Rope and Comcare (Compensation)
[2018] AATA 42
•16 January 2018
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
RespondentDIRECTION
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:
- 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
Mrs Eleanor Ropewas injured in a motor vehicle accident in March 1987 when she was a Commonwealth employee. The injuries she sustained caused her to experience chronic pain and other symptoms. She ceased employment on invalidity grounds in 1999, and since then has claimed and been paid compensation in respect of a number of medical conditions, as well as for related treatments, including pain management, psychoneuroimmunology and psychiatric treatment.
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].
In this case, there was no specific claim for compensation made by Mrs Rope which was rejected by Comcare; Comcare’s initial consideration appears to have been an own motion consideration under s 62. Comcare self-determined that the scope of its decision at the consideration stage was limited to two of Mrs Rope’s conditions (musculoskeletal disorders & symptoms/neck and unspecified secondary hypertension), but at reconsideration it widened that scope to all five of her accepted conditions.
It appears to the Tribunal, consistently with the Federal Court’s approach in Muir, that where the decisions at the consideration and reconsideration stages are different in scope, what matters is Comcare’s decision at the latter stage. No injustice is perpetrated if Comcare chooses to widen the scope of its decision in that way, as it manifestly did here. On this reading the decision in issue is the decision to refuse further massage payments in respect of all Mrs Rope’s accepted conditions. Counsel for Comcare submitted that Mrs Rope had agreed at the hearing to limit the scope of the matter under review to her neck condition, and that this therefore defines the parameters of these proceedings. That contention must be rejected. Even if Mrs Rope had made this concession (in fact it became clear as the hearing proceeded that she did not), it is obvious that no agreement by the parties can operate so as to limit the ambit of the Tribunal’s jurisdiction.
The reviewable decision considered by the Tribunal in this instance, therefore, is the decision to cease compensation for remedial massage in relation to all five of Mrs Rope’s accepted conditions.
THE STATUTORY FRAMEWORK FOR DETERMINING THE ISSUES
An injured employee’s entitlements to medical treatment is determined by s 16 of the Act:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 4(1) defines medical treatment to mean, in part:
(a) …
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner…
(c) …
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be…
Section 4(1) further defines therapeutic treatment as including an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
THE EVIDENCE BEFORE THE TRIBUNAL
Mrs Rope’s evidence
Mrs Rope has been receiving weekly massages since 2005. She gave evidence of the benefits she obtained from this. Chief among these was relief from pain – pain which had been with her more or less continuously since her car accident in 1987. In addition, she said that massage helped her to carry out day-to-day activities, lifted her mood and helped to avoid needing to remain in bed during the day. That pain can be exacerbated by cold, stress and certain activities – one of which, she conceded, was dealing from time to time with Comcare. Attending the recent funeral of her mother-in-law was another example of these pain-exacerbating activities.
Her experience of pain has fluctuated, but on the whole it has ended up worse over time. She agreed that relief of pain was the primary reason for obtaining massage.
Other benefits of massage, according to a letter she wrote to Comcare on 2 March 2016, include improving my strength and mobility, releasing muscle tension, and facilitating my ability to walk… Another benefit was decreased reliance on analgesic medicine. She had sought these benefits from other modalities, including aqua-aerobics, hydrotherapy, flotation tanks, acupuncture, laser acupuncture, tai chi and Alexander Technique. Many of these afforded her little or no benefit.
The level of her pain can fluctuate, she said. In a 14-week pain diary she prepared commencing in February 2016 she chronicled her daily level of pain on waking in the morning, medication or other steps she took to address that pain and its effect on her day-to-day activities. For example, following massage and neurofeedback treatment on 30 March 2016 she enjoyed five successive days of lower pain or lowish pain. The diary was later evaluated by her GP, Dr Linda Welberry.
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.
Mrs Rope’s treating psychiatrist is Dr Meredith Whiting. Dr Whiting referred to there being a huge interplay between the mind and the body in relation to Mrs Rope’s condition. She told the Tribunal:
…any improvement in her physical health will improve her mental health and I similarly believe that an improvement in her mental health would enhance her physical capability.
She confirmed that her interactions with Comcare are a contributing factor in her psychological condition. In her opinion, Mrs Rope was reliant, but not dependent (i.e. addicted), on massage treatment. Dr Whiting did not consider medication to be an alternative to massage in her case, because some medications presented certain risks to Mrs Rope, such as addiction or making her unsteady on her feet.
