Re Popovic and Comcare - [2000] AATA 264

DECISION AND REASONS FOR DECISION [2000] AATA 264

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1998/297; A1999/191

GENERAL ADMINISTRATIVE DIVISION )

Re RADOSLAV POPOVIC
Applicant

And COMCARE
Respondent

DECISION

Tribunal Pamela Burton, Senior Member Dr Michael Miller, AO, Member Air Marshal IB Gration, AO, AFC, Member

Date4 February 2000
PlaceCanberra

Decision The tribunal gave an oral decision in this matter on 4 February 2000. The tribunal decided: (a) that the reviewable decision of 23 September 1998 (A1998/297) be affirmed; (b) that the reviewable decision of 31 March 1999 (A1999/191) be set aside and remitted for assessment of the level, if any, of permanent impairment. In so doing the tribunal recommended that an appropriate multi-dimensional pain rehabilitation program be undertaken before a functional assessment and a non-economic loss assessment are carried out; and (c) that the question of costs be reserved, with liberty to apply. Following are the written reasons of the tribunal for the decisions.

...................(Sgd.).......................
Pamela Burton Senior Member
CATCHWORDS
COMPENSATION – neck injury prior to introduction of SRC Act 1988 – whether impairment was permanent before 1 December 1988 - whether entitled to physiotherapy treatment
Legislation
Safety Rehabilitation and Compensation Act 1988 ss4, 16, 24, 27, 124
Compensation (Commonwealth Government Employees) Act 1971
Authorities
Comcare v Watson (1997) 73 FCR 273
Re Jorgenson and Commonwealth (1990) 23 ALD 321
Sait and Comcare [1999] AATA 984
Chowdhary and Comcare (AAT 13003, 22 June 1998)

