Sincock and Comcare (Compensation) - [2018] AATA 1635

Sincock and Comcare (Compensation) [2018] AATA 1635 (12 June 2018)
Division:GENERAL DIVISION
File Number(s): 2016/4660; 2016/4661
Re:Patricia Sincock
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:12 June 2018
Place:Melbourne

The reviewable decision of 1 April 2016 that the Applicant is not entitled to compensation for physiotherapy treatment and is entitled to compensation for general practitioner consultations and fortnightly myotherapy sessions from 11 February 2016 to 2 March 2016, pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), in relation to her accepted injury is affirmed.
The reviewable decision of 26 May 2016 that the Applicant is not entitled to compensation for myotherapy treatment, pursuant to section 16 of the SRC Act, is affirmed.
...........................[sgd].............................................
Senior Member D. J. Morris
Catchwords
COMPENSATION – medical treatment – ongoing physiotherapy and myotherapy – evidence of degenerative condition – whether treatment is in relation to the accepted injury – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988, ss 14, 16
Cases
Re Popovic and Comcare [2000] AATA 264
REASONS FOR DECISION
Senior Member D. J. Morris
XX June 2018

Mrs Patricia Sincock is the Applicant in this matter. She seeks review of a decision made by the Respondent on 1 April 2016 which affirmed two earlier determinations dated

10 February 2016 and 11 February 2016 that the Applicant is not entitled to compensation for physiotherapy treatment and that she is entitled to compensation for general practitioner consultations and fortnightly myotherapy sessions from the period

11 February 2016 to 2 March 2016, under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in relation to Mrs Sincock’s accepted injury of ‘whiplash injury to neck and upper back and strain to right knee.’ This is application 2016/4660.
Mrs Sincock also seeks review of the Respondent’s decision of 26 May 2016 which affirmed an earlier determination dated 24 March 2016 that the Applicant was not entitled to compensation for myotherapy treatment under section 16 of the SRC Act in relation to the accepted injury. This is application 2016/4661.
The hearing was held on 26 and 27 February 2018. Mrs Sincock represented herself, made submissions, gave evidence and was cross-examined by Ms Julia Lucas of counsel, for the Respondent. On 27 February 2017 Mr Iain Kelman, FRACS, consultant orthopaedic surgeon, gave evidence.
The Tribunal admitted into evidence documents submitted by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents).
The Tribunal also admitted the following documents into evidence:
(a)Medical letter from Dr P. Ramachandran, neurology registrar at St Vincent’s Hospital, Melbourne, dated 6 June 2017.
(b)‘To whom it may concern letter’ from Dr P. Ramachandran, also dated 6 June 2017.
(c)Medical letter from Dr Craig McColl and Professor Malcolm Horne of Monash Neurology, dated 9 August 2000.
(d)Medical letter from Professor Malcolm Horne, dated 24 October 2000.
(e)MRI Cervical Spine performed on 14 February 2017.
(f)Medical report by Mr Ben Kewish, physiotherapist, dated 27…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sincock and Comcare (Compensation)

Details

AGLC: Sincock and Comcare (Compensation) [2018] AATA 1635
Case: [2018] AATA 1635
Decision Date: 12 June 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Sincock against a decision by Comcare to deny ongoing entitlement to physiotherapy and myotherapy treatment in relation to an accepted injury. The dispute centred on whether the requested treatments were reasonable and necessary for the accepted injury, or if they were instead related to a pre-existing degenerative condition. The case was heard by D. J. Morris SM in the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the physiotherapy and myotherapy treatments sought by Mrs Sincock were in relation to her accepted injury, and whether such treatments were reasonable in the circumstances, as required by section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The Tribunal was required to consider the evidence regarding the nature of Mrs Sincock's current symptoms, the cause of those symptoms, and the efficacy of the proposed treatments in addressing the accepted injury.

The Tribunal considered evidence from various medical professionals, including reports from Dr King, Mr Kelman, Dr O’Donnell, Dr Sillcock, Mr Xenos, and Mr Kewish. It was noted that while initial recommendations for myotherapy were considered reasonable following the accident, Mrs Sincock herself had ceased this treatment, believing it was not substantially different from physiotherapy and no longer of benefit. The Tribunal found the reasoning in *Re Popovic and Comcare* persuasive, concluding that passive physiotherapy treatment that offered limited or no long-term benefit, and potentially no short-term benefit, was not reasonable. Similarly, the Tribunal accepted Mrs Sincock's concession that myotherapy was no longer of benefit. Regarding physiotherapy, the Tribunal noted that medical opinions, including that of Mr Kelman, suggested that the applicant's spinal problems were primarily caused by ageing and degenerative changes, rather than the 1996 motor vehicle accident. While Mr Kewish's physiotherapy regimen was considered reasonable for a person with degenerative cervical spine issues, it was viewed as treating spondylosis, not the injury sustained 20 years prior.

