Rope and Comcare (Compensation)

[2024] AATA 3005

Rope and Comcare (Compensation) [2024] AATA 3005 (23 August 2024)

Division:GENERAL DIVISION

File Number(s):      2022/3101, 2022/3595, 2022/3596

Re:Eleanor Rope

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President O'Donovan

Date:23 August 2024

Place:Canberra

That the decision under review in application 2022/3101 be varied and the applicant’s claim for reimbursement of the identified philosophy textbook be accepted.

The decisions under review in applications 2022/3595 and 2022/3596 are affirmed.

…………….[SGD]…………….

Deputy President O'Donovan

Catchwords

COMPENSATION – somatic symptom disorder – whether materially contributed to by employment – three separate claims – claim for reimbursement for a philosophy textbook – claim for enrolment at the University of the 3^rd Age – claim for psychological treatment –whether medical treatment that is reasonable to obtain – decisions under review affirmed

Legislation

Safety Rehabilitation and Compensation Act 1988

Cases

Rope and Comcare [2020] AATA 59
Woodhouse v Comcare [2021] FCAFC 95

REASONS FOR DECISION

Deputy President

Introduction

1. The applicant has filed three applications with the Administrative Appeals Tribunal (Tribunal) in relation to claims for compensation under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).

2. The three decisions under review rejected the following claims made by the applicant:

   (a)2022/3101: reimbursement for a philosophy textbook in the sum of $20.00;

   (b)2022/3595: approval of attendance at classes with the University of the Third Age;

   (c)2022/3596: approval of further psychological treatment.

   Background

3. Mrs Rope has a longstanding pain condition, which has both physical and psychological components. She has sought to manage her symptoms in a variety of ways over many years and Comcare has, by and large, been prepared to pay compensation in relation to the treatments she has sought. However, in recent years Comcare has taken the view that the treatments are not effective in the sense that they have not brought about any discernible improvement in Mrs Rope’s symptoms, beyond perhaps some temporary relief of acute symptoms. Comcare has taken the view that the treatments do not constitute medical treatment that it is reasonable for Mrs Rope to obtain. Mrs Rope’s view is that while her condition does not improve as a result of the treatment, in the absence of the treatment her symptoms worsen. Consequently, it is reasonable for her to obtain the treatment.

4. The three reviewable decisions that are the subject of this review can be summarised as follows:

   (a)Comcare declined liability for practical philosophy classes and related reading in 2020. The classes were an activity recommended by Mrs Rope’s GP. Mrs Rope had been attending the classes weekly since 2012. Comcare found that the philosophy classes were medical treatment but the related reading material was not. Comcare found that the treatment was obtained in relation to Mrs Rope’s medical condition, but the classes were not reasonable treatment in the circumstances. In particular, the treatment was not shown to be effective at empowering the applicant towards self-management. In her statement of facts issues and contentions filed during the course of these proceedings, the applicant conceded that as she does not intend to re-enrol ‘there is nothing further to be claimed except the $20 for the textbook used by the class in late 2019’. The respondent in its opening statement at the hearing consented to the Tribunal making a variation of the decision under review (2022/3101) to allow for reimbursement of the philosophy textbook. I will vary the decision under review accordingly.

   (b)Comcare initially declined liability for various classes at the University of the Third Age in 2022. These classes include; meditation and mindfulness, basic yoga and philosophy, and ethics. Comcare found these classes were medical treatment, but were not reasonable as they were not goal-focused and were not successful in empowering the applicant to self-manage. The applicant sought internal review of the decision on the basis that in the absence of funding for the claimed treatments her condition had deteriorated. Comcare found that the classes were medical treatment which was obtained in relation to the applicant’s compensable condition. However, the treatments were not reasonable as they were not effective and did not empower the applicant toward self-management. The applicant had at that point undertaken similar classes from 2012 to 2019. Comcare noted that for the classes in 2022, Dr Whiting (the applicant’s GP) had not provided any discussion of the classes just an endorsement of them on the basis that the applicant had found them helpful previously. The endorsement by Dr Whiting did not persuade the delegate that the classes were reasonable (date of decision: 18 March 2022).

