Ring v Eclectic Holdings Pty Limited - [2012] NSWWCCPD 54

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Ring v Eclectic Holdings Pty Limited [2012] NSWWCCPD 54
APPELLANT:		Charlie Renee Ring
RESPONDENT:		Eclectic Holdings Pty Limited
INSURER:		QBE Insurance (Australia) Limited
FILE NUMBER:		A3-3616/11
ARBITRATOR:	Mr R Perrignon
DATE OF ARBITRATOR’S DECISION:		27 June 2012
DATE OF APPEAL DECISION:		2 October 2012
SUBJECT MATTER OF DECISION:		Section 60(5) of the Workers Compensation Act 1987; reasonably necessary proposed treatment or service; challenge to factual finding made by Arbitrator
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Self represented
Respondent:	Mulcahy Lawyers
ORDERS MADE ON APPEAL:		1. The finding and order of the Arbitrator made in Certificate of Determination dated 27 June 2012 are confirmed. 2. No order as to costs

BACKGROUND

There is no dispute that Ms Charlie Ring received injury in the course of her employment with Eclectic Holdings Pty Limited (the respondent) on 28 May 2007. Since that time Ms Ring has reported painful symptoms at each level of her spine and in other regions of her anatomy.
In May 2011 proceedings were commenced in the Commission on behalf of Ms Ring by her then solicitors. An Application to Resolve a Dispute (the Application) filed with the registry sought orders with respect to weekly payments, lump sums pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act) and an unspecified claim in respect of medical, hospital and rehabilitation expenses pursuant to s 60 of the 1987 Act.
On 8 June 2011 the Application came before Arbitrator Perrignon for conciliation/arbitration. At that time agreement was reached between the parties concerning the claim for weekly payments. A general order was made, also by consent, that the respondent pay Ms Ring’s reasonably necessary medical and related expenses. It was further agreed that the claim in respect of lump sums for alleged whole person impairment be remitted to the Registrar for referral, in terms later agreed between the parties, for assessment by an Approved Medical Specialist of any whole person impairment resulting from the subject injury. A further matter, being assessment by the Approved Medical Specialist as to “whether future treatment by way of physiotherapy, massage therapy or exercise therapy is reasonably necessary” as a result of the subject injury, was referred.
A medical assessment was conducted by Dr Alan Home, Occupational Physician, and a Medical Assessment Certificate (MAC) was issued by him bearing date 14 October 2011. Dr Home certified that Ms Ring had suffered 12 per cent whole person impairment. The body parts identified in that certificate, the condition of which gave rise to the assessment, were the cervical spine and the lumbar spine.
A response to a specific question put to Dr Home appears in that MAC (at [11]) as follows:
“ANSWERS TO SPECIFIC QUESTIONS

(If applicable) your answers to the specific questions raised by the Arbitrator. (I have included the questions as well as the answers)

You are also to provide an opinion as to whether you consider future treatment by way of physiotherapy, massage therapy or exercise therapy is reasonable and necessary?

It is my opinion that further physiotherapy, massage therapy or exercise therapy is not reasonable and necessary in this case.
The criteria for reasonable and necessary treatment are as follows:
·        Appropriate for the injury and relieve the effects of the injury
·        Effective in promoting recovery
·        Cost effective
·        The vest [sic, best] option to other forms of treatment available
·        Accepted by the professional body in achieving optimum recovery and return to work.
A long period of passive therapy incorporating massage and mobilisation of her spine from a therapist in Mosman did not provide her with benefit.
Such treatments are not appropriate for her injuries and will not relieve the effects of the injury over time.
They will not promote recovery.
The costs will not lead to any effective recovery.
There are no forms of treatment that will alter her outcome.
There is no epidemiological support for the use of passive therapy modalities such as spinal manipulation and massage therapy in the management of chronic low back pain, as noted by the relevant professional body, the Australian Physiotherapy Association – Guidelines for the Management of Low Back Pain (2002).
Whilst there is epidemiological evidence to support exercise therapy, Ms Ring has experienced no benefit from hydrotherapy or gymnasium-based exercise in the past. She could not continue exercise due to symptom exacerbation.
I have considered correspondence from Damian Oldmeadow, physiotherapist with Physiotherapy Solutions in Mosman Park, and Mr David Kelly.”

