Roseanne Howes and Comcare
[2015] AATA 39
•28 January 2015
[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.
..........................[Sgd]..............................................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 172SECONDARY 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
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”).
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.
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.
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).
Comcare further contends that if I were to find that Comcare was liable to pay for weight reduction therapy in treating the applicant’s compensable injuries, breast reduction surgery was not a reasonable form of weight reduction therapy, as other less expensive options for achieving weight loss were available.
ISSUES
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 onMs 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)”.
It was in March 2008, after the AAT decided Comcare was liable for Ms Howes’ injuries, that she underwent surgery on her right shoulder as a private patient. Dr Damiani performed the surgery.
Ms Howes underwent breast reduction surgery and abdominoplasty on 2 November 2009. Dr Milovic was the plastic surgeon who performed those two procedures.
Ms Howes returned to see Dr Damiani regarding both shoulders and elbows in 2010. She reported having initial help for the surgery on her shoulder performed in 2008, however the symptoms had flared up again with repetitive activities.[8]
[8] Dr Damiani’s written report dated 23 August 2010, contained in summons material in Exhibit 4.
In 2010 Ms Howes developed symptoms in her acromioclavicular joints. Dr Damiani diagnosed acromioclavicular joint arthritis.
On 17 July 2012 Ms Howes underwent right shoulder arthroscopic stabilisation surgery.
By letter dated 20 July 2012, Ms Howes claimed compensation under s 16 of the Act for breast reduction surgery performed on 2 November 2009. The total amount of her claim is $19,956.80.
On 22 August 2012 Comcare denied liability for the breast reduction surgery under s 16 of the Act.
On 22 April 2013, Comcare affirmed the decision dated 22 August 2014.
Ms Howes appealed to the AAT on 2 May 2013.
This matter was initially heard, and submissions completed by both parties on 10 November 2014. I reserved my decision after the hearing. During the hearing the respondent tendered summons material from Garema Place Medical Clinic in support of their submissions. It was not until after the hearing that I had an opportunity to peruse the summons material which is in excess of 400 pages. After doing so, I noted much of the summons material appeared to contradict the evidence of the applicant and I considered it a matter of procedural fairness that the applicant was given the opportunity to respond. At my request the parties reconvened the following day.
After I had put some of the material from the summons documents to Ms Howes, she stated she had personal obligations that required her immediate departure. She declined my request to reconvene at a time that suited her so she could have the opportunity to respond to any further of my questions and re-examination by both parties. After Ms Howes exited the hearing room, Mr Anforth accused me of bias. During my discussion with Mr Anforth, Ms Howes re-entered the hearing room, and it became obvious she had been listening from outside in the corridor. Uninvited, she proceeded to volunteer further evidence, some of which the respondent objected to, on the grounds of procedural fairness issues. In a letter dated 12 November 2014, Maurice Blackburn Lawyers, for the applicant, requested I ‘recluse’ [sic] myself from the matter. I declined.
Both parties were given the opportunity to make further submissions. The respondent and applicant submitted their supplementary submissions to the tribunal on 18 November 2014,[9] and 19 November 2014,[10] respectively.
[9] Exhibit 15.
[10] Exhibit 16.
APPLICANT’S CASE
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.
The term “medical treatment” is defined in s 4 of the Act. Relevant to this case is s 4(b), which reads:
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner.
For a course of treatment to come within the scope of paragraph (b) of the definition of ‘medical treatment’ it must possess two important qualities – it must be ‘therapeutic treatment’, and it must be ‘obtained at the direction of’ a legally qualified medical practitioner. It is well established that therapeutic treatment is a purposive activity that extends to include treatment that is palliative or that is for the purpose of alleviating the symptoms of an injury
In Thiele v Commonwealth (1990) 95 ALR 172, Hill J said:
What is contemplated in both pars (a) and (b) of the definition [of ‘medical treatment’] is treatment of the patient in the sense of dealing with him to relieve or cure his illness.[12]
[12] (1990) 95 ALR 172 at 178.
Hill J observed in the case of Thiele, treatment “does not become treatment merely because it is advised, prescribed or ordered by a medical practitioner”.[13] This formulation was accepted by Finn J in Comcarev Watson (1997) 46 ALD 481 when construing the phrase ‘at the direction of’ in paragraph (b) of the definition, noting that the direction must be to obtain ‘therapeutic treatment’ – ‘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’.[14]
[13] (1990) 95 ALR 172 at 178.
[14] (1997) 46 ALD 481 at 484.
