Smith and Comcare (Compensation)
[2018] AATA 2901
•15 August 2018
Smith and Comcare (Compensation) [2018] AATA 2901 (15 August 2018)
Division:GENERAL DIVISION
File Number(s): 2016/3187; and 2016/4941
Re:Catherine Smith
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries
Date:15 August 2018
Place:Canberra
The reviewable decisions of 21 April 2016 and 16 September 2016 are set aside, and in substitution the Tribunal determines that Ms Smith is entitled under s 16 to compensation for:
a)ongoing physiotherapy treatment from 7 June 2016 at approximately 3 weekly intervals; and
b)ongoing massage therapy from 26 July 2016 at approximately 2-3 weekly intervals.
........................................................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – whether physiotherapy reasonable treatment – whether massage reasonable treatment – factors to be considered in determining this issue –reviewable decision set aside.
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4 and 16.
Cases
Alamos and Comcare [2014] AATA 629
Anand and Comcare [2016] AATA 766
Bayani and Australian Postal Corporation [2015] AATA 342
Chowdhary and Comcare [1998] AATA
Comcare Australia v Rope (2004) 135 FCR 443
Comcare v Power [2015] FCA 1502
Comcare v Watson 46 ALD 481
Jorgensen and Commonwealth (1990) 23 ALD 321
Maalouf and Australian Postal Corporation [2015] AATA 461
Pethes and Comcare [2018] AATA 483
Popovic and Comcare (2000) 64 ALD 171
Rope and Comcare [2013] AATA 280
Rope and Comcare [2018] AATA 42
Sommerville and Comcare [2016] AATA 289
Topping and Comcare [2015] AATA 525
Yeats and Comcare [2017] AATA 80Secondary Materials
Transport Accident Commission and Worksafe Victoria, 'Clinical Framework for the Delivery of Health Services' (Clinical Framework, Health Service Group, Transport Accident Commission and Worksafe Victoria, June 2012)
REASONS FOR DECISION
Deputy President Gary Humphries
15 August 2018
BACKGROUND
Ms Catherine Smith is a former senior Commonwealth public servant who now works as a consultant. She is 56 years of age.
Comcare accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for Ms Smith’s condition of occupational overuse syndrome, with a deemed date of injury of 31 August 1990. She continued to work in the public service despite her injury. She told the Tribunal that she took only one day of sick leave in relation to her accepted condition between 1990 and 2015. She said she self-managed her injury, and that physiotherapy and massage assisted her to remain in the workforce.
In September 1997 Comcare determined that physiotherapy treatment would be discontinued. Comcare’s physiotherapy consultant had advised that, given the amount of physiotherapy received, Ms Smith should now be on a self-management routine and not require regular treatment. It was suggested that she should be receiving pain management by means other than physiotherapy, with applications for further treatment to be considered if an aggravation were to occur.
In her letter to Comcare requesting reconsideration of that decision, Ms Smith said:
I have lived with this injury for many years, I have not taken time off work as a result of the injury except on one occasion as a result of too much manipulation of my neck. The only reason I have lived successfully with my injury is my self-management programme which includes physiotherapy treatment on a need basis.[1]
[1] In this decision, italicised text is generally used to indicate direct quotations.
In a reconsideration decision of 27 January 1998 Comcare reinstated liability for physiotherapy. The decision found:
…physiotherapy treatment for which the Claimant seeks reimbursement is “reasonable in the circumstances” and comes within the Act’s definition of “therapeutic treatment” and “medical treatment. (sic)
In November 2015 Ms Smith resigned from the APS and established a consultancy.
Several Clinical Panel Reviews of Ms Smith’s treatment were conducted at Comcare’s behest between April 2012 and February 2016. The last of these recommended that she be provided with a course of 5 physiotherapy sessions over 3 months to allow discussion and finalisation of treatment, with a transition to self-management. By a determination dated 22 February 2016 Comcare approved 5 sessions of physiotherapy treatment in the period 7 March 2016 to 6 June 2016, with no further treatment from 7 June 2016. On 30 March 2016 Ms Smith requested reconsideration of this determination, but it was affirmed by Comcare in a reviewable decision dated 21 April 2016. In matter 2016/3187, she now seeks merits review of that decision.
On 26 July 2016, Comcare determined that compensation was no longer payable to Ms Smith for remedial massage under s 16. She requested reconsideration on 22 August 2016, but Comcare affirmed the determination by reviewable decision dated 16 September 2016. In matter 2016/4941, she seeks merits review of that decision.
Comcare asserted that, between 1993 and 2016, Ms Smith had received:
·348 sessions of physiotherapy at a total cost of $29,935; and
·191 sessions of massage treatment at a total cost of $7,438.
Ms Smith calculated that this equated to an average of $1300 a year for physiotherapy and $338 a year for massage.
MS SMITH’S EVIDENCE
Ms Smith gave evidence to the Tribunal, on which she was cross-examined. She also tendered four statements.