Ms Ring’s Application again came before the Arbitrator on 6 December 2011 by way of telephone conference. Agreement was reached between the parties concerning Ms Ring’s entitlement to a lump sum pursuant to s 67 of the 1987 Act. In the circumstances an award in her favour providing for a lump sum pursuant to s 66 in accordance with the binding assessment of whole person impairment made by Dr Home and in respect of the agreed s 67 sum was entered by the Arbitrator. A further order was made in the following terms:
“The issue as to whether physiotherapy, massage therapy and exercise therapy, are reasonably necessary medical or related expenses, considered by Dr Home in his Medical Assessment Certificate dated 14 October 2011, is reserved for hearing on 14 February 2011 [sic, 2012] at 10.00am”.
On 14 February 2012 Ms Ring appeared before the Arbitrator without the benefit of legal representation. The matter was adjourned and fixed for hearing on 4 June 2012. At that hearing Ms Ring again appeared unrepresented. The matter proceeded to hearing and the Arbitrator reserved his decision. A Certificate of Determination, accompanied by a Statement of Reasons (Reasons) was issued on 27 June 2012. The Arbitrator’s determination was as follows:
“The Commission determines as follows:
1. The Commission is not satisfied that physiotherapy, massage therapy and exercise therapy are reasonably necessary as a result of injury to the thoracic and lumbar spine, neck, both legs, both hips and both arms on or about 28 May 2007.

2. Award for the respondent in respect of the claim for the costs of future physiotherapy, massage therapy and exercise therapy as a result of the injuries referred to above.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

ISSUES IN DISPUTE

Documentation relevant to this appeal has been prepared and filed with the Commission by Ms Ring in person. Grounds of Appeal are enumerated at [2.8] of the Application concerning the appeal as follows:
“Grounds of Appeal
· Error of Law Fact or Discretion
1.QBE have not denied it
2.Why Physio/Massage and exercise are so important
3.Treason – QBE have not been helping me in anyway
4.My Ability to work
5.Exacerbation of injuries
6.Misinterpretation of Reports
7.Integrity of Reports
8.Dr Allan Homes [sic, Home’s] inadequate explanation
9.Dr Allan Home [sic, Home’s] Qualifications
10.House, Car, and Phone, do qualify for this application
11.My Rehabilitation Plan.”
It may be seen that the grounds as expressed raise matters which were not before the Arbitrator for his determination. Those matters are elaborated in written submissions put by Ms Ring on this appeal.
It is clear that Ms Ring challenges the Arbitrator’s finding that further treatment by way of physiotherapy, massage therapy or exercise therapy had not been proven to be reasonably necessary in terms of s 60 of the 1987 Act.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the appeal has been commenced within the time prescribed by s 352(4) of the 1998 Act.
The respondent submits that there is an absence of evidence before the Commission concerning the likely cost of exercise therapy, physiotherapy and massage therapy. In the absence of such evidence, it is argued, Ms Ring has failed to establish that the monetary threshold as fixed by s 352(3) of the 1998 Act has been met. It is acknowledged by the respondent that Ms Ring has asserted that the cost of the proposed exercise therapy which would be incurred totals $24,000. That evidence also includes an estimate by Ms Ring of the future costs for physiotherapy/massage as being $145,600. Whilst it is correct, as put on behalf of the respondent, that there is no expert evidence concerning these matters, the estimates found in the evidence of Ms Ring constitutes some evidence of the likely cost of future treatment. In the absence of any other evidence on this subject, I accept that the probable cost of the therapy which is the subject of the Application would likely exceed the monetary threshold as found in s 352(3) of the 1998 Act.