In the matter of Rope and Comcare [2013] AATA 280, member Webb made the following observations,
The sharp focus of the inquiry is whether the activity is obtained, applied or undertaken for a therapeutic purpose in the context of a program designed for the treatment of an injury. The important point is that ‘therapeutic treatment’ is for the purpose or object of treating an injury – the characteristics or qualities of the particular activity must be considered in the context of the purpose to which it is being put… its purpose or object must be the treatment of the particular injury in question. If such is not the actual, specified purpose of the activity then notwithstanding its beneficial effects, it will not relevantly be therapeutic treatment for present purposes.[15]
[15] [2013] AATA 280 at 33.
I have adopted a similar approach as that taken by member Webb. In order to determine whether breast reduction surgery was ‘therapeutic treatment’ which Ms Howesobtained ‘at the direction of’ legally qualified medical practitioners – there are three questions to answer:
(i)Did Ms Howes undertake breast reduction surgery at the direction of a legally qualified medical practitioner?
(ii)If so, did the doctor who directed her, intend the surgery to be therapeutic in the context of Ms Howes’compensable injuries?
(iii)For what purpose was breast reduction surgery undertaken?
Did Ms Howes undertake breast reduction surgery at the direction of a legally qualified medical practitioner?
Mr Anforth, on behalf of the applicant, contends a number of legally medically qualified practitioners directed the applicant to undergo breast surgery. Mr Anforth indicated those doctors were Dr Felicity Donaghy (Ms Howes’ GP), Dr Milovic, Dr Alastair Taylor, Dr Damiani, Dr David Macauley and Dr William Coyle.
It is not in dispute that Ms Howes was referred to plastic surgeons Dr Milovic and Dr Taylor by Ms Howes’ GP. In her referral letters to the plastic surgeons, Dr Donaghy states it is Ms Howes who seeks advice regarding the cosmetic procedures. After having the opportunity to read the clinical notes of Dr Donaghy, I do not accept that she ‘directed’ Ms Howes to have a breast reduction. There is nothing in either the referral letters or her clinical notes that would support such a conclusion. I find that Dr Donaghy sent Ms Howes to the plastic surgeons, at the request of Ms Howes, however she did not direct Ms Howes to have breast reduction surgery.
It was the applicant’s evidence that she had been told by orthopaedic surgeon Dr Coyle that going without a bra would help relieve the pain from the bursitis in her shoulder. When she expressed her opinion that to do such would be inappropriate at work, he stated “then a breast reduction may be of some help”.[16]
[16] Applicant’s statement at Exhibit 2.
Rheumatologist Dr Coyle, at the request of the respondent, saw Ms Howes in March 2007. There is nothing in the report of Dr Coyle that supports Ms Howes claim that he advised her to go without a bra or to consider breast reduction surgery. During cross-examination, Ms Howes said she could not recall whether it was her or Dr Coyle who first bought up the topic of breast reduction surgery.
I do not accept Dr Coyle directed Ms Howes to undergo breast reduction surgery. Even if Dr Coyle considered breast reduction surgery would be beneficial, Dr Coyle was not one of Ms Howes’ treating doctors and not in a role that would allow him to provide direction regarding any therapy in relation to her accepted or compensable injuries. At the beginning of his report Dr Coyle wrote that Ms Howes understood he was not a treating doctor and was not able to give her advice regarding treatment.
On 23 October 2009 Ms Howes was reviewed, at the request of the respondent, by consultant rheumatologist Dr Macauley. It was the applicant’s evidence that Dr Macaulay noted her weight gain and increase of breast size. She asked him if he believed breast reduction would be beneficial and he answered, “[Y]es in a lot of cases… I should consider a breast reduction as a matter of urgency”.[17]
[17] Applicant’s statement at Exhibit 2; Exhibit 1, T13, page 73.
Ms Howes claims she booked in for breast reduction surgery after Dr Macaulay indicated she should have the procedure urgently; however the contemporaneous evidence shows that not to be the case.
The report of Dr Macauley[18] and the summons material evidence indicate that Ms Howes had already decided to proceed with breast reduction surgery and had previously booked in for the procedure, prior to consulting Dr Macauley.[19] Based on the history of weight gain and increased breast size provided by the applicant Dr Macauley supported her decision to undergo breast reduction surgery; however he did not ‘direct’ her to undertake the procedure.
[18] Report dated 11 December 2009 in Exhibit 4.