The Tribunal affirmed the reviewable decision, finding that the myotherapy treatment was no longer reasonable treatment within the bounds of section 16 of the *SRC Act*, as there was no evidence of continuing beneficial effects. The Tribunal also found a lack of clarity regarding the ongoing necessity of physiotherapy in relation to the accepted injury, given the evidence pointing towards degenerative changes as the primary cause of current symptoms.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mrs Sincock told the Tribunal she employs around 20 people, who are supervised by a general manager. She and this person have the business in partnership; he was previously CEO but stepped back to the general manager role, which is when the Applicant became CEO.Applicant’s evidence When asked about the current condition of her cervical spine, Mrs Sincock told the Tribunal that it feels stiff throughout the neck and shoulder area. She said that it is sometimes painful, sometimes less so. She said she did not have a huge range of movement and had difficulty with some tasks such as zipping up a dress, and that she gets numbness sometimes in her left hand and had ‘some carpal tunnel effect’. Mrs Sincock said she has trouble sleeping because of back pain and wakes in the night, especially if her arms are raised. She said she can raise her arms but could not sustain that for long periods. The Applicant told the Tribunal that she also gets pain in her lower back and sciatic pain on some occasions but the main area of pain is between her shoulder blades, especially if she sits for a long period or without moving. Mrs Sincock said that she told Mr Kelman, when she saw him in connexion with him preparing a medical assessment for the Respondent, that she had a historical netball injury to her right knee and that she does have a degenerative knee problem because of arthritis. She said she had had two arthroscopes in 2015. Mrs Sincock said she has no continuing physiotherapy in relation to her knee. In terms of her daily activities, Mrs Sincock said she can undertake washing and vacuuming and could do some gardening, but not for long because of backache. She told the Tribunal that she could sit in a car for around 90 minutes but, if any longer, it became uncomfortable. She said she is more comfortable being a passenger and attributed this to the act of holding the steering wheel. In regard to her aircraft travel for work, if going on a long flight, for instance to Perth, Mrs Sincock said she would get up three times and walk about the plane, doing stretches. Mrs Sincock told the Tribunal that her husband had been very recently required to have major heart surgery and this had caused her stress, which is entirely understandable. In terms of what activities she does to manage pain, Mrs Sincock said she had played badminton since the age of 11 in the United Kingdom and in Australia since 1990. She plays once a week during tournament times and found it good for back movement and stretching. During annual closedown of the badminton stadium (from the end of December to the middle of February) she noticed a difference with her back. Mrs Sincock said she joined a gym about 7 or 8 years ago and attended around two times a week. She had seen a personal trainer for about two years, doing some cardio and strength training but no overhead work. She also walks morning and evening if away interstate and said she wears a band and tries to get to 10,000 steps a day. Mrs Sincock said she currently saw her physiotherapist about once every 4 or 5 weeks, sometimes every 6 weeks. In answer to a question from Ms Lucas, Mrs Sincock said that she saw the physiotherapist sometimes fortnightly, sometimes monthly when Comcare was funding this treatment.