REASONS FOR DECISION

4 February 2000 Pamela Burton, Senior Member Dr Michael Miller, AO, Member Air Marshal IB Gration, AO, AFC, Member

This is an application for review of decisions made by a delegate of the respondent dated 23 September 1998 and 31 March 1999. The decision dated 23 September 1998 ceased liability for physiotherapy treatment on and from 16 September 1997. The decision dated 31 March 1999 affirmed a determination dated 4 February 1999 denying liability for compensation under sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 ("the Act").
At the hearing Mr Allan Anforth represented the applicant and Mr Stuart Pilkinton represented the respondent. The tribunal had before it two sets of documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"), and various medical reports and other documents tendered by the parties. Mr Popovic, the applicant, gave oral evidence. Mr Maher, the applicant's physiotherapist, gave evidence on the applicant's behalf. Mr Cousin, physiotherapist, gave evidence on behalf of the respondent.
Background
The applicant was born on 20 August 1946 in Belgrade, Yugoslavia. He was educated in Germany and immigrated with his family to Australia in 1964. In 1978 the applicant commenced employment with the Australian National University as a laboratory technician in the Department of Geology. He had a certificate in geoscience which later assisted him in obtaining promotions to top-level of technical officer.
On 23 August 1988 the applicant sustained a neck injury in an incident at work. It occurred when he was unlocking a large steel security door leading to the building, an action he had done on many occasions before. On this occasion he turned his head as he opened the door and felt a sharp pain in the lower right side of his neck. When he went in and reached out to take his time card from its holder he felt a sudden pain in his neck such as to cause him to cry out. A colleague came to his assistance and he was taken to the university doctor. The applicant was given a pethidine injection to control the pain and he was referred to Canberra Hospital. He was unable to be x-rayed because of the posture he had adopted in pain and he was referred to his general practitioner, Dr Dimarco. She referred the applicant to Dr Robson, neurosurgeon, who arranged for a myelogram.
Dr Robson interpreted the myelogram as disclosing a disc protrusion at C5/C6 level with resulting nerve root compression, and advised surgery. However, the applicant was unwilling to undergo any surgery, at least at that stage, because of adverse experiences he had when he was a child, which were reinforced by the distressing experience he encountered at the hospital when he had the myelogram. The respondent concedes that the applicant's attitude to surgery is understandable and reasonable. The applicant commenced physiotherapy, and obtained a second opinion from Dr Chandran, neurosurgeon. Dr Chandran advised surgery only as a last resort and not before a discogram was carried out. Consequently, the applicant decided to wait and to have his condition treated conservatively. He was not offered any alternative treatment other than pain killing drugs, including pethidine and later morphine, and the continuation of physiotherapy.
Issues
The respondent paid for the applicant's physiotherapy from September 1988 until 16 September 1997 when it ceased payment for the treatment. The applicant seeks a review of the decision to cease payment. He states that, without physiotherapy, he is required to have more morphine and pethidine to control his pain. He says he has become depressed about his condition and about the respondent's refusal to pay for further physiotherapy. While the physiotherapy provides little - and only short term - physical relief, he says it allows him to sleep better without the use of strong pain killers, and with better sleep he is less irritable and less depressed the following day. Thus, he claims that the physiotherapy breaks the cycle of pain leading to depression and to anger.
One issue for the tribunal, therefore, is whether or not, by September 1997, the physiotherapy treatment continued to be "therapeutic" as defined by section 4 of the Act; and if so, whether it was "reasonable" in all the circumstances, for the purposes of section 16, for that treatment to be continued. The respondent maintains that passive physiotherapy has no therapeutic effect; or alternatively, if there is any short-term benefit to the applicant, it is outweighed by other considerations including its excessive cost.
The second application for review raises the issue of whether or not the applicant's work-related injury resulted in him having a permanent impairment prior to 1 December 1988, the date on which the Act came into effect. Prior to that time, the Compensation (Commonwealth Government Employees) Act 1971 was in force, which did not provide for any lump sum compensation for permanent impairment to the cervical spine. Applying section 124(3)(b)(iii), in the transitional provisions of the Act, the applicant's claim for compensation pursuant to sections 24 and 27 of the Act must fail if, as a matter of fact, the tribunal finds he had a permanent impairment to his neck before 1 December 1988.
