Rope and Comcare (Compensation)

Case [2018] AATA 42

Rope and Comcare (Compensation) [2018] AATA 42 (16 January 2018)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2016/2229
GENERAL DIVISION  )

Re: Eleanor Rope
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL:   Deputy President Gary Humphries AO

DATE OF CORRIGENDUM:            19 August 2019

PLACE:           Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision dated 16 January 2018 in this application as follows:

  1. The words “a medial massage” which appear on page 1 of the decision are removed and replaced with “remedial massage”.

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

Deputy President Gary Humphries AO

Division:GENERAL DIVISION

File Number(s):      2016/2229

Re:Eleanor Rope

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries

Date:16 January 2018

Place:Canberra

The reviewable decision of 27 April 2016 is set aside. Mrs Rope is entitled to compensation for remedial massage pursuant to s 16 as at the date of this decision.

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

Deputy President Gary Humphries

Catchwords

COMPENSATION – jurisdictional scope of reviewable decision – mechanism of consideration and re-consideration set out in Part VI of the Safety, Rehabilitation and Compensation Act 1988 – claim which has not been assessed by Comcare cannot be the subject of review by the Tribunal – where decisions at the consideration and reconsideration stages are different in scope, Comcare’s decision at the latter stage defines the Tribunal’s jurisdiction – no agreement by the parties can operate so as to limit the ambit of the Tribunal’s jurisdiction – whether massage treatment is reasonable for Mrs Rope to obtain – test is whether the massage treatment was reasonable in all the circumstances – treatment more likely to be considered reasonable where its benefits are substantial and its cost is low; it is effective; it is active and promotes self-management of the compensable condition; it is consistent with the principles in the Framework; and it is of limited duration –- role of purely palliative treatment – reviewable decision set aside.

Legislation

Safety, Rehabilitation and Compensation Act 1988 ss 4, 16, 62 and Part VI

Cases

Alamos and Comcare [2014] AATA 629

Bashar v Comcare [2002] FCA 837

Bayani and Australian Postal Corporation [2015] AATA 342

Chowdhary and Comcare [1998] AATA 448

Comcare Australia v Rope (2004) 135 FCR 443

Comcare v Holt [2007] FCA 405

Comcare v Muir [2016] FCA 346

Comcare v Watson 46 ALD 481

Durham and Comcare [2014] AATA 753

Jorgensen and Commonwealth (1990) 23 ALD 321

Lees v Comcare (1999) 56 ALD 84

Popovic and Comcare (2000) 64 ALD 171

Rope and Comcare [2013] AATA 280

Topping and Comcare [2015] AATA 525

Secondary Materials

Transport Accident Commission and Worksafe Victoria, 'Clinical Framework for the Delivery of Health Services' (Clinical Framework, Health Service Group, Transport Accident Commission and Worksafe Victoria, June 2012)

Administrative Appeals Tribunal, 'Persons Giving Expert and Opinion Evidence' (Guideline, Administrative Appeals Tribunal, 30 June 2015)

REASONS FOR DECISION

Deputy President Gary Humphries

16 January 2018

  1. Mrs Eleanor Ropewas injured in a motor vehicle…

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AGLC
Rope and Comcare (Compensation) [2018] AATA 42
Case
[2018] AATA 42
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) by Mrs Rope against a decision by Comcare to cease funding her remedial massage treatments. Comcare had accepted liability for a musculoskeletal disorder and symptoms related to Mrs Rope's neck, as well as several secondary conditions including hypertension, oesophagitis, depressive disorder, and gastrointestinal complications. Mrs Rope had been receiving weekly massage treatments, funded by Comcare, since 2005. Comcare initially notified Mrs Rope of its intention to discontinue payments for massage therapy in January 2016, and subsequently made a determination to cease payments from March 2016. Mrs Rope sought reconsideration of this decision, and Comcare affirmed its determination, though it varied the cessation date to 18 March 2016.

The primary legal issues before the Tribunal were the jurisdictional scope of the reviewable decision and whether the remedial massage treatment was reasonable for Mrs Rope to obtain under the Safety, Rehabilitation and Compensation Act 1988. Specifically, the Tribunal had to determine the precise nature of the compensable condition to which Comcare's decision related, and whether the Tribunal's jurisdiction was limited by the scope of Comcare's reconsideration decision. The Tribunal was also required to apply the established legal test for determining the reasonableness of medical treatment, considering factors such as the substantiality of benefits, cost, effectiveness, promotion of self-management, consistency with guidelines, and duration of treatment.

The Tribunal reasoned that its jurisdiction to conduct a merits review of a Comcare decision is contingent upon that decision having undergone the consideration and reconsideration processes outlined in Part VI of the Act, and that the ambit of the reviewable decision is defined by the subject matter of these stages. The Tribunal found that while Mrs Rope's massage treatment provided benefits, including pain relief, improved mobility, and positive psychological impacts, it also presented as a passive therapy to which Mrs Rope appeared highly reliant. Despite Mrs Rope's stated ambition to reduce her reliance on massage, the absence of a formal plan with her medical advisors to achieve this suggested a tendency towards dependence. The Tribunal acknowledged a divergence in medical evidence, with Mrs Rope's treating professionals asserting the benefits of massage, while Comcare's expert questioned its long-term therapeutic value. The Tribunal ultimately set aside Comcare's reviewable decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It was put to Mrs Rope that she had received more than 560 episodes of compensable massage over 20 years. Mrs Rope did not dispute that figure but told the Tribunal it was her ambition to reduce that level of massage to less than once per week in the future. The pain relief afforded by massage would last from a few hours to 6 days. She described one goal for her massage, beyond reducing pain, as increasing her ability to do some things – for example, lifting her arms above her head.The evidence of health professionals Three health professionals gave evidence on Mrs Rope’s behalf. Ms Toni Vickers, who has given her massage since 2014, said that the treatment had been weekly until February 2016, when it had been reduced for a time to 2 or 3 treatments per three-week period. She described the goals of the treatment as relieving pain and providing mobility to Mrs Rope, though she conceded that pain relief was a purely subjective, and transitory, phenomenon. She was unable to say if Mrs Rope was reliant on the massage. She conceded that the pain diary was a subjective report of Mrs Rope’s history with pain. She also conceded that she was unaware of any plan to reduce the frequency of Mrs Rope’s massage. Ms Vickers disagreed with the proposition that there was no scientific basis for the relief of pain by massage, saying that the reduction of muscle tension can be demonstrated, and this can have a positive effect on pain. Dr Welberry has been Mrs Rope’s treating GP for some 30 years. In a report dated 23 May 2016, she commented on Mrs Rope’s pain diary and recorded that …there is a measurable response to massage therapy, which gives relief such that Mrs Rope has improved quality of life and can participate more, as well is taking less medication…It therefore seems clear to me that there is a measurable benefit for Mrs Rope in receiving weekly massage therapy. In her live testimony, Dr Welberry said that the benefits of massage to Mrs Rope are cumulative, and work particularly in conjunction with other treatments, such as neurofeedback. She also said that the treatment of her pain through massage has an impact on her psychological condition. With respect to Mrs Rope’s condition, she commented I don’t agree that it has substantially deteriorated other than [as] one might expect with the passage of time and the ageing process. Dr Welberry rejected the suggestion that massage has no clinical efficacy over a range of other treatments, saying that further studies were required to arrive at that conclusion. She also told the Tribunal that the massage prevents deterioration, saying: …it just maintains stability, maintains a certain level of function, reduces pain levels and I believe… it, therefore, prevents deterioration, yes.She added:I think that if you can reduce the amount of ongoing pain, then you can stop the pain signals going to the brain, which is the part of the thing which reduces exacerbation of pain. So, if you can keep the pain level to a reasonable level, then, yes, I think you can prevent deterioration of that condition – of that chronic pain condition.