   (c)Comcare declined further psychology treatment detailed on the treatment plan by Dr Kerry Leahan (psychologist) dated 11 February 2022. Further psychological treatment had been denied previously by Comcare and that decision affirmed by the Tribunal in Rope and Comcare [2020] AATA 59. Comcare found that the treatment was medical treatment obtained in relation to the applicant’s compensable condition. However, Comcare found that the treatment was not reasonable to obtain in the applicant’s circumstances. The applicant was seeking 12 sessions over a 40-week period on the basis that her condition had deteriorated over the previous 2 years following the ending of psychological treatment. The applicant’s concern was that her condition would deteriorate further if treatment was not resumed. Comcare found that given that the applicant had been unable to make a transition to self-management despite 600+ sessions previously, the treatment was not reasonable (date of decision: 24 March 2022).

5. Subsequently the respondent put the following matters in issue in these proceedings in its Statement of Facts, Issues and Contentions.

6. First, whether the applicant currently suffers from a psychological condition that continues to be materially contributed to by her former employment with the Commonwealth. If I were to accept this argument, the applicant would not be entitled to compensation of any sort under the SRC Act.

7. Second (in application 2022/3595), whether the University of the Third Age classes are medical treatment as defined in section 4 of the SRC Act, and if so, whether they are obtained in relation to the applicant’s compensable conditions, and if so, whether they are reasonable to obtain in the circumstances.

8. Third (in application 2022/3596), whether the claimed psychological treatment is being obtained in relation to the applicant’s compensable conditions, and if so, whether it is reasonable treatment for the applicant to obtain in the circumstances.

9. I will deal with each of these issues in turn having regard to the following material.

   Evidence

   The evidence before me consisted of the following:

EXHIBIT	DESCRIPTION	DATE OF DOCUMENT	DATE MADE AN EXHIBIT
A1	Page 1 of a Letter from Dr/Prof David Champion filed 10 September 2023	21 July 1997	14/09/2023
A2	Email from the applicant about her health problems	10 September 2023	14/09/2023
A3	Email correcting spelling of French philosopher’s name	10 September 2023	14/09/2023
A4	Applicant’s pain and sleep diary documents, filed March 2023	March 2013, 2018 – 2022	14/09/2023
A5	Medical report of Dr K Leahan, filed 5/09/2022	22 July 2022	14/09/2023
A6	Letter of support for applicant by Dr Kerry Leahan, filed 31/03/2023	30 March 2023	14/09/2023
A7	Dr K Leahan’s clinical notes, filed 6/09/2022	2020, 2021, 2022	14/09/2023
A8	Medical report of Dr Jane Foley, and post-2019 notes, filed 6 September 2022	21 July 2022	14/09/2023
A9	Medical report of Dr Meredith Whiting dated 13 July 2022, notes dated post-2019, filed 5/09/2022, medical certificate dated 19 August 2022, filed 7 September 2022	13 July 2022, 19 August 2022	14/09/2023
A10	DASS reports of applicant	4 January 2023, 14 October 2023	14/09/2023
A11	Certificate of Capacity for Work for applicant by Dr Jane Foley, filed 4/10/2022	29 September 2022	14/09/2023
A12	Notes of Eleanor Rope, filed 25/10/2022	2018 – 2022	14/09/2023
A13	Summary of pain diary of Eleanor Rope, filed 5/11/2023	2018 – 2023	1/08/2024

1. I have also had regard to material in the T-Documents to the extent that it records historical matters concerning the claims including Tribunal decisions.

2. In addition to the evidence listed above, I have had regard to the following submissions:

   ·Respondent’s opening submissions dated 13 September 2023;

   ·Respondent’s closing submissions dated 13 December 2023, filed on 13 December 2023

   ·Applicant’s closing submissions in 10 emails dated and filed between 16 and 23 November 2023

3. After the timetable for submissions closed the applicant continued to file material without leave. I have not had regard to the following:

   ·Email from applicant of 27 November 2023;

   ·Email from the applicant of 30 November 2023;

   ·Email from applicant of 19 December 2023; and

   ·Email from applicant of 12 February 2024, headed ‘Without Prejudice’.