The respondent argues that, as the applicant sustained an injury to his cervical spine at C5/6 at the time of the incident in August 1988, and as it almost immediately led to a significant impairment which has remained substantially unaltered to this day, the impairment must be considered as having become permanent prior to 1 December 1988. The applicant says that, as a matter of law, the impairment is not "permanent" until such time as investigations into ways of minimising the impairment have been exhausted and the medical practitioners conclude that the impairment is likely to continue indefinitely. Accordingly, the applicant contends that his impairment could not be considered permanent as at 1 December 1988, a date only some three months after the injury. He contends that with the effluxion of time it has become clear that it is now permanent, and the respondent has a statutory obligation to assess the degree of the permanent impairment and non-economic loss pursuant to sections 24 and 27 of the Act.
The Evidence
The facts are not really in dispute. The applicant was not challenged about his evidence, which he gave openly and frankly. We accept that the applicant sustained an injury to his neck in the incident in August 1988 and that it has had disabling effects. Exhibit 3 summarises the applicant's visits to his general practitioner and the medication he was prescribed. It reveals that pethidine and Digesic have consistently been prescribed from the date of the injury until now, and that morphine was prescribed at a later time. In addition, the applicant currently uses Panadeine Forte for his pain and Prozac for his depression. At the same time, Exhibit 5 reveals that, to 16 September 1997 (431 weeks), the applicant has had a total of 362 visits to physiotherapists at a total cost paid by Comcare of $13,203.80. Most of these attendances were on Mr Maher, as set out in Exhibit 4. The applicant points out that this amounts to an average of less than one attendance a week, though there have been occasions, particularly initially, when he had physiotherapy two or three times a week.
The applicant explained that, while his initial neck pain was acute after the injury until it settled, he later developed right arm pain, numb fingers and severe headaches. Mr Maher verifies that the arm pain and headaches developed some three weeks after he first saw the applicant in September 1988. The applicant states that pain persisted, and while not as acute as it was in the early stages, it became chronic. He explained that he attempted a return to work program in 1995, during which time he was having physiotherapy and required higher doses of medication.
We note the applicant's evidence that once physiotherapy was ceased as a consequence of Comcare denying to pay further physiotherapy accounts the applicant was prescribed narcotic pain-killers and injections. Nevertheless, we also note that the evidence reveals that the applicant's dependence upon medication and injections for pain relief continued after his work trial ceased, notwithstanding continued physiotherapy treatment.
The applicant says that, as a consequence of not being able to have physiotherapy, he had to take MS Contin (that is, morphine in tablet form). However, there is no indication of this in his treating practitioner's medical notes (T12, A1999/191) which cover his consultations up to 23 November 1998. We are satisfied that the references in the notes to prescriptions for morphine refer only to ampoules of morphine sulphate for future injections. The applicant may have erred as to the time he commenced MS Contin tablets. He gave evidence that he sometimes attended Florey medical centre out of hours; but on that evidence alone, we cannot conclude that he obtained prescriptions from that source. Moreover it is unlikely that he would have obtained prescriptions from the Florey medical centre in the period of that year, when he had not obtained such prescriptions from his usual general practitioner.
Physiotherapy
Contrary to the views of neurosurgeons Drs Robson and Newcombe, Dr Mellick, consultant neurologist, in his report dated 14 May 1999 (Exhibit 1) was unable to identify any objective signs indicating that the applicant had a structural spinal lesion. He saw no evidence of a radiculopathy (a condition resulting from compression of the nerve root) involving either upper limb, and no indication of any spinal cord compression. Dr Mellick was not convinced that the myelogram performed by Dr Robson in 1988 established unequivocal abnormality, or that surgery was or is indicated. He is of the view that the applicant's current features represent a chronic pain syndrome of more than 10 years' duration which is unassociated with any objective evidence of organicity but associated with clear features of depression. He denies the applicant's condition involved any cervical trauma. Dr Mellick states:
Mr Popovic simply experienced pain when he turned his head. Sudden pain occurring in that manner is not at all uncommon and does not necessarily indicate any underlying structural spinal abnormality.