Decision

Reasons for decision

Mr Kelman was referred to an MRI report of Mrs Sincock’s spine, undertaken by Dr Kate O’Donnell, radiologist, on 14 February 2017. The report ended:Conclusion:Multilevel degenerative changes with severe C5/6 spinal canal stenosis with flattening of the cord and associated bilateral severe neural exit foraminal stenosis as described. The Tribunal also had before it a 7 October 1997 medical letter from Dr Amanda Sillcock, occupational physician, to the Applicant’s general practitioner. Dr Sillcock refers to the fact that Mrs Sincock had seen an orthopaedic surgeon, Mr David Booth, who had ordered x-rays of her neck and shoulder and these “apparently showed some degeneration of her C5-6 disc.” However, Dr Sillcock said she did not see this report so presumably was basing this information on what the Applicant had told her. Mr Kelman was shown the 9 August 2000 letter from Dr McColl and Professor Horne to Dr Merigan and Professor Horne’s further letter to Dr Merigan of 24 October 2000. Mr Kelman was asked whether the motor vehicle accident in 1996 could have caused the degenerative changes cited. Mr Kelman gave the opinion that all the reports and the MRI are consistent with the Applicant’s spinal problems being caused by ageing and degeneration of the cervical spine. Mr Kelman was shown Mr Kewish’s physiotherapy report of 27 October 2016. Mr Kelman expressed the view that the treatment regimen Mrs Sincock was undertaking was reasonable treatment for a person with this degree of degeneration of the cervical spine, but that this was treating degenerative spinal spondylosis, not an injury sustained 20 years earlier.The Applicant’s submissions Mrs Sincock said that there were essentially two points in contention. The first was that the presenting conditions from the motor vehicle accident were accepted as compensable conditions and are now seen to be degenerative and, secondly, that physiotherapy and myotherapy are not seen as reasonable treatment by Comcare. Mrs Sincock drew the Tribunal’s attention to the 18 May 1999 report by Dr King. He said she suffered from a soft tissue injury to the cervical spine and a soft tissue injury to each shoulder as a consequence of her motor vehicle accident, and a soft tissue injury to her right knee from which (at the time Dr King wrote the report) she had fully recovered. Mrs Sincock also referred to the medical letter of Mr Chris Xenos who wrote on 4 May 2010 that she “had long standing cervical spondylosis, probably relating to her original motor vehicle accident in 1996.”The Respondent’s submissions Ms Lucas said that, under section 16 of the SRC Act, the treatment must be in relation to the injury and also must be, in the terms of that section, reasonable in the circumstances. Ms Lucas submitted that Comcare had paid for 630 sessions of physiotherapy between 1996 and 2016 at a cost of around $23,300. She told the Tribunal that Comcare had also paid for 604 sessions of myotherapy between 1996 and 2016 at a cost of around $26,780.

Ratio Decidendi

Legal Principle Established

In terms of impacts on Mrs Sincock’s functional abilities, the Respondent noted that she works full-time, and indeed is now CEO of her jointly owned company, and plays sport regularly. Therefore, the Respondent submitted the Applicant has a significant level of functionality.Consideration The Tribunal will first consider the delegate’s decision of 26 May 2016 which affirmed a determination of 24 March 2016 that the Applicant has no continuing entitlement for myotherapy treatment in relation to her accepted injury. Mr Kelman in his evidence agreed that the original recommendation to Mrs Sincock that she consult a myotherapist for treatment in the wake of her motor vehicle accident was a reasonable recommendation. It would appear that Mr Anderson’s treatment was of benefit to the Applicant for a period after the accident but that she herself has decided to cease it because she considered, after a discussion with Mr Kewish, that it was not substantially different from the physiotherapy she was receiving from him. The Tribunal notes that the myotherapy treatment appears not to be goal-driven in the sense of improving Mrs Sincock’s overall medical condition and accepts her concession that this treatment is no longer of benefit. Although the decision related to physiotherapy treatment, the Tribunal finds the reasoning in Re Popovic and Comcare [2000] AATA 264 (Popovic) persuasive. At [28] it found: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. The Tribunal concludes the myotherapy treatment is no longer reasonable treatment within the bounds of section 16 of the SRC Act. There is no evidence before the Tribunal, including from the Applicant, that this therapy has had continuing beneficial effects since the decision of May 2016. The reviewable decision 2016/4661 will be affirmed. In terms of the physiotherapy treatment, there is a lack of clarity in Dr King’s 1999 report. He records that Mrs Sincock suffered from a soft tissue injury to her cervical spine and to her shoulders in 1996 and then goes on to conclude that these conditions are, in his opinion, of a permanent nature. Dr King does not explain how he came to that conclusion except for the statement “in view of the lapse of time since the accident in question”. Dr King further is of the view that, although he notes x-rays reveal “very minor features of disc degeneration” he did not think this condition contributes in any way to the symptoms. The Tribunal is not medically qualified and does not derogate from Dr King’s conclusions except to say it is regrettable that he diagnosed the injuries from the car accident as soft tissue injuries (the same diagnosis others and most recently Mr Kelman subsequently made), but does not elaborate on why he thought this pathology, by itself, caused the Applicant’s back pain some three years on.