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

1. 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.

2. 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.

3. 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.

4. The Tribunal admitted into evidence documents submitted by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents).

5. 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 October 2016.

   (g)Medical report by Dr Dick Merigan, general practitioner, dated 26 October 2016.

   (h)Medical report by Mr Clint Anderson, myotherapist, dated 2 November 2016.

   (i)Six Functional Assessments by Mr Anderson, of various dates.

   (j)Report from Mr Chris Xenos, FRACS, adult and paediatric neurosurgeon, dated 4 May 2010.

   (k)Comcare Claim Invoice Line Item List printed 20 September 2016.

   (l)Comcare Claims Event Synopsis Report printed 19 September 2016.

   (m)Human maps as drawn by the solicitor for the Respondent and marked by the Applicant during the hearing on 28 February 2018.

   (n)Report by Mr Iain Kelman, FRACS, dated 30 December 2016.

   (o)Letter of instruction to Mr Kelman from the Respondent’s solicitor, dated 10 November 2016.

6. The Applicant also provided a letter from a Comcare delegate dated 19 December 2017 advising her that she was entitled to general practitioner reviews and related pharmaceuticals up to and including 12 September 2017 under section 16 of the SRC Act. The Tribunal directed parties to make written submissions in relation to this letter after the hearing, and both did so. These were taken into account in this consideration.

   Circumstances of the original claim

7. Mrs Sincock was born at the end of 1955.  In 1996 she was employed as a Traineeship, Development and Promotional Officer in the then Department of Employment, Education, Training and Youth Affairs (DEETYA). On 6 June 1996, Mrs Sincock was involved in a car accident. She had driven from home to see a work client and was then on the way to work. The Respondent accepted liability under section 14 of the SRC Act for a compensable injury described as ‘whiplash injury to neck and upper back and strain to right knee’, arising out of the car crash.  Comcare has been paying compensation to the Applicant since the time of the acceptance of liability in 1996.

8. Mrs Sincock remained an officer of DEETYA until 1998.  Since early 1999 she has operated, with a business partner, her own transport logistics training company, of which she gave evidence that she became chief executive officer (CEO) in April or May 2017.  

   
   

   Mrs Sincock told the Tribunal that from February 1999 her role has been travelling to see employers, assessing their needs and then putting in place training programmes.  She told the Tribunal she travels at least once a month interstate, sometimes more frequently.  Her business is based in Preston and because she lives some way out of the central part of Melbourne, her daily commuting time can vary from 50 minutes on a good day to sometimes up to 2 hours.  Mrs Sincock told the Tribunal she tries to work from home two days a week and attempts to work a nine-day fortnight, but that varies according to work requirements.

9. 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

10. 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’. 

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. In her evidence, Mrs Sincock said she had ceased her myotherapy treatment because she felt seeing a physiotherapist is sufficient.  The Tribunal asked the Applicant when she stopped seeing Mr Anderson, and Mrs Sincock said she stopped seeing him in August 2017 because she made her own decision to try not to have this regular treatment; she was of the view that ending these visits ‘did not make a lot of difference’.  The Tribunal asked what was the catalyst that caused her to stop seeing Mr Anderson and Mrs Sincock said it was the similarity of the myotherapy with the treatment she was receiving from

    
    

    Mr Kewish, and she decided to press on with physiotherapy but not with the myotherapy.

19. In terms of the benefits she gains from physiotherapy treatment, Mrs Sincock told the Tribunal that Mr Kewish works through her neck with a soft tissue massage and manipulation.  She said he sometimes re-aligns her pelvis which helps with sciatic pain and she feels she can move more freely after a visit.

20. Dr Denis King, consultant orthopaedic surgeon, examined Mrs Sincock on 10 May 1999 on behalf of Comcare.  His report of 18 May 1999 was before the Tribunal.  Dr King recorded the Applicant’s weight at that time as 65 kilograms.  Mr Kelman’s report of

    
    

    30 December 2016 recorded a weight of 92 kilograms.  Mrs Sincock said she had embarked on a weight loss programme and that regard should be had to the fact that she was 44 when she saw Dr King and had since been through menopause.