   Does the applicant have a psychological condition materially contributed to by her employment?

4. As noted above, the respondent now contends that the applicant is no longer suffering from a psychological condition materially contributed to by her employment.

5. The respondent accepts that the applicant continues to suffer from a psychological ailment – most likely a somatic symptom disorder. However, the respondent no longer accepts that the condition is materially contributed to by her employment. This is a significant departure from the bases on which Comcare has dealt with Mrs Rope’s claims over the years. Before considering the contemporary evidence on the topic, it is worth setting out relatively briefly, the history of the applicant’s conditions. The following represent my findings of fact.

6. The applicant was involved in a motor vehicle accident on her way to work in March 1987. She suffered an immediate whiplash injury in the accident. Despite the injury she was able to return to work in a relatively short space of time. However, pain from the accident persisted as did the need for treatment. The applicant’s pain became chronic and other psychological symptoms developed. In 1999 the applicant was invalidity retired from the Public Service and has not worked since.

7. In 2000 the applicant made a claim for permanent impairment under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The Comcare delegate accepted that the applicant suffered from some form of psychiatric impairment which was permanent. The degree of impairment was assessed at 10% under the Guide to the Assessment of Degree of Permanent Impairment. This decision has been treated as amounting to an implied acceptance that the applicant was suffering from a psychological condition that originated from the physical injuries she suffered in the motor vehicle accident in 1987.

8. As the applicant’s symptoms have developed and persisted, there has been disagreement among health professionals about whether the applicant’s ongoing symptoms are organic or psychological in origin. In the late 1990s the weight of the medical evidence favoured the view that the applicant suffered from an organic pain disorder combined with a major depression.

9. As the applicant’s pain symptoms persisted and her symptoms of depression seemed to lift, the weight of the evidence suggested that her symptoms were better classified under the descriptor somatic symptoms disorder. Dr Leahan, the applicant’s treating psychologist in 2019, was unable to conclude that the applicant was suffering from symptoms that would qualify as a major depressive disorder. Dr Jetnikoff, a psychiatrist briefed by Comcare in the context of earlier AAT proceedings, gave an affirmative diagnosis of somatic symptom disorder. Dr Leahan accepted that an additional diagnosis of generalised anxiety disorder was not appropriate where a somatic symptom disorder diagnosis adequately explained the symptoms. This evidence is available in the Tender Bundle and is recorded in the decision of Deputy President Humphries in Rope and Comcare.[1]

   [1] TB 504 [48], [2020] AATA 59.

10. A diagnosis of somatic symptoms disorder is significant because it is a psychiatric disorder rather than a physical condition and it explains both the physical and psychological symptoms that the applicant reports. It also explains why psychological therapies directed at treating anxiety and depression are not appropriate means of dealing with the diagnosed condition.

11. For these reasons, Deputy President Humphries affirmed Comcare’s decision not to fund ongoing psychological counselling. There was no suggestion in his decision that Mrs Rope’s somatic symptoms disorder was not compensable. It should be noted that not all the applicant’s treating doctors accepted that diagnosis, and her treaters continue to treat her for anxiety and depression.

12. Dr Meredith Whiting, the applicant’s psychiatrist, has been supportive of a wide range of treatments for the applicant without being specific about the condition from which she suffers.[2] She has however produced certificates supportive of an employment contribution.[3]

    [2] See TB 528.

    [3] See, eg, one dated 7 December 2021, at TB 528.