FRESH EVIDENCE

The admission on appeal of fresh evidence or evidence in addition to or in substitution for the evidence received before the Arbitrator is governed by the provisions of s 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Practice Direction No 6 sets forth the procedure to be followed by a party when leave to adduce fresh evidence or additional evidence on appeal is sought.
At [2.5] of the Application filed by Ms Ring concerning this appeal it is stated that she wishes to rely on “new evidence” which is said to be “mostly old evidence that everybody has seen”. That material is identified in that paragraph and comprises 27 documents produced by health professionals, a Commonwealth Bank statement dating from March to June 2012, various brochures and a large number of copies of receipts.
On 24 August 2012 Ms Ring filed an Application to Admit Late Documents with the registry. That Application had 10 documents attached to it and submissions were included seeking orders that the documents be received by the Commission in evidence. Whilst it is plain that Ms Ring has misconceived the appropriate procedure concerning fresh evidence on appeal, it is clear that it was her wish that those documents be before the Commission as fresh evidence.
On 14 September 2012 Ms Ring provided “Submissions in Response to Opposition Form 9A”. That document includes submissions under the heading “New Evidence” and a large number of documents were attached to the Response. Some of those documents had been included in the applications referred to above.
I note that a number of the documents identified in the various applications are in evidence and have been the subject of the Arbitrator’s consideration.
A large number of the documents nominated relate to items which Ms Ring has suggested she was entitled to receive from the respondent, it seems, pursuant to s 60 of the 1987 Act. Those items include a new Mini Cooper Cabrio, a house, an apple iphone, an electric bicycle and sundry other items described in brochures which are provided.
There is also a document which was rejected by the Arbitrator when tendered by Ms Ring at the hearing of the arbitration, being a medical certificate dated 22 May 2012 addressed to Centrelink issued by Dr Eugene Ang.
A further report of Dr Ang, dated 24 May 2012, addressed to Dr Cullen is included in the documents which Ms Ring seeks to tender as fresh evidence on this appeal.
Leaving aside the question as to whether Ms Ring has complied with the requirements of the relevant practice direction, it is clear that the vast majority of the documents identified by Ms Ring as proposed fresh evidence or additional evidence have no relevance to the question raised on this appeal, namely whether the Arbitrator was in error in finding that Ms Ring had not proven that the provision of future physiotherapy, massage therapy or exercise therapy was reasonably necessary as a result of the subject injury.
The report of Dr Ang noted at [23] above includes the following:
“Impression: this lady meets the criteria for fibromyalgia. It is a neuropathic pain disorder associated with low serotonin and I have discussed this with her”.
Dr Ang stated in that report that he had suggested the conduct of MRI investigations of the brain, neck, thoracic and lumbar areas. Those investigations were conducted in early September 2012. A report of those studies by Dr Jacqui Thomson dated 6 September 2012 is among the documents which Ms Ring seeks to tender on this appeal.
I am of the opinion that the documents noted between [21] and [26] above, have no relevance to the issues raised on this appeal. The apparent diagnosis made by Dr Ang has not been, by reason of short notice, considered by the respondent. It is not clear on the material produced by Ms Ring whether there is a clear causal nexus alleged between that condition and the subject injury, nor is there any evidence to be found in those documents that the future treatment addressed by the Arbitrator is reasonably necessary. Leave to tender those documents on this Application is refused.
There has been a failure to establish that those documents which predate the hearing before the Arbitrator, many of which are dated between 2007 and 2010, could not reasonably have been obtained by Ms Ring before that hearing.
More recent documents, being a report from Ms Elizabeth Pyne, dated 1 May 2012, the questionnaire completed by Dr Cullen dated 9 July 2012 and the short report of Mr Ian Lowther, Sports Physiotherapist, dated 6 July 2012 concerning massage sessions, should not, in my opinion, by admitted as fresh evidence on this appeal. Those documents do not add any evidentiary material of such weight that it may be said the interests of justice requires that they be admitted. The balance of those documents which Ms Ring wishes to tender as fresh evidence, by reason of their irrelevance to the issues and the absence of an explanation as to why those documents could not have been obtained and presented before the Arbitrator, should not be admitted and I so order.

THE ARBITRAL PROCEEDINGS

The proceedings before the Arbitrator were recorded and a transcript (T) has been produced. As earlier noted, Ms Ring appeared in person. The respondent was represented by Counsel.
The documentary evidence which was before the Arbitrator was identified by him at [12] of Reasons. That material included late evidence admitted at the hearing being copies of two letters of Dr Ariane Cullen, each dated 26 April 2012 and a report of Mr Ian Lowther, Physiotherapist, dated 11 April 2012 addressed to Dr Cullen. No oral evidence was adduced at the hearing.
Ms Ring responded to the Arbitrator’s invitation to put submissions by outlining her need for ongoing treatment as well as her need for an electric bicycle, appropriate sports clothing, vitamin supplements, sleeping herbs, special shoes and a magnetic quantum pendant. Other items stated by Ms Ring that were required by her included a car. An estimate of the value of these items was given by Ms Ring as being $484,913, which sum did not include the cost of a car.
Ms Ring proceeded to state her need for a telephone, a holiday and that she wished to buy an apartment “for $600,000”. Ms Ring concluded by stating “and that’s all I’m asking for today”. Counsel for respondent was not called upon by the Arbitrator to put submissions.

The Arbitrator’s decision

The Arbitrator identified the only issue remaining to be determined, having regard to earlier settlements noted above at [3] and [6], as being whether “ongoing physiotherapy, massage therapy or exercise therapy are reasonably necessary as a result of [the subject injury]”. It was noted that the onus of establishing that matter was upon Ms Ring.
It was further noted by the Arbitrator that Ms Ring had sought orders for payment of those sundry items which are summarised above at [32] and [33]. It was noted that those matters were not included in the claim which was before the Commission. The question of the respondent’s liability for those items was, it was observed by the Arbitrator, not a matter for determination in the proceedings.
The Arbitrator, between [25] and [54] of Reasons, made a careful and detailed summary of the expert evidence before him. The opinion of Dr Home, the AMS, was preferred to that opinion expressed by Dr Wong for the reasons stated at [45] of Reasons.
Following a consideration of relevant authority including Rose v Health Commission (NSW) (1986) 2 NSWCCR 32 (Rose), Pelama Pty Ltd v Blake (1988) 4 NSWCCR 264 and Bartolo v Western Sydney Area Health Service (1997) 14 NSWCCR 233, the Arbitrator returned to a consideration of medical and other expert evidence. A conclusion was reached that “the weight of the medical and allied evidence favours the view that neither physiotherapy, nor massage therapy, nor exercise therapy, is reasonably necessary” (at Reasons [72]). The Arbitrator proceeded to enter the award which is recorded at [7] above.