He goes on to observe:

It is also evident from the above information that Mr Popovic experienced pain prior to August 1988 and that there were emotional factors of importance also present prior to that date.
.

Dr Schaeffer, neurosurgeon, in his report dated 25 February 1995 (T19, A1998/297) also doubts that the applicant suffered a disc injury, and is of the view that surgery is not indicated. In relation to his treatment he says (p.30):
I am also uncertain of the benefit of the continuing physiotherapy treatment which has been continuing now for approximately 7 years. It is well known that prolonged treatment based on the physical model in circumstances such as this is counter productive and in my opinion it would simply have the effect of reinforcing his pattern of abnormal illness behaviour.
Mr Maher, physiotherapist, thought when he first saw the applicant that he had suffered C6 disc damage and root compression. He nevertheless agrees that when severe pain continues for as long as it has in the applicant's case, it must be given the label of chronic pain syndrome.
In the face of these varying opinions, we conclude that whatever the pathology underlying the applicant's condition, he has injured his neck in a way which has led to development of chronic pain syndrome, and the actual aetiology of the pain does not affect the issue of the reasonableness of physiotherapy treatment.
Mr Cousin, physiotherapist, in his report of 19 May 1999 (Exhibit 2), is firm in his view that medical research establishes that passive physiotherapy of the kind being given to the applicant is of little benefit given the nature of his cervical injury. In giving oral evidence, he emphasised that it was not proved that the applicant had sustained a disc injury; or, if he did, that it was the source of his pain. However, accepting that the applicant did suffer structural injury and that he was not inclined to undergo surgery, Mr Cousin's opinion as to the value of passive physiotherapy in these circumstances did not change. He stressed that once musculo-skeletal pain, from any source, became chronic, then the continuation of ineffective passive modalities could lead to a dependence state. He explained that the development of a dependence state could interfere with the trial of other pain management techniques.
Mr Maher does not disagree with Mr Cousin as to most of what he says in his report. He acknowledges that Mr Cousin has correctly stated the results of medical research but says that, in the applicant's case, the physiotherapy gave the applicant some relief. He agreed that the physiotherapy is of short-term value in the physical sense, but thought that it provided the applicant with some benefit in terms of improving his quality of life, and in this sense that it was of some benefit in the long term. He thought that the short-term relief it provided helped the applicant sleep. He agreed with the applicant's counsel's suggestion that a better sleep was likely to result in the applicant being less depressed and less irritable the next day, allowing him to cope better with the pain. Thus, in the long term he thought the ongoing treatment assisted the applicant in coping with pain.
As to the chain effect of the physiotherapy on the applicant's depression, the tribunal had insufficient evidence before it to satisfy itself that the physiotherapy played any role in the treatment of the applicant's depression. There was no evidence to suggest that the applicant's depressive condition improved overall in the period he was having physiotherapy.
On the whole, the other medical reports available to the tribunal speak with one voice in stating that physiotherapy is of no value in the management of the applicant's problem. Ms Oyston, rehabilitation consultant, in her report of 24 June 1995 (T25, A1998/297), assessed the applicant as having become "quite dependent on his relationship with Mr Maher". The applicant said the physiotherapy sometimes made him sore for 3-4 hours, but improved his sleep. Ms Oyston said (at p.41) that "Mr Popovic stated that it doesn't cure him but makes him feel better"). Dr Herzberg, neurologist, in his report of 15 September 1996, (T35, A1998/297) said "I do not consider physiotherapy treatment is of any real therapeutic assistance to his condition, and I can find no medical basis for its continuation". Dr Wareham, general practitioner, said in her report of 24 April 1998 (T50, A1998/297), "I believe physiotherapy gives short term benefit but it has not influenced his overall progress". The applicant often reported to his general practitioner that the physiotherapy gave no relief.
We note that, at the conclusion of the applicant's attempted return to work, he remained dependent on medication and narcotic pain killing injections notwithstanding the physiotherapy he was having. Before the physiotherapy treatment ceased on 16 September 1997, the applicant had already increased his morphine dose. (Exhibit 3 indicates that the applicant began taking morphine in January 1997 every week or so, instead of pethidine. After 4 months of morphine at a dose of 15 mgs, on 29 April 1997, the dosage was increased to 20 mgs, and then reduced again to 15 mgs every one to two weeks.) We are not satisfied that, after the physiotherapy ceased, the applicant's morphine intake was increased in tablet form or otherwise, as a consequence. In fact, a reading of the clinical notes reveals that within two months of ceasing physiotherapy, the applicant had some longer periods between morphine injections, and the reduction of frequency went for almost a year. He did, however, continue morphine injections, and after about 9 months after the physiotherapy ceased, the frequency began to increase. Moreover, by July 1998 he was beginning to require increased dosages as well. This could support the suggestion that his tolerance to narcotic drugs was increasing. In these circumstances we are not persuaded that the applicant has needed to increase his morphine intake as a consequence of ceasing physiotherapy to control the pain and to give him sleep. We see no evidence of any real change in the amount of drugs he requires associated with physiotherapy. The suggested link between an increase in his medication and the cessation of physiotherapy is refuted by the treatment record.
On behalf of the applicant it was argued that, in 1997 when Comcare ceased physiotherapy payments, there were no other options for the applicant. In fact, as we note below, there are unexplored treatment options which were available then, as they are now. Whose responsibility it is to initiate an appropriate treatment plan is not relevant to the issue before us; which is whether the continuation of passive physiotherapy beyond September 1997 was therapeutic and reasonable treatment.
Other treatment options
The applicant's own general practitioner referred him to the pain clinic at Canberra Hospital as early as May 1996, but Dr Lithgow, the specialist in charge of that clinic, was retiring and the clinic was not accepting new patients; and in fact later closed until a replacement was found. The tribunal has not been informed as to if and when the clinic reopened.
Dr Cassar, consultant physician, in his report of 30 June 1999, (Exhibit A) recognises that the applicant's pain is severe and ongoing, and states that the applicant's only treatment option:
is extended supervision in a pain clinic to safely prescribe and use strong analgesics by mouth and by injection and to modify the pain by physical measures of regularly reintroduced acupuncture treatment every two months for monthly treatment courses made up of eight appointments to appropriate acupuncture stimulation points in neck right shoulder and right arm supplemented by manipulative physiotherapy to areas of recurrent muscle spasm.