13. On 13 February 2023, consultant psychiatrist Dr Shiva Gunapu was asked by Comcare whether, in his opinion, the applicant’s ‘psychological condition continues to be materially contributed to by her employment/accepted physical conditions’. His response was as follows:

    I accept there are no specific work-related stressors for her as she medically retired in 1999. The issues appeared to be her own perception of the severity of the injury and the disproportionate amount of energy she expended on it. This includes contesting and attempting to validate her experiences as real and true; unfortunately, her condition of somatic symptom disorder cannot be materially contributed by accepted physical conditions but is largely contributed by personality axis and iatrogenic elements, the dispute itself, possible age-related concerns, as well as other general medical stressors. I agree that many psychological discussions centred on advocating for her support in Comcare proceedings. Unfortunately, there was a high degree of fixation on this matter and a disproportionate amount of time spent on this issue both by the claimant and her therapists, reinforcing her beliefs about her illness. The COVID-19 lockdown has resulted in increased social isolation. She was stressed about the infection itself.[4]

    [4] TB 587.

14. Comcare relies upon this report to contend that the applicant’s condition is not compensable because it is no longer materially contributed to by the applicant’s employment.

    Consideration

15. In considering whether the applicant’s condition is materially contributed to by her employment, one thing can be stated with reasonable certainty. The applicant presently suffers from a diagnosable psychiatric illness. While there is a degree of disagreement between the doctors briefed by Comcare and the applicant’s treating doctors, a diagnosis of somatic symptoms disorder is better supported than a diagnosis that the applicant is suffering from organically based pain which has led to a major depressive disorder and anxiety.

16. The next question is whether the applicant’s condition continues to be materially contributed to by her employment. The respondent contends that I should be satisfied that it is not. The respondent relies upon the opinion of Dr Gunapu and the fact that the clinical notes of the applicant’s treating doctors reveal a person who is most troubled by her interactions with Comcare rather than the employment matters which contributed to the onset and deterioration in her condition.

17. In some contexts I might be persuaded by these arguments. With psychological ailments it is possible that with the passage of time the employment contribution recedes to a point where it can no longer be said to be making a material contribution – see for example Woodhouse v Comcare [2021] FCAFC 95. However, the applicant has since 1987 been the subject of regular close examination by independent medical experts. Dr Gunapu is the first specialist to cast doubt upon the continuing connection between her condition and her employment.

18. Dr Nicholas Jetnikoff, in a very thorough report prepared in 2015, specifically addressed the contribution question. He concluded, in relation to the motor vehicle accident on 9 March 1987:

    I suspect that the pain disorder [his diagnosis at the time] cannot be attributed to any other thing that occurred around this period of time other than the accident in March 1987 where the original injury occurred. Despite some minor fluctuations pain has been a consistent feature since that time in documentation. The level of impact has definitely grown over time with subsequent progressive disability.  [5]

    [5] TB 464.

19. There have not been any developments, since Dr Jetnikoff reported, that suggest a different analysis is appropriate. The 1987 incident triggered the applicant’s pain symptoms, which evolved into the somatic symptoms disorder from which she now suffers. As the initiating cause, I am satisfied that this constitutes a material contribution.

20. Dr Gunapu offers a quite different theory. His contention is that there is no physical cause for the applicant’s condition and that it derives from her personality. This opinion is unique amongst the doctors who have examined the applicant over the years, including treating doctors and independent medical examiners. In these circumstances I am not persuaded that the consensus, which has persisted for decades, should be overturned.

21. I have considered whether Mrs Rope’s obvious fixation on her relationship with Comcare when she attends for treatment suggests that the original cause of her condition has now been displaced. I am not satisfied that it has. While the applicant is clearly disturbed by her interactions with Comcare, her fundamental problem remains her perceptions of pain. These perceptions have their origin in the accident she suffered in 1987 and the experiences which followed in the workplace. I am satisfied that the applicant’s employment materially contributes to her current somatic symptoms disorder.

22. In light of this finding it is necessary to consider the substance of the two remaining claims for medical treatment.

    2022/3595: approval of attendance at classes with the University of the Third Age (U3A)

23. The applicant has for many years received funding from Comcare for medical treatment which could be described as unconventional. From 2012 to 2019 Comcare funded the applicant’s participation in a practical philosophy course. There was no discernible improvement in the applicant’s condition as a result. Despite this, the applicant’s contention has always been that the practical philosophy course, which was supported by her treating doctors, was medical treatment in relation to her injury and it was reasonable for her to obtain that treatment.