She described her injury by saying she felt some level of discomfort all the time. Her symptoms varied according to a treatment cycle, but she experienced stiffness or pain in her neck, back, right shoulder, right arm and right wrist. This can be a constant throbbing pain at times. Lying down to sleep can exacerbate the pain. She told the Tribunal that activities involving fine motor skills and repetition increased her symptoms. This included typing and mouse work. She partly managed her condition with exercise and painkillers.
As part of her consultancy, Ms Smith undertakes work which is keyboard intensive. Most of this is laptop based. She estimated that she would work about eight hours a day, and 80 to 90% of that work was keyboard and mouse based. Some of the remaining part of her work day is often spent handwriting. The amount of keyboarding she was now doing was treble the amount she had done while working for the government. She also undertakes other domestic tasks that are repetitive and require fine motor skills including cleaning, food preparation and cooking. However, she told the Tribunal she is unable to do any mopping, sweeping or gardening.
Following Comcare’s decision to end her entitlement to physiotherapy and massage, Ms Smith attempted longer intervals between treatments. She now finds that physiotherapy every three weeks is most effective, and she obtains massage on an as-needed basis. Towards the end of the three week intervals between physiotherapy treatment, she said she tends to become stiff and, in some cases, nauseous. Her hand has lost a lot of its power. The treatments are like resetting the clock. To manage her condition, she walks, attends a gym and at home undertakes stretching and other exercises and uses Wii Fit, a screen-based guided exercise program. She also plays volleyball, though she noted I serve underarm.
Her evidence was that, as a consultant, she was able to earn about $2800 per day.
THE MEDICAL EVIDENCE
From 1990 to 2015, Comcare requested that Ms Smith attend 4 specialist appointments for review of her condition. At each appointment, Ms Smith discussed the treatment available for her injury. Her evidence was that, on each occasion, the specialist could not offer any other options for treatment and each advised her that the injury was permanent and that she was managing it well (her words) with the support of physiotherapy and massage.
In a report dated 7 October 1995 Dr Robert Craven, a consultant neurologist, reported that Ms Smith had consulted a physiotherapist regularly over the years, rarely having treatments less than once monthly. This consisted of laser treatment, traction and stretching exercises. She also obtained massage therapy once every three or four weeks. She was also reported to have used homely remedies with good effect, including a hot neck pack and hot showers. Dr Craven reported:
The therapeutic value of her continuing treatment is in controlling symptoms rather than any healing of damaged tissues or in any way being curative. That is, the treatment is palliative and ameliorative. The need for this therapy is diminishing and I recommend that during her time on maternity leave Ms Smith manage without any further physiotherapy or massage treatment, this matter being reconsidered if it becomes clear that caring for her infant aggravates her symptoms.
In March 2001 her then GP, Dr AJ Buchanan, reported to Comcare that physiotherapy continued to be of help in alleviating her symptoms, particularly after any repetitive tasks at work, providing relief of pain and spasm and increasing mobility of the neck and arms for up to three weeks. He recommended physiotherapy and massage therapy be provided as needed.
On 17 May 2001, a consultant rheumatologist, Dr Ken Muirden, reported on his assessment of Ms Smith. He noted in response to Comcare’s questions:
Would the claimant have still suffered similar symptoms were it not for her workplace activities?
In my opinion Ms Smith would not have suffered similar symptoms were it not for her workplace activities…
What types of treatment if any, does she require and for how long?
Ms Smith attends a physiotherapist for treatment every three weeks and this I consider is appropriate. She takes a few analgesic tablets from time to time, but is on no other regular treatments. These treatments will need to continue for as long as she continues in her current work environment.
Dr Muirden opined:
The condition is not really due to an injury but relates to a pain syndrome and as indicated above, although the condition has improved, the condition is unlikely to cease totally while she remains in this workplace environment.
Mr Tim Maher, her physiotherapist, reported on 2 November 2004:
Catherine is basically self-managing her condition. She has an exercise programme, postural work and stretches to reduce pain and dysfunction. She attends treatment on a three weekly interval to monitor progress and perform some intervention in order to sustain and improve her condition.
Dr Nina Johnson became her GP in 2005. In a report of 24 March 2006 she commented:
Her symptoms are controlled with the help of heat packs, anti-inflammatory medication, massage fortnightly, and physiotherapy (traction & laser) 3 weekly. These treatments allow her to cope with her symptoms and continue to work. They cannot be regarded as curative, but are therapeutic in the sense that without these treatments it is likely that Catherine would have increased pain which would then be managed with reduced working hours and a course of physiotherapy & massage. A home base treatment program could not offer these benefits.
On 25 October 2006 Mr Maher reported that his treatment continued at 3-weekly intervals, and that Ms Smith was doing a programme of exercises, including deep neck flexors, stabilisation of scapulae, mobilisation of the mid thoracic spine and stretches for upper limb muscles. He advised of a need for continuing physiotherapy, an opinion he renewed on 19 March 2009.