[19] The contemporaneous medical evidence indicates Ms Howes initial consultation with Dr Milovic was 13 July 2009, and she was in discussion with Dr Milovic’s Reception and Patient Administrator between 21 July 2009 –
Plastic surgeon Dr Milovic performed Ms Howes’ breast reduction surgery. As well as providing a number of letters and reports in relation to Ms Howes’ cosmetic surgery procedures, he gave evidence by telephone at the hearing. It is clear that Dr Milovic considered breast reduction surgery would be of benefit to Ms Howes. In his letter dated 22 July 2009, he stated that Ms Howes would “benefit from bilateral breast reduction” and opined that she would “have relief of the pain in her shoulders and back after [the] procedure”.[20] I accept Mr Milovic and plastic surgeon Dr Taylor directed Ms Howes to undergo breast reduction surgery.
Did Dr Milovic and/or Dr Taylor intend breast reduction surgery to be therapeutic treatment for her compensable injuries?
[20] Contained in summons material in Exhibit 4.
When I questioned Dr Milovic during the hearing, he said that he did not focus on the aetiology of the pain Ms Howes was experiencing. He said he understood her pain was chronic. He said he relied on the information given to him by Ms Howes, and also on the referral letter from Ms Howes’ GP. In her referral letters to both Drs Milovic and Taylor, Dr Donaghy did not specify what injuries or medical ailments Ms Howes’ suffers from in her neck and shoulder. Dr Donaghy only referred to Ms Howes’ symptoms of chronic shoulder and neck pain.
Dr Taylor offered similar advice to that of Dr Milovic in his letter to Dr Donaghy dated 15 September 2009. Dr Taylor opined that Ms Howes would find an improvement in her neck and back pain from the reduction in weight. He made no reference to her compensable injuries, and did not suggest that breast reduction surgery would be of benefit to those injuries, or the symptoms caused by those injuries.
Drs Taylor and Milovic are the only doctors who it may be said ‘directed’ Ms Howes to undergo breast reduction surgery. I do not accept that either of these doctors considered breast reduction surgery was specifically treating Ms Howes’ compensable injuries, or symptoms that result from those injuries. The evidence suggests neither Dr Taylor nor Dr Milovic even knew what the pathological nature of Ms Howes’ compensable injuries were at the time they directed her to undergo the procedure. They advised breast reduction surgery may help neck and back pain caused by heavy breasts, not caused by C5-C6 disc prolapse or by impingement and sub-acromial bursitis. I find neither Dr Taylor nor Dr Milovic ‘directed’ Ms Howes’ to undergo therapy for treatment of her compensable injuries. Rather, they both recommended the surgery as a way of relieving pain in the neck and shoulders due to excessive weight of her breasts.
Even though Dr Macauley did not see the applicant until after she had made arrangements to undergo breast reduction surgery, he did consider it was necessary that Ms Howes urgently address her excessive weight before any further therapeutic treatment for her compensable injures could be undertaken. As I will discuss, there is no evidence that Mrs Howes’ breast enlarged disproportionately to her overall weight gain. Even so, it could be argued that Drs Taylor and Milovic directed Ms Howes to undergo breast reduction surgery to treat excess weight, which was an issue that needed addressing as a prerequisite to the treatment of the compensable conditions.
Even if breast reduction therapy was of assistance in reducing some of the weight her claim fails as I have found that the primary reason for her undertaking the breast reduction was more likely to be cosmetic, and also because such a procedure was not reasonable treatment for excessive weight, even if the weight loss was required urgently.
For what purpose was the breast reduction surgery undertaken?
After considering all of the available evidence including that of Ms Howes, I am reasonably satisfied that she underwent breast surgery primarily for cosmetic reasons.[21] It may have been the case that she also thought the surgery might assist with her neck pain by reducing some of the weight in her breasts; however, surgery is not therapeutic merely because it may provide some benefit to the applicant’s compensable injuries. The test is for what purpose the treatment was undertaken. I believe Ms Howes would have undergone the surgery when she did, regardless of whether it may or may not help relieve her pain.
[21] Transcript of proceedings on 10 November 2014, page 18: Ms Callan, for the respondent, questioned Ms Howes during which Ms Howes stated that it was a consideration that the breast reduction surgery would address her personal purpose of reducing the size of her breasts from a cosmetic perspective.
Ms Howes’ account of how she came to have the surgery is inconsistent with the contemporaneous material. I find her to be an unreliable historian.
Ms Howes was contemplating plastic surgery on her breasts prior to the onset of her compensable injuries. Ms Howes admitted this when she was cross-examined by the respondent. This was prior to any significant weight gain.
In November 2006, approximately four months prior to consulting Dr Coyle, Ms Howes consulted plastic surgeon Dr Ferguson[22] for the purpose of obtaining advice on cosmetic surgery, including breast reduction surgery. Ms Howes made no mention of her consultation with Dr Ferguson in either her written submissions, or her evidence-in-chief. In his brief report Dr Ferguson made no reference to Ms Howes’ neck, back or shoulder pain, or her desire to treat that pain by breast reduction.