Comcare called Associate Professor Lesley Barnsley as its only witness. He is a consultant rheumatologist. Two reports of Prof Barnsley were before the Tribunal – one dated 6 December 2015 and a supplementary report dated 17 December 2016. The reports were based on a two-hour assessment of Mrs Rope on 3 December 2015. In his 2016 report, Prof Barnsley said Mrs Rope:
…has a chronic pain state that may have an important peripheral source, but that is inextricably caught up with her psychological distress.
… I do not believe there is any role for ongoing massage in the management of this lady’s problem.
He told the Tribunal in live evidence that her chronic pain condition has not been altered at all by the experience of massage, and that massage cannot change the trajectory of her illness. He denied that massage was capable of strengthening muscles, saying that there is no plausible way that it can. He also cast doubt on the notion that massage could prevent deterioration of Mrs Rope’s condition, saying:
… there's no plausible mechanism by which the massage can influence underlying degenerative change which is for the most part a genetically and constitutionally determined state. Simply rubbing or pressing on muscles could not be expected and the changes that you’re describing are actually in the bones and joints and rubbing on the muscles is extremely – I can’t – I just can’t see how that could have any meaningful linkage to any changes in the spine. Moreover, not only do I consider it implausible, I’m not aware of any evidence whatsoever that these changes can be impeded or that they can –or that they can be materially altered by any extremal intervention.
That includes the chronic pain condition, Professor Barnsley? --- I think the issue here is that the chronic pain condition has clearly not been in any meaningful way altered by the massage. There’s no evidence that I’m aware of – and I’ve taken the time to try and ascertain whether there is any evidence – to suggest that there is any effect – there’s any effective massage on – any long term effect of massage on pain in terms of either relieving – and any resulting longer period without pain or resulting in any change in the trajectory of the illness. There is no doubt that people feel more comfortable after they’ve had a massage but the effects are typically temporary and even by – even in the literature from the – from people who are advocates of massage, it is stated that if you are not improving – and I’m quoting from organisations such as the laser spine institute and they say things like if – ‘In the event of several weeks of conservative treatment including massage therapy failed to provide you with meaningful and lasting relief you require, contact us and we’ll talk to [you] about other minimally invasive procedures.’ So even advocates of massage therapy don’t support its long term use. There’s no evidence to suggest that it is going to make any meaningful difference to an underlying pain problem.
Under cross-examination by Mrs Rope, Prof Barnsley agreed that:
…most likely the development of this chronic pain is being contributed to by concurrent psychological problems and also by the ongoing conflict concerning her work environment compensation process.
He added that trying to sort out the psychological from the physical factors is like trying to un-bake a cake.
He was asked whether massage here could be described as palliative or preventative treatment. He responded:
I mean, the key thing there is that it is a treatment that has a likelihood of improving her symptoms. My issue is that there is no scientific evidence to say that there should be improving symptoms for more than a very brief and clinical – and to my mind, a clinically irrelevant period of time. I mean, if she’s getting relief for a few hours after a massage treatment and then you wait till the next week, well, you’ve improved four out of 168 hours which I have to argue is not a clinically-important improvement. So I think, you know, you’re saying – to me that seems an unusually broad approach to medical treatment in that it would suggest that anything that made you feel a bit better is worthwhile and, you know, there’s an awful lot of things that make you feel a lot better but is not medical treatment and I feel on that basis I have difficulty accepting massage as a long term palliative treatment because it is an event that is occurring that is making somebody feel better but to my way of thinking there’s no a priori reason to believe that this is improving – it is improving things in a meaningful way on account of a specific effect. If it’s a non-specific effect well, that should be able to be achieved by other means.
IS MASSAGE REASONABLE TREATMENT FOR MRS ROPE’S INJURIES?
Relevantly to this matter, s 16(1) specifies three tests to establish an entitlement to compensation for treatment of a compensable injury. The treatment must be medical treatment, it must be obtained in relation to the injury, and it must be reasonable …to obtain in the circumstances. There was no dispute here that remedial massage qualifies as medical treatment under s 4(1). Equally, Mrs Rope’s evidence was that the treatment benefited all of her accepted conditions; in my view, it is quite evidently treatment in relation to those injuries. The seminal issue therefore facing the Tribunal is whether massage treatment was reasonable for the employee to obtain.
