Roseanne Howes and Comcare

Case [2015] AATA 39

[2015] AATA 39

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/1987

Re

Roseanne Howes

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Dr M Denovan, Member
Date 28 January 2015
Place Canberra

The Tribunal affirms the decision under review.



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Dr M Denovan, Member

CATCHWORDS

WORKERS COMPENSATION – liability accepted for physical condition – chronic neck and shoulder pain – intervertebral disc disorder cervical region – subacromial bursitis (right) – sprain of shoulder and upper arm – meaning of ‘in relation to’ – breast reduction – plastic surgery – purpose of the treatment – no requirement for treatment to permanently improve injury – test of reasonableness – medical treatment is to related to the accepted injury and reasonable to obtain in the circumstances – decision under review affirmed.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14, 16

CASES

Comcare v Watson (1997) 46 ALD 481
Re Chowdhary and Comcare [1998] AATA 448
Re Jorgensen and Commonwealth [1990] AATA 129
Re Rope and Comcare [2013] AATA 280
Thiele v Commonwealth (1990) 95 ALR 172

SECONDARY MATERIALS

Spear, SL and JW Little, Grabb and Smith’s Plastic Surgery (Lippincott-Raven Publishers, 5th ed,  1997)

REASONS FOR DECISION

Dr M Denovan, Member

28 January 2015

INTRODUCTION

  1. In the first half of 2005, Ms Roseanne Howes developed neck and shoulder pain, diagnosed as ‘intervertebral disc disorder – cervical region’. Comcare accepted liability for this injury on the basis that it resulted from constant computer use during her work in client services at the Australian Taxation Office (“ATO”). Comcare has also accepted liability for ‘sprain of shoulder and upper arm (right)’, ‘subacromial bursitis (right)’, and ‘erosion of teeth’ pursuant to s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).

  2. Ms Howes underwent plastic surgery procedures, including bilateral breast reduction surgery and abdominoplasty performed by Dr Vladimir Milovic on 2 November 2009. Ms Howes contends the breast reduction surgery was recommended by several medical practitioners to treat her compensable injuries. She claims that her breasts were enlarged because the medication prescribed for treatment of her compensable conditions caused her to gain weight. 

  3. The applicant’s representative argues Ms Howes was simply following the advice of legally qualified medical practitioners when she had breast reduction surgery; he contends she acted under their guidance and with the genuine belief the treatment was for her compensable conditions. Mr Anforth, counsel for the applicant, contends that even if it can be retrospectively established that the operation was unsuccessful in relieving pain caused by her accepted conditions, the applicant is still entitled to the cost of the treatment.

  4. Comcare contends the breast reduction surgery was not undergone ‘in relation to’ her compensable injuries ‘at the direction’ of a legally qualified medical practitioner.[1] Comcare contends that breast reduction surgery was not ‘reasonable treatment’ in the circumstances.

    [1] As per definition of “medical treatment” in s 4, Safety, Rehabilitation and Compensation Act 1988 (Cth).

  5. Comcare further contends that if I were to find that Comcare was liable to pay for weight…

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Details
AGLC
Roseanne Howes and Comcare [2015] AATA 39
Case
[2015] AATA 39
Decision Date

CaseChat Overview and Summary

In the case of Roseanne Howes and Comcare, Ms Howes sought compensation for medical treatment, specifically breast reduction surgery, which she claimed was related to her compensable injuries. The court was required to determine whether the breast reduction surgery was undertaken at the direction of legally qualified medical practitioners in relation to her accepted injuries, and if so, whether the treatment was reasonable in the circumstances. Ms Howes had a history of chronic neck and shoulder pain, which began in approximately July 2005, and had been diagnosed with intervertebral disc disorder in the cervical region, subacromial bursitis in the right shoulder, and a sprain of the shoulder and upper arm. The court examined the evidence provided by the medical practitioners involved in Ms Howes’ treatment and considered whether the breast reduction surgery was a reasonable means of treating her compensable injuries.

The court found that the breast reduction surgery was not part of Ms Howes’ treatment plan and was not a reasonable, cost-effective means of weight reduction or reduction in the weight of her breasts. The evidence indicated that Ms Howes requested Comcare to pay for the surgery, which she would have otherwise undergone, on the grounds that there was a possibility the surgery might also benefit her compensable injuries. However, the primary purpose of the surgery was cosmetic, and not for the purpose of treating her compensable injuries. Therefore, the breast reduction surgery was not reasonable under section 16 of the Act, and Ms Howes’ claim for compensation must fail.

The decision under review was affirmed, and Ms Howes' claim for compensation in relation to the breast reduction surgery was dismissed. The court held that the primary purpose of the surgery was cosmetic, and not for the treatment of her compensable injuries. As such, the surgery was not reasonable under the Act, and Comcare was not liable to pay for the cost of the medical treatment obtained in relation to the injury.