24. For practical reasons, the applicant was unable to continue the practical philosophy course after the end of 2019. She now seeks to have her attendance at courses run by the University of the Third Age (U3A) (including yoga and philosophy) funded as medical treatment.

25. Mrs Rope does not contend that the attendance will cure her condition or necessarily bring about much or any functional improvement. She does however say that attendance at the course will prevent her from significantly deteriorating. That being the case, she submits, course attendance amounts to medical treatment that it is reasonable for her to obtain.

1. The respondent contends that the U3A classes:

   (a)Do not constitute ‘medical treatment’ as defined in s 4 of the SRC Act;

   (b)Are not reasonable to obtain in the circumstances; and

   (c)Are not obtained in relation to the applicant’s somatic symptom disorder.

2. It is unnecessary for me to definitively resolve whether the U3A classes constitute medical treatment and if so whether the treatment is obtained in relation to the applicant’s somatic symptom disorder as I am satisfied that, even if the classes meet those tests, they do not constitute treatment that it is reasonable for the applicant to obtain.

3. The respondent relies upon the report of Dr Gunapu in relation to this issue. Dr Gunapu’s opinion is that:

   [The applicant’s] illness is not being treated by the lessons. These classes cannot cure somatic symptom problem. She may benefit from social contact, but the effort she expends requires her husband to driver her 45 minutes every time to attend a class. She is already associated with the local church. These classes have no specified objectives. They appear to be highly generic, non-specific, and can be viewed as a routine supportive treatment. This is easily accessed through many local council, or other within the GP primary mental health network system for persons her age group, including older adults, provide by the Department of Health and Ageing…

   [A]ttendance of classes will not empower her further and will in fact make her more dependent on non-specific treatment … I do not recommend she undertake these classes.[6]

   [6] TB 590.

4. The opinions Mrs Rope contends are supportive of the classes all proceed on the basis that she has deteriorated as a result of being unable to attend the practical philosophy classes since the end of 2019 and a close substitute should be found to arrest this decline. The evidence of the decline is that the applicant’s use of medication has increased, and her activity levels have decreased.

5. It is difficult to accept this evidence as soundly based. The applicant ceased her practical philosophy course at the end of 2019. She did not commence attendance at U3A until February 2022.

6. In the period when the applicant was attending the practical philosophy course her use of opioids was already high (as documented by Dr Jatnikoff). Her use of opioids did not increase when the practical philosophy course ended. According to Mrs Rope’s summary of her pain diary, her use of opioids did not spike until the second half of 2021. Her use of opioids then increased significantly.

7. Similarly, there is no correlation between the ending of the applicant’s attendance at the practical philosophy course and her increased use of Valium. Even assuming that Valium is used to treat the applicant’s compensable condition, which is by no means obvious, there is no evidence of increased use of Valium following the ending of the practical philosophy courses. The Valium usage of the applicant, as summarised in the Schedule to the respondent’s opening submissions, indicates that the applicant’s usage of Valium decreased between December 2020 and April 2021 and it was only in late 2021 that the applicant’s usage increased significantly.[7] Given the many confounding factors such as COVID-19 lockdowns and the anxiety induced by the applicant’s disputes with Comcare, there is only very weak evidence that the courses the applicant enjoys engaging in are therapeutic, in the sense of arresting decline and reducing dependence on medications.

   [7] See, eg, TB 525; TB 521; TB 526.

8. In the absence of credible evidence supporting any decline being associated with the withdrawal of courses for the applicant, I prefer the evidence of Dr Gunapu, which is essentially that the courses are the equivalent of an enjoyable outing, and an equivalent event should be accessed in the applicant’s local area.

9. In these circumstances I am not satisfied that it is reasonable for the applicant to obtain treatment in the form of courses at the U3A.