[22] Contained in the summons material of in Exhibit 4.
During cross-examination, Ms Howes said she could not recall who first broached the topic of breast reduction surgery, Dr Coyle or herself. I consider it most likely sometime prior to, or during the consultation with Dr Coyle, Ms Howes realised some people have reduced neck pain following breast reduction surgery and that if she argued this was the reason she was undergoing the surgery, Comcare would accept financial responsibility for the surgery that she was already contemplating.
Ms Howes made arrangements to undergo breast reduction surgery some time prior to 14 October 2014. On that date, she advised her GP of the date she would be having her cosmetic procedures performed. Ms Howes gave oral evidence to the effect that she decided to go ahead with breast reduction surgery after Dr Macauley advised her she needed the operation urgently. That cannot be true, as Ms Howes first saw Dr Macauley on 23 October 2014 and had her cosmetic procedures 9 days later.[23] Ms Howes’ motivation for making arrangements to undergo breast reduction surgery could not have been for the reasons she claims. Her attempts to retrospectively write Dr Macauley into the history of why she underwent the surgery when she did, can only be for the purpose of having Comcare reimburse her for the cost of her breast reduction surgery.
[23] Contained in the summons material of Ms Howes’ GP in Exhibit 4; notes on 14 October 2009 indicate Ms Howes told her GP that she was booked in for breast reduction surgery on 2 November 2009.
Ms Howes gave oral evidence to the effect that prior to undergoing breast reduction surgery her pain was so bad that she was keen to pursue any therapy that might help reduce that pain. Had someone told her that it would help to wear the colour purple, she said, she would have, as she was so very desperate for a remedy.[24] The fact is that Ms Howes did not accept, or even research, many of the therapies that were suggested to her, which would have been likely to benefit her compensable injuries. For example, Ms Howes did not take the advice of Dr Coyle, or follow through with the recommendations he made for treatment in his report. In his report of March 2007, Dr Coyle recommended discectomy and neurolysis of the right C6 nerve root (no mention of going without a bra or having breast reduction surgery was made). The recommended procedure made by Dr Coyle was similar to the procedure recommended by Neurosurgeon Dr Pell, who she first saw in January 2006. As already noted, Dr Pell advised that she would benefit from surgery that would be aimed at reducing her pain, and getting her back to her pre-injury employment.
[24] Transcript of proceedings on 10 November 2014, page 24.
Ms Howes did not undertake the treatment recommended by either Dr Pell or Dr Coyle. Dr Pell noted that Ms Howes was reluctant to undergo surgery that was directed at treating her compensable injury and the pain associated with it. Yet Ms Howes was prepared to undergo breast reduction surgery, supposedly to relieve pain caused by excessive weight in her breasts.
Ms Howes claims to have researched the option of breast reduction after an off-handed remark by Dr Coyle, yet when I asked her if she researched treatment options related to weight loss after Dr Macauley advised she needed to lose weight urgently, she said she did not think she did. She did not address the issue of her excessive weight at the time, even though Dr Macauley said no other therapy could be considered until she urgently lost weight. Ms Howes said she would have discussed weight loss with her GP as part of her general discussions, but she did not address the problem as and when it was raised by Dr Macauley. Asked if she considered taking oral medications to assist weight loss at that point in time, as she had done prior to her compensable injury, she said she was already on a number of tablets to treat her condition and did not want to add more. I find Ms Howes did not pursue every therapeutic option suggested to her, nor did she engage in research about most of the treatment options suggested to her. Ms Howes’ research appears to have been limited to the procedures that she was interested in for reasons other than pain relief. I do not accept that the reason Ms Howes researched abdominoplasty and breast reduction surgery, and underwent those procedures was for the primary purpose of reducing her pain. Were that the case, she would have researched, and at least contemplated undergoing other therapies recommended to her. If she did undertake any research, she selectively focused on the recommendations that involved cosmetic surgery, and dismissed or ignored possible therapies designed specifically to alleviate the pain form her compensable conditions.
Further proof that Ms Howes was focused more on cosmetic gain than pain relief, at that point in time, is the fact that she underwent other cosmetic surgery in the same period as her breast reduction surgery. Ms Howes underwent abdominoplasty at the same time as she had a breast reduction. Although no longer part of her claim for costs from Comcare, Ms Howes’ consistently maintained during her evidence that the only reason for the abdominoplasty was to strengthen her ‘core muscles’, which she understood were essential for good posture, back strength and overall fitness.