DISCUSSION AND FINDINGS

The relevant provisions of the 1987 Act which govern the Commission’s power to make an order in respect of the cost of proposed treatment or service are found in s 60. That section, relevantly, provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1)If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided, the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
...
(5)The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute must be referred by the Registrar for assessment under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act, unless the regulations otherwise provide.”

It seems that the dispute concerning proposed treatment or services had become apparent when the matter was listed before the Arbitrator on 8 June 2011. As earlier noted, all other issues had been resolved and appropriate orders were made on 6 December 2011. I note in passing that the respondent had given notice of dispute, as required by the provisions of s 74 of the 1998 Act, concerning liability in respect of proposed treatment or services in correspondence to Ms Ring dated 26 April 2011.
It is apparent that Ms Ring has misapprehended the nature of the proceedings. This is demonstrated, firstly, by the form of the Application which instituted the appeal. The coversheet to that Application is addressed to the Arbitrator and is endorsed:
“Thank you for accepting further evidence for your decision to cover my Future Physiotherapy, Massage and exercise costs, to assist in my Work Rehabilitation and Medical requirements as in the Workers Compensation Law Act [sic] section 326”.
Secondly, the submissions put by Ms Ring plainly relate to “claims” well outside the claim as defined by the Arbitrator when orders were made on 6 December 2011 setting the matter down for hearing.
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
Ms Ring has presented lengthy submissions which accompany her Application and her response to the respondent’s arguments. Much of the substance of those submissions has little relevance to the issue for determination on this appeal. That issue is whether the Arbitrator has erred in concluding that Ms Ring had failed to establish that the future treatment and services, which were the subject of referral to Dr Home, were reasonably necessary.
The question before the Arbitrator was essentially one of fact. In determining the matter the Arbitrator had been guided by those matters addressed in the authorities noted at [37] above. The Arbitrator had adopted those matters stated by Burke J in Rose as being relevant as follows, (at 46):
“In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:
1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.     However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.     Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.     It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.     In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
There was no dispute that the services, being physiotherapy, massage therapy and exercise therapy, fell within the meaning of “proposed treatment or service” as found in s 60(5) of the 1987 Act. The only issue raised was the question as to whether those services were “reasonably necessary” within the meaning of s 60.
In determining that question the Arbitrator had given careful attention to the medical and other expert evidence concerning, as stated by Burke J, “the relevance and appropriateness of the particular treatment”.
The evidence considered by the Arbitrator included that of Dr Ashwell, Orthopaedic Surgeon, Dr Slinger, Orthopaedic Surgeon, Dr Kent Morison, General Practitioner, Dr Wong, Orthopaedic Surgeon, Dr Cullen, General Practitioner, and Dr Home, the Approved Medical Specialist, as well as the evidence of six physiotherapists being Mr Thomason, Mr Oldmeadow, Mr Verity, Mr Baines, Mr Kelly and Mr Lowther.
The conclusion reached by the Arbitrator was, in my opinion, open to him on the evidence and no error on his part, in my view, has been established. I note that Ms Ring, at [5] of her Response dated 14 September 2012 asserted that “everybody except Dr Home recommends Physio/massage and exercise”. That assertion is not borne out by an examination of the evidence as a whole. Indeed the only witnesses that expressly advise ongoing treatment of this nature are Mr Thomason as expressed in a report dated 25 October 2007; Mr Oldmeadow, who suggested in 2010 conduct of a “carefully tailored exercise program”, and Dr Slinger who, in 2010, advised a “regular stretching and strengthening program” directed by a physiotherapist, following which Ms Ring would be able to “self direct”. Dr Wong, as noted by the Arbitrator, did not expressly identify the “treatment” which he considered reasonably necessary. The manner in which his opinion was expressed gave rise to the Arbitrator’s preference, as earlier noted, for the views of Dr Home. The balance of the expert evidence, as summarised by the Arbitrator in his Reasons, either did not expressly address the issue of “reasonable necessity” or expressly stated that there was no reasonable necessity for such future treatment.
As earlier stated, there has been no relevant error demonstrated. In the circumstances the decision of the Arbitrator is to be confirmed on this appeal. Appropriate orders appear below.

DECISION

The finding and order of the Arbitrator made in Certificate of Determination dated 27 June 2012 are confirmed.

COSTS

No order as to costs of this appeal.

Kevin O'Grady

Deputy President
2 October 2012

I, VALDA TAYLOR, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE