptoms and pain levels have increased dramatically, especially in regards to my lower back pain and sciatic nerve pain down my left leg.

Decision

Reasons for decision

I am satisfied from the evidence of the Applicant himself, and all the doctors whose evidence was before me, that there has been no consistent progressive improvement in Mr Durham’s back over the last 17 years. He has become habituated to the physiotherapy, even though he has managed with one session or less a week since December 2013. In considering the application of the case law (Re Popovic and Comcare and Comcare v Rope and Comcare v Holt), and the cost benefit argument, I find that long term physiotherapy such as Mr Durham has had has no place. The ‘Clinical Framework for the Delivery of Health Services’ deals with independence and self management, which has been hampered by Mr Durham’s dependence upon twice weekly Commonwealth funded physiotherapy. I am satisfied that the correct or preferable decision is to affirm the decision of the Respondent of 14 August 2013. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Dr Griffith also stated that he concurred with the opinions of those by whom Mr Durham has consulted that there was no justification for indefinite physiotherapy. THE TRIBUNAL’S DELIBERATIONS AND CONCLUSIONS In coming to a decision regarding whether the correct or preferable decision is to affirm, vary or set aside the decision of Comcare of 14 August 2013, I have taken into account Mr Durham’s evidence, that of the doctors who have examined him, the evidence of his physiotherapist, the ‘Clinical Framework for the Delivery of Health Services’ and the other documents before me. I note it was agreed between the parties, and I accept that Mr Durham suffered three compensable injuries in 1996, 2005 and 2006, as described in the paragraphs above. Mr Durham is a person who has been active in the sports world, and has suffered both physical and psychological pain as a result of his physical activities being curtailed by his injuries. He has however, following redundancy from the Australian Sports Commission, and to his credit, been able to establish a sports consultancy at which he currently works three full days and two half days a week. During 2013, he also suffered some personal problems, most significantly, the illness of his wife, which has caused him further pain. In regard to those, I express my sympathies. I note that Mr Durham has consulted his general practitioner, Dr S Morton regularly, and been prescribed medication for Type II diabetes, and pain. He has also attended at Mr Backen’s practice twice a week from the time of the injury in 1996 to 13 December 2013, when a graduated reduction on physiotherapy provided by Comcare ceased. That has cost, according to Comcare’s Statement of Facts and Contentions, approximately $65,647.65 for 631 sessions of physiotherapy. There were other periodic related expenses such as visits to a podiatrist and psychiatrist. The requirement of section 16(1) of the Act is that for compensation to be payable in respect of the cost of medical treatment obtained in relation to an injury, the treatment must reasonable for the employee to obtain in the circumstances …. In considering this requirement, it is necessary to consider all of the circumstances, and not only the beneficial effects experienced by Mr Durham. I noted that Deputy President Constance in the matter of Alamos v Comcare [2014] AATA 629 at [24] stated that without intending the list to be exhaustive, some of the factors which may be relevant considerations in the circumstances are:·the benefit of the treatment to the injured worker;·the long-term effect of the treatment;·whether the treatment is likely to cure the injury or significantly reduce its effects;·whether the treatment maintains the status quo;·the cost of ongoing treatment. In a Comcare ‘Clinical Panel Review’, dated 15 April 2013, conducted by Mr Papagoras, it was noted that: ·the current treatment Mr Durham was receiving was primarily passive, and twice weekly over a long period;·despite this, Mr Durham was still symptomatic and not improving;·the provision of this treatment was not consistent with elements of the ‘Clinical Framework for the Delivery of Health Services’, as it did not empower Mr Durham to take a greater role in self management;·it was suggested that the treatment should reduce over a graduated period leading to a greater role in self management.