Ms Howes had earlier failed to follow through with far less invasive therapy designed to strengthen her core muscles. On 10 June 2009,[25] Ms Howes was reviewed by physiotherapist, David Kennard. He stated her treatment plan included exercises and therapy specifically directed at improving the strength of her core muscles. Upon being questioned, Ms Howes had difficulty remembering the interview with Mr Kennard. She said she did not return to complete the therapy; she thought the reason for her not attending was that she had difficulty getting an appointment, or perhaps the therapist was new and booked out. Ms Howes said that she had similar promises made by another physiotherapist and did not put much hope on the outcomes being as good as was suggested in Mr Kennard’s report. I find Ms Howes’ motivation for the undergoing abdominoplasty was cosmetic, and not primarily to strengthen her core muscles.
[25] Report only made available through Exhibit 3, and this was also part of the material I wished to allow Ms Howes the opportunity to respond to.
Although Ms Howes insists in her evidence that she underwent plastic surgery for the purpose of treating pain from her compensable injuries, the clinical notes of Dr Milovic include consent forms signed by Ms Howes for Botox therapy.[26] Asked if Ms Howes had Botox treatment, Dr Milovic, was coy and replied: “Would you like some as well? Don’t you think that 90 per cent of the women would have Botox?”[27] Ms Howes refused to answer when asked if she had Botox treatment.
[26] Exhibit 3.
[27] Transcript of proceedings 10 November 2014, page 57.
Ms Howes’ claims that following breast reduction surgery she had less pain in her shoulder, and required less medications for pain relief, is refuted by the available medical evidence. In September 2010, approximately nine months after breast reduction surgery, Ms Howes’ GP applied to the government for an authority prescription for an increase in dose of pain medication, stating in the application that pain is not controlled on the lesser dose. In a letter to Ms Kane (a delegate of Comcare) dated 17 May 2011,[28] Dr Donaghy states Ms Howes’ pain has continued to increase in her neck, both shoulders and elbows, and she is now receiving twice the dose of analgesia she previously required.
[28] Contained in the summons material in Exhibit 4.
There is no way to determine the change in the size of Ms Howes’ breasts, no records were kept, and those doctors who have noted her breasts have enlarged have relied on the history provided by Ms Howes. Even if her breasts did enlarge to the degree she claims, that was not the motivation for her having breast reduction surgery. When Ms Howes first consulted plastic surgeon Dr Ferguson, she weighed approximately 88 kg, only 4 kg more than her weight prior to the onset of her compensable injury. Ms Howes was also only 88 kg when she claims the comments of Dr Coyle prompted her research about reduction surgery. As I have already stated, Ms Howes did not commence taking medications associated with weight gain until around December 2008. Any reduction in her breast size Ms Howes deemed was necessary at that point in time could not be related to weight gain due to medications prescribed to treat pain from compensable injuries. Ms Howes admitted to having considered breast reduction surgery prior to her compensable injury, because, she said, she was larger than most women.
I conclude that Ms Howes’ breasts were excessively large prior to her compensable injuries, and that as a result of her desire to have her breasts reduced to a more normal size and not because of a belief her pain would be relieved, she contemplated, and underwent surgery.
Ms Howes did not make a claim for the cost of the breast reduction procedure until approximately two and one half years after the procedure was performed. I do not accept her claim that she failed to lodge a claim because of the way she had been treated by delegates of Comcare to date. Ms Howes could have placed a claim in the post, and did not have to personally interact with a Comcare delegate. I think the explanation she provided for the delay on the second day of the hearing is closer to the truth. Ms Howes said after she spoke to her solicitor she realised she may be entitled to the costs of the procedure.[29] The lengthy delay in making the claim supports the respondent’s position that Ms Howes’ motivation for undertaking the procedure was cosmetic.
[29] Transcript of proceedings 11 November 2014, page 26.
Although Ms Howes insisted she had no interest in the cosmetic benefits of the breast reduction procedure and was motivated only by the potential to gain of pain relief, the letter to Dr Donaghy from Dr Milovic on 8 December 2009 suggests otherwise. In that letter Dr Milovic states that “[Ms Howes] is very pleased with the cosmetic outcome and achieved reconstructive goals” (emphasis added).[30]
[30] Contained in the summons material in Exhibit 4.
Ms Howes gave evidence that the benefits of reduced pain from the breast reduction surgery came on gradually and were not present when Dr Nicholas Burke[31] assessed her on the same day that she saw Dr Milovic on 8 December 2009. On the applicant’s own evidence, the only reconstructive goals that Dr Milovic was referring to being achieved could therefore only have been cosmetic. Dr Milovic made no mention of Ms Howes’ pain, or the possibility of pain being assisted by the surgery, in that letter. The letter of Dr Milovic supports a conclusion that at the time Ms Howes underwent breast reduction surgery her motivations were predominantly, if not completely, cosmetic.