Decision

Reasons for decision

Comcare accepted liability for a condition of muscular injury to neck in June 1987; the accepted condition is now described as musculoskeletal disorders and symptoms/neck. Over the ensuing years liability was also accepted by Comcare for several secondary conditions, namely unspecified secondary hypertension, reflux oesophagitis, depressive disorder and specified disorders of liver and gastrointestinal complications.SCOPE OF THE REVIEWABLE DECISION There was some contention between the parties as to the nature of the reviewable decision before the Tribunal. Mrs Rope has made claims for remedial massage over a number of years. Following intermittent use of massage since 1987, Mrs Rope has been receiving massage on a more or less weekly basis since May 2005. This massage has been paid for by Comcare under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). On 22 January 2016 Comcare wrote to Mrs Rope signalling its intention to discontinue paying for massage therapy for your compensable condition. According to the heading of the letter, the compensable condition in question was in fact two conditions: musculoskeletal disorders & symptoms/neck and unspecified secondary hypertension. Comcare made the foreshadowed determination to cease payments for massage on 18 March 2016, with effect from 1 March 2016. The decision appears to have been a determination of own motion, that is, not in relation to any particular claim for reimbursement by Mrs Rope. Mrs Rope sought reconsideration of that decision in an extensive submission dated 30 March 2016, followed by a further submission dated 21 April 2016. She referred in those documents to the impact of massage on my compensable condition(s). On 27 April 2016 Comcare issued its reconsideration of the earlier determination, affirming no present entitlement to massage treatment but varying the earlier decision to the extent that the date of cessation of treatment was moved from 1 March to 18 March 2016. The reconsideration was expressed, in its heading, to relate to:Condition: musculoskeletal disorders & symptoms/neck, unspecified secondary hypertension, reflux oesophagitis, depressive disorder, specified disorders of liver and gastrointestinal complications At the hearing itself, counsel for Comcare contended that the compensable condition to which the reviewable decision related was simply musculoskeletal disorders and symptoms/neck, and not the other accepted conditions. Mrs Rope – representing herself in the hearing – initially conceded this characterisation but later argued that the compensable condition at issue should be more broadly defined. The Tribunal’s jurisdiction to conduct merits review of a decision of Comcare arises when such a decision has passed through the gamut of consideration and reconsideration set out in Part VI of the Act: Lees v Comcare(1999) 56 ALD 84 at 91, per Wilcox, Branson and Tamberlin JJ. The ambit of the reviewable decision is determined by considering the initial claim for compensation and the subject matter of the consideration and reconsideration: Comcare v Muir [2016] FCA 346. A claim which has not been assessed by Comcare cannot be the subject of review by the Tribunal: per Flick J in Muir at [37].

Ratio Decidendi

Legal Principle Established

Conversely, treatment is less likely to be considered reasonable where:·its benefits are insubstantial and its cost is high;·it is passive and promotes dependence on itself; and·it is ongoing and indeterminate.Consideration Mrs Rope’s present case has offered significant challenges to the Tribunal. Her massage treatment is not easily characterised as falling, according to the precedents, into the category of being reasonable or of being not reasonable. On the one hand the treatment produces benefits to Mrs Rope. I am satisfied that, by reducing the impact of pain, she is able to carry out day-to-day activities which the conditions would otherwise inhibit or prevent. These include greater mobility (including walking), the ability to carry out household activities such as cooking and greater use of her arms. I am satisfied that the treatment has an impact on her psychological condition, in that it lifts her mood and gives her confidence to undertake activities. I accept the evidence of Prof Barnsley, to the effect that there is no mechanism by which massage can increase Mrs Rope’s strength, but I also accept the evidence of Dr Whiting, to the effect that an improvement in Mrs Rope’s mental health enhances her physical capability. The benefits also include a decreased reliance on analgesics. Dr Welberry said that massage can arrest the deterioration of her condition. Massage maintains stability, maintains a certain level of function, reduces pain levels and … therefore, prevents deterioration. Prof Barnsley disputed this. On the other hand remedial massage is a passive therapy, and Mrs Rope appears to be highly reliant upon it. I note Mrs Rope’s evidence of her determination to attempt a reduction in the use of massage in the future; she gave evidence of a similar determination to reduce her reliance on some drugs in the past, an exercise which was, she said, successful. However, the absence of a plan or program devised in conjunction with her medical advisers to achieve reduced use of massage prospectively suggests a tendency towards dependence, in the sense used in Popovic and Topping. The continuation of a weekly massage regime since 2005 underscores this concern. The Tribunal found Mrs Rope to be an earnest and meticulous witness, whose evidence accurately reflected her recollections and belief. Even so, I accept Comcare’s submission that her 14-week pain diary in 2016 is an essentially subjective piece of evidence, documenting, no doubt accurately, her use of drugs and her daily activities but which is also infected by her own perception of pain and the incapacity it causes over that time. The Tribunal was confronted with a fairly sharp divergence in the medical evidence. Mrs Rope’s witnesses maintained that massage delivered physical and mental benefits to her; Comcare’s witness, Prof Barnsley, testified that there was no evidence the long-term use of massage is a therapeutic option and that, in Mrs Rope’s case, it had made no long-term difference. Comcare submitted that the evidence of Ms Vickers, Drs Welberry and Whiting should be disregarded in that they had not been provided with the Tribunal’s Guideline for expert witnesses, nor had they made the appropriate declaration provided for in the Guideline. I cannot accept that submission. As an unrepresented applicant, Mrs Rope should not be disadvantaged by her ignorance of those rules. In any case, for the most part the reports provided by these witnesses do not fall within paragraph 4.5 of the Guideline in that they do not appear to have been prepared for the purpose of proceedings before the AAT.