The cost of the 12 months pain clinic treatment he recommends would be up to $10,892, and thereafter at an annual cost of $5,446. We understand that the applicant is currently communicating with Comcare about the possibility of such a pain management program being approved by Comcare. From Exhibit B, we understand that Dr Cassar, to whom the applicant had been referred by his legal representatives, runs a private pain management clinic. We do not know whether Dr Cassar's clinic is the only pain clinic at the moment in Canberra.

In June 1997, Ms Cursely, consultant physiotherapist, said that the applicant's condition is best managed by pain management counselling rather than physiotherapy (at T43, A1998/297). Mr Cousin in his report of 19 May 1999 (Exhibit 2) is of the opinion that a graded, supervised exercise program as part of a multi-disciplinary program is the only type of physiotherapy that the applicant's condition might require. He envisaged that this would involve some three to five treatments per week over three to eight weeks. He referred to the need for a specific "multi-dimensional pain rehabilitation program incorporating a cognitive behavioural approach". Mr Maher agreed that this was the case. Mr Maher in fact had encouraged the applicant to undertake a general exercise program as well as a therapeutic one.
We consider that the applicant has not received optimal treatment and has not had the benefit of a properly coordinated holistic pain management program. It seems that even now there is doubt that operative treatment would necessarily be successful. A comprehensive multi-disciplinary treatment program, whether carried out at a clinic or otherwise, does not appear to have ever been embarked upon. It is clear on the evidence that there is a consensus that an appropriate pain management program should be tried.
Findings as to resonableness of physiotherapy
In relation to the applicant's claim for physiotherapy treatment expenses, in our view there is no role for passive physiotherapy in the applicant's current treatment regime. The physiotherapy he was having could not improve him in the long term, has limited, if any, short term benefit, and may in fact be contra-indicated. Any therapeutic benefit he received was small and short-lived. We accept that pain relief, even short-term relief or reduction in pain, can be therapeutic (Comcare v Watson (1997) 73 FCR 273 at 276 per Finn J). However, in this case any benefit is outweighed by the counter-productive effect of it leading the applicant to a dependent state, inhibiting his ability to learn to cope, and to embark on pain management programs to assist him with that object. Taking into account the whole of the evidence before us, we consider that in the applicant's case it was not in his best interest for passive physiotherapy modalities to have continued beyond 16 September 1997 (Re Jorgenson and Commonwealth (1990) 23 ALD 321).
Even if we found that the short-term therapeutic benefit derived by the applicant was therapeutic for the purposes of the Act, in our opinion it is not reasonable treatment in the circumstances for the reasons mentioned above. To the extent the applicant derives some therapeutic value from the psychological effect of receiving the treatment, psychologists could better provide this in an appropriately devised pain management plan.
Mr Maher believed it was worthwhile continuing for up to two years to attempt to achieve a cure, which he thought possible despite his view that the pain arose from a C6 injury. That may well have been reasonable. However, Mr Maher continued the applicant's treatment for some 7 years. In these circumstances the cost of the physiotherapy must also be taken into account where, in a case like this, its expense far outweighs any benefit to the applicant's physical condition. It is not reasonable for the purposes of the Act for the respondent to be liable for its cost when other treatments (including visits to the general practitioner and medication) are required in any event, and for which Comcare is liable to pay. We said as much in the matter of Sait and Comcare [1999] AATA 984. The applicant's case is one in which, while temporary relief can be reasonable treatment, it has become unreasonable (Chowdhary and Comcare (AAT 13003, 22 June 1998)). In any event, as indicated above, we are not persuaded that, by September 1997, it was of any therapeutic effect.
Permanent impairment
We turn now to the question of whether the applicant suffered a permanent impairment prior to 1 December 1988. The applicant had very little treatment between the injury and that date. Consequently, it would be difficult for any medical practitioner to say whether or not any impairment was permanent at that stage. Dr Robson, neurosurgeon, said the only treatment was surgery, suggesting that without surgery the impairment would continue indefinitely. However, Dr Chandran, neurosurgeon, in October 1988 (T13, A1999/191) hoped that conservative treatment might avoid the need for an operation and thought that surgery was a last resort option. Dr Chandran supported the applicant's decision to wait and see whether the pain improved with time. It seems that the applicant had certainly not closed his mind to the option of having an operation at that time. Indeed, he hoped that he would improve. Dr Chandran didn't think there was enough evidence from the myelogram performed by Dr Robson to justify surgery at that time and in any event he recommended that before an operation was contemplated, a discogram should be obtained.
That the applicant's condition was not regarded as stable and his impairment was not permanent prior to 1988 is supported by the note of Dr Wareham as late as 18 May 1998 (T12, p.54, A1999/191). This indicates that she had a further discussion about surgery with the applicant in the light of a new technique being tried interstate, although it was not then available in Canberra.
We accept that the applicant suffered an impairment at the time he sustained the injury in 1988. Mr Maher saw him a few weeks later and measured his neck movements. He noted that the applicant had only 20% of the range of movement normally available. That was before the onset of the applicant's arm pain and headaches. After the pain settled from the acute stage this may have changed. Dr Newcombe, neurosurgeon, refers to the applicant having a loss of some 25% of normal movement when examined on 17 June 1997. Mr Maher says that, when he last saw the applicant in 1997, he had 50%-60% range of movement available to him. However, no full assessment has been carried out as to the applicant's current loss of function, or whether or not his current level of impairment is permanent.
Prior to December 1988 it was not medically established that the applicant's then impairment was permanent. We accept that the applicant has suffered significant impairment over the last 11 years, but it appears to us that treatment options have not been fully explored. In our opinion, it is not yet established that his current level of impairment is permanent, though it appears likely that the applicant will have some degree of impairment indefinitely.
Decision
The tribunal decides:
(a)that the reviewable decision of 23 September 1998 (A1998/297) be affirmed;
(b)that the reviewable decision of 31 March 1999 (A1999/191) be set aside and remitted for assessment of the level, if any, of permanent impairment. In so doing the tribunal recommends that an appropriate multi-dimensional pain rehabilitation program be undertaken before a functional assessment and a non-economic loss assessment are carried out; and
(c)that the question of costs be reserved, with liberty to apply.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member, Dr Michael Miller, AO, Member & Air Marshal IB Gration, AO, AFC, Member
Signed:         Eva Dimopoulos           .....................................................................................
  Associate
Dates of Hearing  2 - 4 February 2000
Date of Decision  4 February 2000
Counsel for the Applicant        Mr Allan Anforth
Solicitor for Applicant               Capital Lawyers
Counsel for the Respondent    Mr Stuart Pilkinton
Solicitor for the Respondent    Barker Gosling