[31] Exhibit 1, T14, page 74.
In addition to the doctors already referred to, Ms Howes’ has been reviewed by a number of specialist doctors since her breast operation. The reports of many of those doctors are available in the summons material. Those relevant to her compensable injuries include, but are not limited to:
·Neurosurgeon rheumatologist Associate Professor Les Barnsley, report dated 14 September 2010;[32]
·Dr Justin Pik report dated 19 October 2010;[33]
·Consultant neurosurgeon Mr Stuart, report 25 February 2011, consultant in rehabilitation;
·Pain and musculoskeletal medicine Dr Geoffrey Speldewinde, reports dated 29 July 2011 and 5 December 2011;[34]
·Rheumatologist Dr San Wong report dated 26 October 2011;[35]
·Occupational physician Dr Amanda Sillcock report dated 1 December 2011;[36] and
·Orthopaedic surgeon Dr John Kingsley Walsh report dated 27 December 2012.[37]
[32] Contained in the summons material in Exhibit 4.
[33] Exhibit 1, T22, page 92.
[34] Contained in the summons material in Exhibit 4.
[35] Ibid.
[36] Exhibit 1, T27, page 101.
[37] Contained in the summons material in Exhibit 4.
Most of these doctors in this list saw Ms Howes for the first time after she underwent breast reduction surgery. As is usual, those doctors documented the history of Ms Howes’ injuries, including the history of all the treatments she has had. Most of those doctors rely only on the history provided by Ms Howes. Whilst most of these doctors make mention of the shoulder surgery performed by Dr Damiani in March 2008, there is no mention of the breast reduction surgery in any of their reports. If Ms Howes believed she underwent breast reduction surgery to treat pain due to her compensable injuries, regardless of whether or not the operation was successful, I consider it unusual that she would not mention the operation when she was providing the history of the treatment of her injuries. If Ms Howes’ statement to this tribunal about the benefits of the breast reduction surgery were accurate, those being that her pain was reduced and she required less medication and joint injections to treat the pain, I would expect the surgery and subsequent benefits to have been documented in the reports of most, if not all of the doctors. I consider the likely reason the procedure and its benefits are not referred to in any of the medical reports referred to above is because Ms Howes did not regard the surgery as a treatment for her compensable injuries.
Whilst there is ample authority that therapy need not be successful for the costs to be covered, the point I make is not that the treatment was unsuccessful, rather that the evidence is inconsistent with a finding that Ms Howes underwent the procedure for the primary purpose of treating her compensable injuries.
Was it reasonable under the circumstances for Ms Howes to undergo breast reduction surgery as part of urgent weight loss treatment?
Gray J in Re Jorgensen and Commonwealth [1990] AATA 129 noted the applicant bears the onus of establishing whether the medical treatment in question is reasonable. I find that Ms Howes has not established that breast reduction surgery was reasonable in the circumstances of this case.
In determining whether the treatment was reasonable, it must be decided whether weight reduction treatment was reasonable therapy for Ms Howes’ compensable injuries, and if so, weather breast reduction surgery was a reasonable form of therapy to treat excessive weight.
Was therapy to reduce excessive weight reasonable treatment for Ms Howes’ compensable injuries?
Although Ms Howes claims she gained weight as a result of her compensable injuries, she has been examined by a large number of specialists in relation to her neck and shoulder pain, and none of those specialists or doctors have indicated that Ms Howes has put weight on for the reasons that she claims, or that the pain from her compensable injuries was contributed to by her weight gain. There is no evidence in the material before the tribunal suggesting that the particular medication Ms Howes was taking caused weight gain. I do accept that some of the medications taken by Ms Howes from December 2008 onwards are known to be associated with weight gain. On balance, I accept that the weight gain Ms Howes experienced after that time was a result of those medications.
Although Dr Macauley considered urgent weight loss was necessary prior to any other form of treatment for Ms Howes’ compensable injuries, orthopaedic and spinal surgeon Dr David Maxwell disagrees. He examined the applicant at the request of the respondent and gave oral evidence at the hearing. Dr Maxwell, in his first written report, stated that “[t]here is no evidence that breast reduction surgery has any effect on chronic neck pain”.[38]
[38] Contained in the summons material in Exhibit 4, Dr Maxwell’s report dated 1 August 2013, page 5.