   2022/3596 Treatment by a psychologist

10. The applicant is seeking treatment with a psychologist as detailed on the treatment plan proposed by psychologist Dr Kerry Leahan dated 11 February 2022. The treatment proposed was for the applicant to receive 12 services from Dr Leahan over 40 weeks.  

11. Despite Comcare’s decision not to pay for the treatment, the applicant still attended Dr Leahan under a Mental Health Care Plan funded through the Medicare system. During COVID restrictions she was entitled to up to 20 visits to a psychologist under Covid-19 amendments to Medicare services that were introduced on 13 March 2020. Mrs Rope has attended Dr Leahan on at least 17 occasions since 11 February 2022.

12. Mrs Rope claims that the treatment proposed constitutes medical treatment obtained in relation to her condition, which it was reasonable for her to obtain. Mrs Rope’s treating doctors support the treatment on the basis that, without it, Mrs Rope’s compensable condition will deteriorate.

13. Comcare contends that the treatment Mrs Rope has obtained from Dr Leahan is neither reasonable nor is it in relation to her compensable condition.

14. The applicant’s access to psychological counselling has a long history. In August 2014 Comcare advised Mrs Rope that a review of her psychological treatment was to be undertaken. At that point in time Mrs Rope had attended a psychologist in excess of 500 times.

15. In October 2014, Comcare’s Clinical Panel Consultant reviewed Mrs Rope’s psychological treatment. The applicant’s then treating psychologist was Ms Sweetenham. Ms Sweetenham agreed with the Panel Clinical Consultant that Mrs Rope could feasibly cease her psychological treatment in the near future, and a proposal to have this process completed by the end of January 2015 was agreed upon. In November 2014 Comcare issued a determination accepting fortnightly sessions of psychology treatment between August 2014 and January 2015. However, prior to the ending of treatment in January 2015, concerns were expressed by Mrs Rope about the ending of treatment. In January 2015 Comcare affirmed the decision to cease treatment at the end of January 2015. No further psychological treatment was funded after that.

16. Comcare affirmed a decision to reject further psychological treatment on 28 July 2015. The decision was based on the opinion of Dr Jetnikoff, who noted that the treatment Mrs Rope received was generic and supportive in nature with no evidence of this being of benefit to managing Mrs Rope’s condition.[8] Mrs Rope’s GP at the time, Dr Welberry, supported further treatment on the basis that its aim was to maintain some quality of life and to prevent deterioration,  and she believed that supportive counselling was justifiable treatment for the applicant.[9]

    [8] TB 467.

    [9] TB 480-1.

17. Comcare rejected the claim on the basis that the psychological treatment was not reasonable to obtain. Mrs Rope applied to the Tribunal for review of that decision on 3 August 2015. On 9 October Mrs Rope withdrew her application for review.

18. In December 2016 the applicant sought further psychological treatment. The claim was denied. It was denied on the basis that the treatment was related to Mrs Rope’s frustration in dealing with Comcare, the treatments were not evidence based, the effects of the treatment were short lived and did not progress Mrs Rope towards self-management. That decision was affirmed on 19 May 2017.

19. On 15 June 2017 Comcare undertook a reconsideration of own motion following an in-house facilitation. Comcare accepted that psychological treatment was reasonable medical treatment in relation to the injury and assisted Mrs Rope to self-manage. Compensation was found to be payable for one psychological treatment every 8 weeks commencing June 2017 until December 2017 and re-imbursement was to occur for three previous sessions attended since March 2017. The agreement was that Mrs Rope would transition to self-management.