Previous decisions
The test is not whether the treatment was reasonable in absolute or empirical terms, but whether it was reasonable in the circumstances facing the employee.[1] Thus what may be reasonable treatment in the circumstances of a person suffering a certain injury may not be reasonable treatment in the circumstances of another person suffering the same injury. Gray J in Jorgensen and Commonwealth (1990) 23 ALD 321 at [12] said, in relation to s 16(1):
The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of the applicant for compensation.
[1] This and the following 9 paragraphs are adapted from the Tribunal’s summary of the relevant case law in its decision of Topping and Comcare [2015] AATA 525.
Certainly the terms of s 16 import a notion of cost/benefit analysis in assessing how reasonable particular treatment might be to the circumstances of the employee concerned. This involves weighing the cost of obtaining the treatment against the benefits conferred. In ComcareAustralia v Rope (2004) 135 FCR 443 (Rope No1) the present applicant, Mrs Rope, claimed the cost of travel from Canberra to Townsville to obtain a unique form of psychological treatment, one not available where she lived. Stone J commented at [17]:
I accept, however, that the reference in s 16(1) to treatment being “reasonable to obtain in the circumstances” is a clear indication that, in this case, the Tribunal was required to engage in a costs/benefit analysis in relation to PNI treatment. The Tribunal needed, among other things, to weigh the benefit of PNI treatment against the cost of obtaining it (given that the treatment was available only in Townsville), taking into account any other treatment available to Mrs Rope. I am not, however, convinced that the Tribunal neglected to do this… .
The Tribunal found that the cost of such travel was reasonable vis-a-vis the benefit it conferred on the applicant, and the Federal Court did not disturb that finding of fact.
The reasonableness of treatment was commented upon by Madgwick J in Bashar v Comcare [2002] FCA 837 at [11]-[12]:
In the treatment of work injuries and in cases about compensation for such injuries, few things are more common than that medical treatment of one kind or another that has been undertaken does not work or even, commonly enough, worsens the condition complained of. There was ample material, indeed, it would seem an overwhelming preponderance that the physiotherapy treatment, although provided so regularly and for so long, was nevertheless aimed at producing beneficial results in relation to the applicant's complaints that he alleged stemmed from his compensable injury. If it were the case that these had had no effect in relieving his pain, this alone would not resolve the matter and it would not mean that the physiotherapy treatments were not treatment under the Act.
The fact if it were a fact, that they had had no discernible effect would be a matter that would bear, and might bear powerfully in the context of all of the evidence, on the question of whether it was, or continued to be, reasonable for the applicant to obtain such treatment in the circumstances. But those circumstances would be all the circumstances in which the applicant found himself.
A number of decisions, both of the Tribunal and the Federal Court, are pertinent. In Bayani and Australian Postal Corporation [2015] AATA 342 the Tribunal considered the principles found in the Clinical Framework for the Delivery of Health Services (the Framework). It referred to the adoption by most Australian jurisdictions’ workers compensation and motor accident compensation agencies of the Framework as principles to guide health care professionals in the treatment of injury. The five principles enunciated by the Framework are:
Measure and demonstrate the effectiveness of treatment
Adopt a biopsychosocial approach
Empower the injured person to manage the injury
Implement goals focused on optimising function, participation and return to work
Base treatment on the best available research evidence
In relation to Principal One of the Framework, Senior Member Handley observed, in relation to the applicant in Bayani at [48]:
I am satisfied that had this principle been observed, it would have been obvious that the physiotherapy treatment was not providing a measurable benefit, the applicant’s health status had not changed, and functional goals, if ever established, were not being achieved. (Emphasis in original)
On this basis, inter alia, he concluded at [55]:
I think because there has been no real benefit to the applicant by the prolonged physiotherapy treatment that she has undertaken, there is considerable benefit in her taking responsibility for self-management of her symptoms, consistent with the Framework. I fear that the applicant has become dependent on physiotherapists who have provided her with symptomatic relief only. For her to undertake self-management will require a refocus of responsibility and a willingness to be instructed and subsequently practice and implement appropriate strategies as determined by a competent physiotherapist.