Dr Milovic, took issue with this statement of Dr Maxwell’s. In his report dated 27 August 2014,[39] Dr Milovic referred to Grabb and Smith’s Plastic Surgery, 5th edition,
p 726:
Heavy pendulous breasts cause physical discomfort. Common complaints are neck and back pain and irritating grooves cutting into the skin of the shoulders by pressure of the brassiere straps [emphasis added].
[39] Exhibit 6, page 2.
In oral evidence at the hearing, Dr Maxwell said that after reading Dr Milovic’s report he undertook further research on the topic of pain and breast reduction surgery. He said that there are some studies that show a decrease in neck and shoulder pain following breast reduction surgery, but these were not people who had any specific injuries or pathology in relation to the neck or shoulders. It was felt the improvement may be due to an improvement in posture. Dr Maxwell said a lot of the perceived benefit came from the fact that after breast reduction surgery, many people felt better about themselves and experience a boost in their self-esteem. Dr Maxwell opined that breast reduction surgery could not affect Ms Howes’ compensable injuries. Referring to Ms Howes’ narrowing of the C6 intervertebral diameter, Dr Maxwell opined that breast reduction could not alter the diameter of the intervertebral diameter, the narrowing of which is the reason Ms Howes’ experiences pain.
Dr Macauley was aware of the exact pathological nature of Ms Howes’ compensable injuries and was appropriately qualified to make suggestions about appropriate treatment. Although he supported Ms Howes’ decision to undergo breast reduction surgery, Dr Macauley did not suggest the surgery would specifically treat the applicant’s compensable injuries. Rather, he opined her ‘excessive weight’ would “aggravate her neck and any defect in her posture”, [40] and recommended urgent weight loss.
[40] Exhibit 1, T13, page 73; Dr Macauley noted that Ms Howes has put on approximately 20kg to 30 kg in weight over the last few years.
Dr Maxwell disagreed. He gave evidence to the effect that poor posture and excessive weight would not affect the pain resulting from Ms Howes’ compensable injuries.
I consider it likely that Dr Macauley was influenced by the history of weight gain and breast enlargement provided by the applicant. I have found that the applicant is an unreliable historian, and Dr Macualey’s apparent support for breast reduction surgery must be taken in context.
I accept Dr Macauley considered it would be beneficial for Ms Howes to reduce the size of her breasts. Dr Macauley did not opine urgent breast reduction surgery was necessary. He did state that urgent consideration of breast reduction surgery should be had. His comment must be taken in context. At the time Ms Howes saw Dr Macauley, she was scheduled to undergo breast reduction surgery in nine days. I consider it likely that the urgent consideration Dr Macauley mentioned had more to do with arranging for Comcare to accept financial responsibility for the surgery Dr Macauley knew Ms Howes was about to undergo in nine days.
I make no finding as to whether weight reduction was a reasonable treatment necessary as part of a treatment plan for Ms Howes’ compensable injuries. This is because, even if I were to find in the affirmative, the claim would fail, for the following reasons.
Was breast reduction surgery the most cost effective means of treating Ms Howes’ excessive weight?
In his report dated 27 August 2014, Dr Milovic quoted from a textbook section on the subject breast reduction surgery:
Whereas planned preoperative weight reduction is encouraged in the obese individual, the recalcitrant patient still benefits from reduction mammoplasty. [41]
[41] Spear S L, Little J W, Grabb and Smith’s Plastic Surgery (5th edition, Lippincott-Raven Publishers, 1997), page 726 as cited in Exhibit 6.
Despite this recommendation in the textbook, Dr Milovic said he did not advise nor ask Ms Howes to lose weight prior to surgery. Asked if Ms Howes breast size might have reduced had she simply lost weight, especially given she claims her breasts had only gone from a size DD to F due to recent weight gain, Dr Milovic said that would not necessarily be the case as loss of breast size with whole body weight loose varies from individual to individual, and in many cases it will not be the case. He said that the usual expectation is that women will lose 100 g off each breast for every 10 kg they lose of body weight. He said he had removed more than 500 g from each of Ms Howes’ breasts. He was thereby able to expedite the amount of weight loss from her breasts and reduce the pain. Dr Milovic did not rule out the possibility that Ms Howes would lose some of the excess weight in her breasts if she were to lose weight by diet and exercise. Dr Milovic stated he relied on the history provided to him by Ms Howes, and I have found her to be an unreliable historian. His opinions must be taken in that context.
Although the respondent argued that there were many more economical ways to treat excessive weight, no specific methods or costs were submitted. I have no doubt that there are numerous possible ways to loss weight, and the costs of a dietician, exercise program, or enrolment in an organisation such as ‘Jenny Craig’ or ‘Weight Watchers’ would be considerably less costly than the approximately $20,000.00 cost of Ms Howes’ breast reduction surgery.