20. When a further claim was made in February 2018 for psychological treatment it was rejected. That decision was affirmed on review on 20 April 2018. That decision was reviewed by the Tribunal. The decision was affirmed by Deputy President Humphries on 22 January 2020. The Tribunal accepted that the applicant suffers from a somatic symptom disorder, and that this is related to the car accident in 1987. The Tribunal however was not satisfied that the applicant’s treatment was reasonable for the applicant to obtain. The Tribunal concluded:

    It is not without significance that all Mrs Rope’s expert witnesses were treating rather than medicolegal witnesses. The Tribunal gained the impression that all appeared, in varying degrees, as advocates for Mrs Rope…

21. The Tribunal was satisfied that:

    The outlook for Mrs Rope at the end of the present hearing, however, is somewhat different to that confronting the Tribunal in 2018. The evidence at this time is much more congruent with the view that Mrs Rope has become dependent on the treatment in question – here, psychological counselling – so as to inhibit her capacity to self-manage her condition. That state of dependency must necessarily undermine any finding that the treatment is reasonable pursuant to s 16…[10]

    …

    The determinative consideration in reaching the view that the treatment is no longer reasonable to obtain is that it is not effective…Dr Jetnicoff said that pain disorders generally have a very poor response to treatment particularly if they go through any length of time, an outlook exacerbated in Mrs Rope’s case by her unwillingness to work on any therapy issues due to a limited insight and her entire focus on pain. Her treatment regime over 30 years would appear to bear out that assessment…On balance, the Tribunal sees benefit in ending Comcare’s involvement in Mrs Rope’s psychological counselling immediately, not in the future.[11]

    [10] TB 512.

    [11] TB 513.

22. Soon after that decision COVID-19 lockdowns commenced.

23. In September 2020 the applicant’s GP recommended that the applicant undertake psychological counselling at least monthly for pain and stress management. In a report dated 17 January 2021, Dr Welberry, who had given evidence in the Tribunal in relation to the previous claim and whose evidence was not preferred by the Tribunal, recommended approval for psychological counselling on a regular basis as ‘an essential part of maintaining her ability to cope with ongoing chronic pain and depression’. Dr Welberry expressed the view that from 2012 until the end of 2019 the counselling the applicant received ‘proved invaluable to Mrs Rope, and assisted her in self-management’. That proposition had been expressly rejected by the Tribunal when it considered the matter in 2020.

24. In 2021 Dr Jane Foley became the applicant’s GP.

25. In April 2021 the applicant underwent an electroencephalographic assessment administered by psychologist Dr Leahan. This was done with a view to doing more sessions described as neurofeedback sessions to assist with poor sleep and chronic pain. Dr Leahan noted that the ‘results show that Mrs Rope has not deteriorated over time and that her EEG is relatively unchanged from 2019. Further neurofeedback sessions may be beneficial, however, given that she has already had 64 sessions of neurofeedback, I cannot guarantee that she will achieve further benefit’.

26. In December 2021 the applicant’s psychiatrist Dr Whiting recommended the applicant have further psychological counselling for pain and stress management. She recommended it occur at least monthly, but that more regular visits may be required. Further neurofeedback sessions may be required, which involved 6-10 weekly sessions. The report to support these recommendations was devoid of any justification.

27. On 24 March 2022 Comcare declined psychology treatment with Dr Leahan. On 22 April 2022 that decision was affirmed. The applicant applied to the Tribunal for review.

28. In support of her application the applicant provided a pain diary summary. It indicates that in relation to her use of medication, 2020 was one of the applicant’s best years as was the first half of 2021 in that her medication use was at a relatively low level having regard to the usage in previous years. Mrs Rope’s medication use however grew enormously in the second half of 2021, and continued to rise considerably through the second half of 2022.

29. Despite this evidence, Dr Leahan produced a report dated 27 July 2022 saying that the applicant’s mood and functioning had declined over the past two years, and this was associated with ‘increased chronic pain and a reduction in physical and emotional function, as evidence by her pain diary records, self-report, and my professional observation.

30. Given that Comcare had ceased to fund psychological counselling from 2017, it is unclear on what basis Dr Leahan considered that Mrs Rope’s supposed decline in 2020 (which, based on the objective evidence concerning medication use, did not in fact occur until mid-2021) could be arrested by Comcare funding more psychological counselling. The report is on its face unconvincing.