Orders

Orders of the court

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Background

Background to the litigation

I must decide whether the breast reduction surgery Ms Howes underwent in November 2009 satisfies the following points:(a)Whether the surgery was undertaken at the direction of legally qualified medical practitioners, in relation to her accepted injuries; and if so(b)Whether the treatment reasonable in the circumstances.BACKGROUND Ms Howes has a history of chronic neck and shoulder pain which began in approximately July 2005.[2][2] See Dr May’s report dated 7 May 2008 in Exhibit 4, in which a history of six months is recorded on Ms Howes was referred by her then general practitioner (“GP”) to rehabilitation specialist Dr Judith May. Dr May first consulted Ms Howes in late September 2005[3] and continued to treat her until at least November 2008. Dr May opined Ms Howes’ primary problem was a right C5-C6 disc bulge with a secondary right shoulder impingement due to right subacromial bursitis. Dr May initially managed Ms Howes’ conditions conservatively; she prescribed oral pain medication (Tramal, Panadeine Forte, Voltaren), massage, hydrotherapy, physiotherapy, a home exercise program and guided injections around the C6 nerve root. On the advice of Dr May, Ms Howes attended a six month pain rehabilitation program, which commenced in July 2006. [3] There are five reports of Dr May included in Exhibit 4, dated 22 September 2005, 12 October 2005, Ms Howes’ symptoms progressively worsened and Dr May referred her to neurosurgeon Dr Malcolm Pell for her neck pain and to upper limb orthopaedic surgeon, Dr Maurizio Damiani, for her shoulder problems. Dr Pell first saw Ms Howes in late January 2006.[4] In a report dated 2 December 2008, he opined Ms Howes had a C5/6 disc prolapse. He suggested Ms Howes was a suitable candidate for surgery and that she may benefit from neck surgery (C5/6 foraminotomy on the right and decompression of the right C6 nerve root), which he said would be aimed at reducing her pain and getting her back to pre-injury employment. Since Ms Howes was keen to avoid surgery, Dr Pell recommended further periradicular block (nerve root) injection.[5][4] A copy of his report dated 2 December 2008 is included in Exhibit 4, and contradicts the report of Dr May, in that he did not recommend against surgery. It is clear he considered surgery to be the best course of treatment.[5] Dr Pell’s report to Pamela Coward Higgins Lawyers; dated 2 December 2008 indicates he saw her on 31 January 2006 and again on 7 November 2007. His two page report is included in Exhibit 4. Dr Damiani first saw Ms Howes in August 2007. He agreed with Dr May’s diagnosis of right shoulder impingement secondary to subacromial bursitis. He recommended surgery on her shoulder and Ms Howes was placed on the outpatient list at Canberra Hospital for consideration for surgery.[6] [6] According to Dr May’s report of 7 May 2008, Ms Howes was referred to Dr Damiani in July 2007, and his recommendations were as stated. Ms Howes’ claim for compensation, made in 2005, was rejected. She appealed and on 26 February 2009 the Administrative Appeals Tribunal (“AAT”) approved terms of consent in which it was determined that Comcare was liable under s 14 of the Act for Ms Howes’ C5-C6 disc protrusion and right shoulder impingement.[7] [7] On 26 February 2009 the AAT determined Comcare was liable in respect to the injury “intervertebral disc disorder – cervical region”. Comcare subsequently accepted liability for “sprain of shoulder upper arm (right)” and “subacriomial bursitis (right)”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Breast reduction surgery was not part of the applicant’s treatment plan, and not a reasonable cost effective means of weight reduction or reduction in the weight of her breasts. The evidence points to Ms Howes requesting Comcare pay for surgery that she was otherwise would have undergone, on the grounds that there was a possibility the surgery may also benefit her compensable injuries. The primary purpose of her surgery was cosmetic, and not for the purpose of treating her compensable injuries. Breast reduction surgery was not reasonable, for the purposes of s 16 of the Act. Her claim must therefore fail.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Ms Howes’ case is summarised in her written statement dated 11 October 2013,[11] the truth of which she attested to at the hearing. The gist of that evidence is as follows:Prior to my neck and shoulder condition, my weight would fluctuate between 65 and 78 kilograms. My bust size (other than when breast-feeding) was a DD. Post my neck and shoulder condition my weight ballooned to 104 kg and my bust size was EE to F. Due to the pain and discomfort my condition was causing I researched different treatments and alternative therapies that might help. At the time, the conservative treatment was providing some relief but I was still in a lot of pain. Some of the research led me to believe that a breast reduction would be of benefit. I had also been sent to have an assessment with Dr William Coyle, Orthopaedic Consultant in March 2007. During the course of that consultation, Dr Coyle commented that, as the bursitis in my shoulder could be quite painful his recommendation would be to go without a bra. I commented that I did not think that would be appropriate in the work place and he stated “then a breast reduction may be of some help”. This further prompted me to research this possibility. A lot of the research led me to believe that a breast reduction would definitely be of benefit. It also indicated that core strength was vital to maintaining good neck, back and body health. I had two c-section deliveries and my core muscles were not as good as they could be despite regular exercise. In conjunction with the conservative treatment I was having I decided to speak to Doctors further.I discussed it briefly with my GP, Dr Felicity Donaghy.In July 2009 I went to see Dr Vlad Milovic., Plastic Surgeon of Integrity Plastic Surgery, Deakin. We discussed my neck condition and the weight that I had put on. His advice was that a breast reduction and abdominoplasty (strengthening the stomach muscles) would be of benefit.I attended Dr Milovic’s surgery again in August 2009 and discussed the procedures further.In October 2009 the ATO sent me for an assessment with Dr Macauley, Rheumatologist. He noted that I had put on quite a large amount of weight. We discussed the pain in my shoulders and neck and that the weight I had put on had increased my bust size. I asked him if he believed a breast reduction would be beneficial and he answered “yes in a lot of cases: He then said, “I should consider a breast reduction as a matter of urgency”.On 2 November 2009 after further research and on the advice of several of the Doctors I had breast reduction and abdominoplasty surgery. Since surgery, symptoms in my right shoulder have improved and I have not had to undergo further cortisone injections to that region. My neck pain has decreased. I require less medication for pain relief.[11] Exhibit 2.CONSIDERATION Section 16(1) of the Act provides:Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of the 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.