It is Ms Howes’ own evidence that prior to any weight gain, her breasts were already bigger than the average woman. I accept that her breasts increased in size, proportional to the weight gain she experienced in the rest of her body, when she put on weight due to the medications that were prescribed for her compensable injuries. There is no objective evidence that suggests Ms Howes’ breasts enlarged disproportionately to the gain she experienced in the remainder of her body when she put on weight. I consider it reasonable to expect that her breasts would have returned to the size they were prior to the weight gain, had Ms Howes lost weight by more conservative means, such as diet and/or exercise.
Although Dr Milovic stated that sometimes that does not happen, it is not reasonable treatment to undergo breast reduction surgery without first attempting to lose the weight gained by less invasive and less expensive methods.
Dr Macauley’s advice was that Ms Howes required urgent weight loss. He did not confine his advice to the weight on her breasts alone. This means that even if Ms Howes lost weight on her breasts as a result of breast surgery, she still required urgent weight reduction for the remainder of her body. It was not, in my opinion reasonable, for the purposes of s 16 of the Act, for Ms Howes to pursue breast reduction surgery as a form of reducing the weight of her breasts, until she had attempted one or more general weight loss programs. Even then, the surgery would not necessarily be reasonable.
Was breast reduction surgery part of a plan?
In Re Chowdhary and Comcare [1998] AATA 448 the tribunal emphasised the importance of an appraisal and/or indication that the treatment is part of a plan, for permanent improvement in the health of an employee.
This is particularly important when costly expenditure is contemplated. By undertaking surgery without consulting Comcare or any of the doctors that were involved in the treatment of her compensable injuries, Ms Howes has denied the respondent the opportunity to appraise the potential benefits of the treatment, and to make a determination as to whether the therapy is an appropriate part of the treatment plan for Ms Howes.
As part of her ongoing management, Ms Howe was reviewed at the request of the respondent by Dr Macauley in October 2009 and by occupational physician Dr Burke in December 2009.[42] Ms Howes continued to see Dr Damiani, who recommended physiotherapy and hydrotherapy around the time of Ms Howe breast reduction surgery. He noted that hydrotherapy had not been undertaken, because she recently had plastic surgery done by Dr Milovic.
[42] Exhibit 1, T14, page 74.
Rather than being part of the treatment plan, by deciding to have breast reduction surgery when she did, Ms Howes interfered with the treatment plan that was suggested by Dr Damiani.
In his letter to Dr Donaghy dated 10 June 2009, physiotherapist Mr Kennard stated that the plan for Ms Howes’ right neck and arm complaint is to restore full pain-free range of motion. Mr Kennard said that Ms Howe will be prescribed a “home exercise program consisting of range of movement exercises, stretches, neutral mobilization techniques and progressive strengthening program for her core and postural muscles.”[43] It was Ms Howes’ evidence that she did not follow through with this provider. It is not for the applicant to pick and choose the therapies of their choice, and then seek to claim reimbursement for that choice. Treatment must be part of an integrated plan that involves the coordination of all providers. If there is no coordination, not only might there be inadequate or inappropriate treatment, there may be a misuse of the limited funds available to Comcare.
[43] Contained in the summons material in Exhibit 4.
CONCLUSION
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.
I certify that the preceding 91 (ninety -one) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member ..............................[Sgd]..........................................
Associate
Dated 28 January 2015
Date(s) of hearing 10/11/2014 Date final submissions received 18/11/2014 Counsel for the Applicant Mr Allan Anforth Solicitors for the Applicant Maurice Blackburn Lawyers Counsel for the Respondent Ms Sophie Callan Solicitors for the Respondent Sparke Helmore Lawyers
27 September 2005; see also referral letter to Dr May from Dr Karen Jenkins dated 12 September 2005, in which the onset date is said to be two months prior to 12 September 2005 contained in same exhibit.
2 November 2005, 7 May 2008, and 28 November 2008.
13 August 2009 during which time they were discussing costs and dates. Ms Howes consented to have the procedures performed and indicated her request to have the procedure by signing a “procedural consent form” on 12 October 2009, some time prior to first consulting Dr Macauley on 23 October 2009. In evidence is an estimate of fees from Dr Milovic, addressed to Ms Howes, which appears to have been generated on 5 August 2009, and signed by Ms Howes on 14 October 2009. Ms Howes visited her GP on 14 October 2009, and the clinical notes of Dr Donaghy indicate Ms Howes advised she had made arrangements to undergo her breast reduction surgery for 2 November 2009. In evidence is a histopathology which details a ‘collection date’ of 2 November 2009, and provides clinical notes pertaining to the breast reduction.
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