31. A further report was provided by Dr Leahan dated 30 March 2023. It is, if anything, even vaguer than her earlier report. It states that ‘over the last few years’ Mrs Rope experienced significant deterioration’. There was no attempt to link this deterioration to the absence of psychological counselling (which continued, and had and been subsidised by Medicare at the rate of 20 sessions per year from 7 August 2020)). The report also made the suggestion that the applicant needed neurofeedback treatment and a biofeedback refresher course. Dr Leahan did not attempt to support the efficacy of this treatment with any evidence.

32. On 13 January 2023 Dr Gunapu reported on the applicant’s need for psychological treatment. He concluded:

    There is no need for additional psychiatric counselling. In my opinion, it is becoming highly unproductive, especially with the declining cognitive impairments that may or may not be connected to medication and may also be related to ageing. It is likely that she has very little carryover from session to session, that there is no goal-based focus, and that there has been no apparent capacity to even express the benefits of this therapy. In terms of how she discusses mindfulness and ethics and how it will benefit her, her comprehension is quite superficial. She has already gained information and knowledge from the mindfulness classes and these are skills one has to practice on their own and the idea is then to generalise the practice across various aspects of one’s life. Home based and self – directed practice of meditation skills would be a good way to reduce dependency and promote self-reliance…

    …Treatment has no therapeutic value in her situation.[12]

    Mrs Rope needs less medicalisation of her presentation. She needs to engage in consistent physical activity, work on increasing her exercise tolerance at an age-appropriate level, reduce the number of conversations about her pain, and narratives that centre on her initial injury, Comcare, and pain, and shift her attention to day-to-day functioning.[13]

    Consideration of Further Psychological Treatment

    [12] TB 589.

    [13] TB 591.

33. This application is made against a background of a Tribunal decision in 2020 that it was not reasonable for the applicant to obtain further psychological treatment. The Tribunal made that decision having heard from the applicant’s treating doctors including her treating psychologist. The applicant’s treating doctors were found to be unconvincing advocates for the position that Mrs Rope wished to take. Based on the evidence of an independent medical examiner, the Tribunal concluded that further psychological treatment was not reasonable and may in fact be counterproductive.

34. Despite this finding, the applicant and her treating medical practitioners have continued to advocate for the same recipe of treatment which has been ineffective for decades and which was specifically rejected by the Tribunal.

35. The basis on which the argument is pressed is that since Comcare ceased to fund the applicant’s psychological treatment she deteriorated and that to arrest the deterioration further psychological treatment is required.

36. I do not accept that argument. The reality is that since Comcare ceased to fund psychological treatment Mrs Rope has continued to access psychological treatment with Dr Leahan. To the extent that Comcare’s refusal to fund psychological treatment brought about a reduction in psychological treatment, there is no objective evidence that this reduction resulted in any deterioration in Mrs Rope’s condition.

37. There is however objective evidence of deterioration in the form of increased medication use in mid-2021. This deterioration is not associated with any cutback in psychological services. The applicant’s treaters have been quick to accept Mrs Rope’s account that the deterioration should be blamed on diminished services from Comcare. However, there is no credible evidence that this is anything more than the narrative that Mrs Rope would prefer to believe and which her treating doctors are keen to support. The significant increase in the applicant’s use of pain medication dating from mid-2021 is worthy of serious examination by those treating her. Sadly no careful examination of Mrs Rope’s history has been undertaken with a view to determining what caused the increase in medication use. Instead, the applicant’s treaters have made rough guesses about when the deterioration occurred and attributed it, without evidence, to a cutback in psychological services.

38. The reports supporting more psychological services for Mrs Rope are not credible and do not support the conclusion that it is reasonable for Mrs Rope to continue to obtain treatment of that kind.

39. I am satisfied that the decisions under review (with the exception of the philosophy text book) should be affirmed.

74.     I certify that the preceding 73 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Damien O’Donovan.

....................[SGD]......................

Associate

Date of hearing: 

14 September 2023

Applicant:

Solicitor for the Respondent:

Counsel for the Respondent:

Self-represented

Ms Carmen King (McInnes Wilson)

Mr Benjamin Julienne