    Evidence of Mr Iain Kelman

21. The Tribunal had before it a report prepared by Mr Kelman for the Respondent after he saw Mrs Sincock on 12 December 2016.  Mr Kelman summarised the motor vehicle crash and the injuries sustained from information given to him by the Applicant.  In response to specific questions his report states:

    Does Ms Sincock presently suffer from any physical condition (or conditions)?  If so, please provide a diagnosis of that condition/those conditions.

    .  Cervical spine – spondylosis without neural impingement.

    .  Thoracic spine – soft tissue musculoligamentous injury interscapular region.

    .  Right shoulder – no pathology detected. (Typographical error corrected in oral evidence.)

    .  Right knee – osteoarthritis patellofemoral and medial compartment.

    To what condition or conditions do you attribute any current symptoms Ms Sincock may be experiencing?

    I consider that she has constitutional degenerative changes in the cervical spine and thoracic spine.  Her knee condition is of a degenerative nature.

    Does Ms Sincock continues [sic] to suffer from her accepted conditions of whiplash injury to her neck and upper back and strain to right knee sustained as a result of a motor vehicle accident while she was at work on 6 June 1996?  If so which of these condition/s does she still suffer from?

    I consider that the accepted conditions of whiplash injury to her neck and upper back and a strain of the right knee which she sustained as a result of a motor vehicle accident on 6 June 1996 are now spent and have no direct bearing on her current condition.

    Her present conditions are as a result of constitutional degenerative change in her neck and thoracic spine as well as degenerative changes aggravated by sport in her right knee.

22. In his evidence, Mr Kelman said he had arrived at his view that Mrs Sincock’s pain was owing to constitutional degenerative change in her cervical and thoracic spine based on her history, clinical examination and a review of previous medical reports.

23. He said that 20 years after the car accident showed an Applicant who was 20 years older with satisfactory movement of the neck, shoulder and back. He therefore drew the conclusion that at the time of the accident Mrs Sincock would have had pain and would have recovered from this pain in the short to medium term, but the pain had subsequently recurred because of degenerative disease of the spine.  Mr Kelman said there was no specific pathology in Mrs Sincock’s shoulder and therefore the radicular pain in her shoulder was linked to her neck.

24. Mr Kelman was referred to an assessment by Ms Kerryn Edmonds, occupational therapist, dated 24 July 1996.  In that report Ms Edmonds stated:

    Ms Sincock may benefit from returning to physiotherapy for approx. another 2 sessions to settle ongoing symptoms and then attend a remedial masseur for approx. 5 sessions to resolve residual pain.

25. Mr Kelman said it was his view that what Ms Edmonds was suggesting was reasonable, so close to the time of the injury.

26. Ms Lucas asked Mr Kelman why it was reasonable for Ms Edmonds to recommend that Mrs Sincock only have a small number of further sessions. He responded that the nature of the compensable injury was a soft tissue sprain of the cervical and thoracic spine and that such sprains recover in three months at the most and often in a shorter time period.

27. 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.

28. 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.

29. 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.

30. 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

31. 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.

32. 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.

33. 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

34. 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.

35. The Respondent submitted that if the Tribunal were to determine that the physiotherapy or myotherapy treatment was either not in relation to the compensable injury or not reasonable treatment, then the reviewable decision should be affirmed.

36. Ms Lucas said that Mrs Sincock’s own evidence was that she had ceased myotherapy treatment because she derives little benefit from it.

37. In regard to the differing medical opinions, the Respondent said that the Applicant did not call any medical witnesses and so therefore the opinion of Mr Kelman was not contested by any other medical specialist.

38. 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

39. 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.

40. 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.

41. 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.

42. 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.

1. 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.

2. 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.

3. In terms of Mr Xenos’ opinion referred to above, it is very tentative and predates the consistent MRI and other evidence of the degenerative spinal disease.  The Tribunal does not give his conclusion that the spondylosis is ‘probably’ linked to the car crash strong weight.

4. The Tribunal accepts the frankness of the Applicant in her evidence about her right knee injury and the historic sporting injury which had originally caused her problems with it, and her evidence of arthritis in that knee, and that the problems with that knee linked to the motor vehicle accident resolved relatively swiftly, as Dr King reports.