Similarly, in Popovic and Comcare (2000) 64 ALD 171 the applicant claimed for physiotherapy which provided short-term relief of his symptoms, including affording better sleep making him less depressed and less irritable on the succeeding day. The Tribunal found at [28]:
In relation to the applicant's claim for physiotherapy treatment expenses, in our view there is no role for passive physiotherapy in the applicant's current treatment regime. The physiotherapy he was having could not improve him in the long term, has limited, if any, short term benefit, and may in fact be contra-indicated. Any therapeutic benefit he received was small and short-lived. We accept that pain relief, even short-term relief or reduction in pain, can be therapeutic: Comcare v Watson (1997) 73 FCR 273 at 276 ; 46 ALD 481 at 484 ; 154 ALR 173 at 176 per Finn J. However, in this case any benefit is outweighed by the counter-productive effect of it leading the applicant to a dependent state, inhibiting his ability to learn to cope, and to embark on pain management programs to assist him with that object. Taking into account the whole of the evidence before us, we consider that in the applicant's case it was not in his best interest for passive physiotherapy modalities to have continued beyond 16 September 1997: Re Jorgenson and Commonwealth (1990) 23 ALD 321.
The Tribunal went on to say at [30] that the applicant’s case is one in which, while temporary relief can be reasonable treatment, it has become unreasonable…
In Chowdhary and Comcare [1998] AATA 448 the Tribunal commented, with respect to a claim for physiotherapy treatment under s 16 at [53]:
In particular, there is no evidence of any plan to have the physiotherapy treatment accompanied by a course of physical exercise such that the applicant might become re-conditioned and better able to cope with pain and manage a return to work. While provision of temporary relief from pain through physiotherapy will in many circumstances qualify as medical treatment which it is reasonable for an employee to obtain, there will in some cases come a point where it is no longer reasonable unless it is part of a plan for permanent improvement in the health of the employee.
In Alamos and Comcare [2014] AATA 629 the Tribunal rejected a claim for physiotherapy on the basis that short-term alleviation of the applicant’s symptoms, is not medically indicated and will not provide long-term improvement in [the applicant’s] condition (at [39]). On a similar basis, the Tribunal in Durham and Comcare [2014] AATA 753 rejected a claim for physiotherapy, even though evidence had been led that this treatment, while ineffective in overcoming the applicant’s pain, did allow him to continue working.
In Comcare v Holt [2007] FCA 405 Mansfield J concluded that a cost/benefit analysis, of the kind recommended in Rope, ought to be undertaken. His Honour decided that there may be circumstances where therapeutic treatment will be unreasonable if alternative treatment is available for potentially similar benefit at a lower cost, and he decided that the extent to which such treatment has been undertaken in the past and the degree of its success may also be relevant (at [26]). His Honour, added, however, that:
There may be cases… where treatment …which in the past has had some therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of past experience…(at [26])
In Topping and Comcare [2015] AATA 525 the Tribunal at [47] rejected Ms Topping’s claim for massage and osteopathy under s 16, finding that:
…the therapies have become a ritual, fostering a dependence on her part to them which could be inhibiting her ability to self manage her condition and foster future self-reliance.
In another case involving the present applicant, Rope and Comcare [2013] AATA 280 (Rope No2), the Tribunal decided that Mrs Rope was entitled to compensation under s 16 in respect of the costs of attending mindfulness classes as directed by her treating doctor and supported by her psychologist. It determined that the classes fell within the meaning of medical treatment under s 4(1) and for the purposes of s 16 was reasonable treatment. Member Webb commented at [51]:
The proposition that a plan for the permanent improvement of an injury is required in order to find that a particular form of medical treatment is reasonable for an injured employee to obtain lacks merit. Medical treatment and therapeutic treatment, for the purposes of the 1988 Act, consistent with the definition of those terms in s 4(1), may include treatment to alleviate the symptoms of an injury and palliative or preventative treatments (Bashar v ComcareAustralia [2002] FCA 837 at [9]). Treatments of that kind are unlikely to appear in a plan for the permanent improvement of an injury. Some injuries cannot be permanently improved, and I do not accept that it would not be reasonable for a permanently injured employee to obtain palliative or preventative medical treatment on the basis that the treatment was not part of a plan for permanent improvement.
