Re Popovic and Comcare

Case [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  

  1. 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").

  2. 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

  3. 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.

  4. 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…

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Details
AGLC
Re Popovic and Comcare [2000] AATA 264
Case
[2000] AATA 264
Decision Date

CaseChat Overview and Summary

The applicant, Mr Popovic, sought a review of decisions by the respondent, Comcare, to cease payment for his physiotherapy treatment following a neck injury sustained at work on 23 August 1988. The dispute was heard by the Administrative Appeals Tribunal. The central legal issues before the tribunal were whether the applicant's impairment was permanent as at 1 December 1988, and if not, whether the applicant was entitled to continued physiotherapy treatment under the relevant legislation.

The tribunal found that prior to December 1988, it was not medically established that the applicant's impairment was permanent. The tribunal noted that while the applicant had suffered significant impairment over the years, treatment options had not been fully explored. Consequently, it was not established that his current level of impairment was permanent, though it appeared likely that the applicant would have some degree of impairment indefinitely. The tribunal also observed that the applicant's dependence on medication and injections for pain relief continued even after physiotherapy treatment ceased.

The tribunal affirmed the decision to cease payment for physiotherapy treatment as of 23 September 1998 but set aside and remitted the decision of 31 March 1999 for reassessment of the level of permanent impairment. 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. The question of costs was reserved, with liberty to apply.

The tribunal's decision highlights the importance of thoroughly exploring treatment options before concluding that an impairment is permanent, and the necessity of reassessing the level of impairment when new evidence becomes available. The case also underscores the need for a comprehensive approach to pain management, including non-pharmacological treatments such as physiotherapy.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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, MemberSigned: Eva Dimopoulos ..................................................................................... AssociateDates of Hearing 2 - 4 February 2000Date of Decision 4 February 2000Counsel for the Applicant Mr Allan AnforthSolicitor for Applicant Capital LawyersCounsel for the Respondent Mr Stuart PilkintonSolicitor for the Respondent Barker Gosling

Ratio Decidendi

Legal Principle Established

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