5. The Tribunal also finds that Mrs Sincock presented to the Tribunal as an honest and open witness in regard to describing her work and home life and the impact of her medical conditions on that.  However, the Tribunal is persuaded by the evidence of Mr Kelman that the trauma caused by the car accident, which led to the accepted condition, was soft tissue in nature and would have resolved in a relatively short period, at most to be measured in some months, thereafter.  Even if the Tribunal were to accept Dr King’s conclusions that there was some causative link with the accident some three years later in 1999, it stretches the limits of plausibility for this link to still be in existence in 2016. This is especially so with the temporal evidence - the x-rays performed by Mr Booth and the 2017 MRI which shows the severe degenerative disease in Mrs Sincock’s cervical spine was well entrenched.

6. Section 16(1) of the SRC Act provides:

   (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.

   (Emphasis added.)

7. All the more recent medical evidence acknowledges that Mrs Sincock is experiencing problems with her back and knee but points away from it being related to a car accident in 1996 and strongly towards it being related to degenerative spinal disease.  Mrs Sincock herself also added into the mix sciatica and carpal tunnel syndrome, which she agreed were contributing problems she has unrelated to the car accident.

8. Ms Edmonds reported in 1996 that Mrs Sincock’s neck and shoulder pain had “fully resolved”.  Dr Sillcock in 1997 reported (as apparently told to her by the Applicant) that

   
   

   x-rays showed C5-6 degeneration, tendon abnormality and nerve impingement of her shoulders.  In 1999 Dr King referred to degeneration, albeit he described it as, at that stage, mild.

9. Professor Horne’s October 2000 letter refers to a “relatively severe bony foraminal stenosis at the left C6/7 and similarly at 5/6”.  The Applicant submitted that the report of her treating general practitioner, Dr Merigan, supported the link between the motor vehicle accident and her later back problems.  Dr Merigan in his report dated 26 August 2015 refers to the motor vehicle accident and the whiplash injury and then goes on to say that Mrs Sincock has a “chronic neck and back injury with associated restricted range of movement in the neck, back, shoulders etc.” However, he does not explicitly link the two.  If I accept that is his intention to make that link, Dr Merigan still does not refer to the degenerative spinal disease which was already evident, as reported by Dr King six years earlier, and what contribution it makes.

10. The Tribunal notes that Mrs Sincock has forged a successful career since leaving Commonwealth employment and that, in spite of her clearly diagnosed degenerative spinal condition and certain other conditions, on her evidence these do not have a marked effect on her daily activities. 

11. The Tribunal concludes that, while Mrs Sincock may benefit from continuing physiotherapy treatment, such treatment is no longer obtained in relation to the compensable injury, as is a requirement of section 16. The Respondent therefore has no liability to pay it. Having made this finding that the physiotherapy treatment is not obtained in relation to the accepted injury, it is not necessary for the Tribunal to go on to consider the reasonableness of the treatment in the circumstances. However, if it did, the Tribunal’s remarks above in Popovic would be apposite; there was no evidence that there was an ‘aim’ or an end point in the physiotherapy plan.

12. After the hearing, parties made submissions about a Comcare letter dated 19 December 2017.  This letter is not relevant to the decisions under review because it relates to general practitioner reviews and related pharmaceuticals.  The Respondent confirmed to the Tribunal that it had accepted liability for general practitioner consultations up to

    
    

    12 September 2017 consistent with the terms of this letter.  The decisions before the Tribunal relate to compensation for physiotherapy treatment and myotherapy treatment; the part of the determinations relating to general practitioner treatment and myotherapy treatment in the period 11 February 2016 to 2 March 2016 was decided to the benefit of Mrs Sincock and neither the Applicant nor the Respondent sought that the Tribunal should disturb this part of those determinations.

    DECISION

13. The reviewable decision made by the delegate of the Respondent on 1 April 2016 that the Applicant is not entitled to compensation for physiotherapy treatment and that the Applicant 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 SRC Act in relation to her accepted injury is affirmed.

14. The reviewable decision made by the delegate of the Respondent on 26 May 2016 that the Applicant is not entitled to compensation for myotherapy treatment pursuant to section 16 of the SRC Act is affirmed.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 12 June 2018

Date(s) of hearing:	26 and 27 February 2018
Date final submissions received:	9 March 2018
Applicant:	In person
Counsel for the Respondent:	Ms Julia Lucas
Solicitors for the Respondent:	Ms Laura Deschamps Ferrari