Finally, in reviewing the relevant case law, Comcare v Watson 46 ALD 481 should be highlighted. There Finn J observed at 484:
A course of treatment designed to, or aimed at, alleviating the pain caused by an injury or disease is, in my view, properly to be regarded as therapeutic treatment.
The applicant [Comcare] has submitted that a treatment can only be "therapeutic" if its object is to cure a disease or injury. Though some dictionary definitions do emphasise the "healing or curative" connotation of the words "therapy" and "therapeutic": see eg Shorter OED, 3rd Ed; the latter's use in this context encompasses the alleviation of the pain of an injury. This view is consistent with the s 4 definition of "therapeutic treatment" which includes "treatment given for the purpose of alleviating an injury": (emphasis added). The Shorter OED, for example, defines "alleviation" as "the action of lightening ... pain". That usage is an appropriate one to apply here given the s 4 definition itself. And it permits a construction which accords with the beneficial purposes of the legislation: see Thiele's case, 380- 381.
Although the principles applied in the above cases occasionally appear to be pulling in slightly different directions, some broad observations can be distilled from them regarding what will or will not be considered reasonable treatment pursuant to s 16. Generally speaking, treatment is more likely to be considered reasonable where:
·its benefits are substantial and its cost is low;
·it is effective, i.e. achieves measurable benefits;
·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.
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.
Prof Barnsley’s evidence regarding the mechanical operation of massage was persuasive. He said that there was no plausible mechanism by which massage can influence underlying degenerative change, and that there was no evidence for its long-term use as a therapeutic option. The Tribunal notes however that much of his evidence was elicited in respect of Mrs Rope’s neck condition, whereas – as already explained – the Tribunal considers that the massage must be assessed for its efficacy vis-a-vis all of Mrs Rope’s conditions. It further observes that much of his evidence, as a rheumatologist, appeared to be directed to the question of whether massage could alleviate or alter the course of her underlying physical condition. His opinion – well justified, in my assessment – was that it could not. Although he acknowledged the close interplay of the physical and psychological factors bearing on Mrs Rope’s experience of pain, his evidence seemed less authoritative on the question – one falling outside his area of clinical expertise – of whether massage had a positive role to play in alleviating the psychological dimension of her pain. For example, when asked whether massage could be palliative, he said:
…the key thing there is that it is a treatment that has a likelihood of improving her symptoms. My issue is that there is no scientific evidence to say that there should be improving symptoms for more than a very brief and… to my mind a clinically irrelevant period of time. I mean, if she is getting relief for a few hours after massage treatment and then you wait till the next week, well, you’ve improved four out of 168 hours which I have to argue is not a clinically-important improvement.
This comment appears to be directed at the physical, rather than the psychological, impact of the massage treatment.
It does seem likely that massage has the effect of diminishing Mrs Rope’s experience of pain for certain periods and, by so doing, enhances her functionality for day-to-day activities at those times. Prof Barnsley considered that just a few hours of such relief per week was clinically irrelevant; the evidence of other witnesses, and of Mrs Rope herself, was that her relief from massage lasted from a few hours to 6 days (typically 2 to 3 days).
In assessing the finely-balanced state of the evidence on the question of reasonableness, the Tribunal is ultimately persuaded by the observation of Finn J in Comcare v Watson at 484:
A course of treatment designed to, or aimed at, alleviating the pain caused by an injury or disease is, in my view, properly to be regarded as therapeutic treatment.
The massage treatment Mrs Rope receives is principally directed to the alleviation of pain, and indeed it achieves that objective. It does relieve her pain, and it does afford her increased functionality for the duration of that relief. If, as I am persuaded, this relief typically lasts 2 to 3 days per week, presumably even Prof Barnsley would regard this as a clinically relevant therapeutic treatment.
A finding that massage is effective therapeutic treatment does not, by itself, demonstrate that it is reasonable treatment under s 16. Other factors relating to its delivery must also be weighed up. One of those is the extent to which the treatment conforms to the principles in the Framework. Mrs Rope argued that the Framework was not authorised by the Act, and was an inappropriate context in which to consider the reasonableness of treatment for an invalidity retiree such as herself.
The Framework is not referenced in the Act; to the extent of any inconsistency, clearly the Act would prevail. However, where the legislation is silent as to the meaning of reasonable in s 16, the Tribunal is entitled to consider widely-applied management instruments in the field of workers compensation to assess the contextual meaning of that word. The Framework fits that requirement: see for example Durham, Topping and Bayani. It is the working tool used by rehabilitation services of most Australian governments at this time. Nor can I agree that the Framework is an inappropriate reference tool for an invalidity retiree, though some modification of its focus needs to be considered when it is applied in this context. For example, Principal Four of the Framework promotes implementation of goals focused on optimising function, participation and return to work. Adapting this principle, it seems reasonable for Mrs Rope to set goals optimising functionality and participation in daily domestic and social activities, though not necessarily with the objective of returning to work.
Viewed in that way, Mrs Rope’s treatment conforms only partially with the objectives of the Framework. Her treatment, for example, provides a measurable benefit to the injured person, i.e. relief from pain (Principal One). Conversely, improvement goals have not been set for her which are specific, measurable, achievable (Principal Four). To the extent that there is any inconsistency, however, between her treatment regime and the principles in the Framework – and Prof Barnsley considers in his report of 17 December 2016 that there is considerable inconsistency – it should be observed that the Framework focuses, appropriately, on the rehabilitation of injured workers and their return to the workforce. It assumes, as arguably it must, that an injury can be cured or overcome and a worker returned to at least partial employment. It is premised on the condition in question being dynamic and susceptible to ameliorative treatment.
Treatment which serves only to alleviate pain does not sit comfortably within this context. I note that some of the legal authorities cited above proceed on a similar premise to the Framework, i.e. that treatment should have as its objective the return of a worker to employment. Consistently with that, treatment which actually inhibits a return to work cannot be considered reasonable.
However, the cases make it clear that there is a role for purely palliative treatment. In this respect, physical treatment such as massage is comparable to medication under s 16, the purpose of which may not be to cure a compensable condition but merely to relieve pain arising from it, or to suppress symptoms preventing participation in employment. It seems that massage treatment achieves similar objectives for Mrs Rope, in that it performs a palliative role but also facilitates functionality and participation in day-to-day activities.
Another factor in assessing the reasonableness of treatment is its cost effectiveness: see for example Holt and Rope No2. Comcare submitted that the cost of weekly massage for Mrs Rope for a further 22 years’ life expectancy would be $75,495.80. That is a substantial figure. It is, of course, very difficult to place a dollar value on the relief of pain and increased functionality which this sum would pay for over that period.
On balance, I consider that the evidence supports a finding that Mrs Rope’s massage treatment is reasonable treatment pursuant to s 16. The reviewable decision will, therefore, be set aside. However, I also consider it reasonable to expect Mrs Rope, in consultation with her medical advisers, to develop a plan (including the setting of goals) to reduce her reliance on remedial massage. I note that Mrs Rope has attempted a number of other modalities and treatments since 1987 to deal with pain. In part, those attempts have been predicated on a desire to avoid dependence on potentially-addictive medications. I am not persuaded, however, that medication would not, in the medium to long term, be a more efficacious and cost-effective alternative to massage. I consider that a plan to significantly reduce or eliminate the use of massage over the next three years is reasonable. Conversely, I consider it likely that frequent use of massage after that three-year period could not be considered reasonable treatment under s 16.
Mrs Rope’s circumstances are distinguishable from those of the applicants in a number of the cases cited above. Mrs Rope’s massage treatment has not disempowered her or distracted her from pursuing self-management of her condition (cf Bayani, Popovic); nor is it likely to be highly costly in the future (cf Rope No1, Holt), for the reasons given in the preceding paragraph; the treatment facilitates significant participation and functionality through pain relief (cf Topping); and the fact massage does not contribute to a plan for permanent improvement in her health is less relevant given her age and the unlikelihood of her ever returning to the workforce (cf Chowdhary).
With the caveats referred to in paragraph 62 in mind, the Tribunal sets aside the reviewable decision of 27 April 2016. Mrs Rope is entitled to compensation for a medial massage pursuant to s 16 as at the date of this decision.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
.................[sgd].......................................................
Associate
Dated: 16 January 2018
Date(s) of hearing: 6 March 2017 Date final submissions received: 20 June 2017 Applicant: In person Advocate for the Respondent: Mr Christopher Bilboe Solicitors for the Respondent: Comcare
57
10
0