On 22 December 2009 Dr Johnson opined that Ms Smith would need massage and physiotherapy for as long as she worked using computers. She added:
If pain was greater, she would require time off work to rest and more intensive physiotherapy.
On 18 April 2012, Comcare arranged for a Clinical Panel Review of Ms Smith’s need for ongoing physiotherapy treatment. Its report described her as a coper, and observed that She pushes herself in the workplace. The panel noted that:
(a)There appeared to be no plan to try to progress her to self-management of her condition;
(b)Treatment did not appear to be progressive in nature;
(c)On discussion with Mr Maher, it was noted Ms Smith is high-achieving and hard-working. She was playing sport and attending a gym independently, and thus contributing to self-management.
(d)Mr Maher was happy to engage in discussions with her to trial reduced treatment and a move towards using treatment for pain episodes, in preference to 3-weekly appointments.
(e)Mr Maher suggests that there will be some resistance from [Ms Smith] towards any change and that a gently/gradual approach might work best.
(f)She had become dependent on 3-weekly physiotherapy sessions. She believed she required, and was entitled to the treatment. She had not trialled a reduction of treatment frequency. The panel’s concern was:
The dependence on treatment and the longevity of this course, 22 years after the onset of symptoms related to occupational overuse.
Ms Smith’s evidence was that she had never held a discussion with Mr Maher about a move towards using treatment only for pain episodes, nor was she aware of Mr Maher providing such advice for Dr Johnson. She said that by this time she had set appointment dates around need, not around dependency. She had confirmed with both Dr Johnson and Mr Maher that her treatment plan was appropriate.
Dr Peter Wilkins, an occupational physician, reported on 6 August 2012:
Prognosis is for indefinite persistence of her present symptoms.
In response to a question from Comcare he said:
In your opinion, is there sufficient evidence to support ongoing Physiotherapy and Massage treatment (every 2 weeks) given the nature of the condition, date of injury and number of treatments received to date?
I discussed this issue with Ms Smith. I note that, with the physiotherapy and massage treatments, she is able to remain at work fulltime. I also note that she has a great deal of accumulated sick leave. From a purely pragmatic point of view, considering the relative cost benefits of her effective employment and absences from the workplace versus expenses on physiotherapy and massage, it appears to be preferable that she should be supplied with these services and thus remain at work.
On 16 September 2014 Ms Smith was advised that Comcare had reviewed her physiotherapy treatment in line with the Clinical Framework for the Delivery of Health Services (the Clinical Framework). A Clinical Panel physiotherapist had discussed her treatment with Mr Maher and a revised treatment plan developed, consisting of 10 physiotherapy sessions from October 2014 to June 2015. She was advised that Mr Maher had agreed with Comcare’s Clinical Panel that she may not require physiotherapy beyond 30 June 2015 and she may be discharged from physiotherapy treatment at that time.
The Clinical Panel’s assessment concluded:
(a)Ms Smith had persistent neck, mid back and arm symptoms.
(b)She had been attending regular, passive physiotherapy treatment over a long prolonged period.
(c)She did not appear to be improving or worsening overall, however Mr Maher considered that without treatment she would not be able to fully self manage and that the cumulative effects of increased symptoms will eventually result in time off work being required.
(d)At that stage of recovery, the ongoing provision of passive treatment was not consistent with elements of the Clinical Framework, because the treatment:
i.is not resulting in sustainable improvement;
ii.did not accord with a biopsychosocial approach to the management of pain;
iii.did not empower her to take a greater role in self-management; and
iv.is not evidence based.
(e)Access to episodic treatment at a reduced frequency may be a reasonable consideration.
Ms Smith was assessed by a rheumatologist, Dr Phillip Vecchio, on 24 August 2015. In his report he diagnosed Right Upper Limb Regional Pain Syndrome, which had resulted from excessive workload in the early 1990s. He responded to specific questions from Comcare:
…details of any further medical treatment which may be provided to Ms Smith in relation to her condition
In my opinion, the treatments have been effective and continue to sustain Ms Smith in the fulltime workforce…
In your opinion, was all medical treatment reasonable for Ms Smith to obtain in the circumstances?…
This is reasonable treatment…
In your view, how long will Ms Smith need her current treatment?
Indefinitely, whilst at work.
A Clinical Panel Review was again conducted. In a report dated 15 February 2016 it was noted:
(a)Ms Smith still has persistent symptoms and that there is not much overall change;
(b)Mr Maher had advised that she will fight a plan that impacts on her treatment;
(c)It was agreed to provide a course of 5 physiotherapy sessions over 3 months to allow discussion and finalisation of treatment, with a transition to self-management;
(d)Mr Maher discussed the above proposal with Ms Smith, and then confirmed with the Clinical Panel that the plan sounded great.
The report also noted, erroneously, that she had now left the workforce. The report makes no reference to any discussions with Ms Smith’s treating GP, Dr Johnson. Ms Smith’s evidence was that, in discussions with Mr Maher about the panel’s proposal, consideration would be given to extending the time between treatments.
On 9 May 2016, Comcare accepted massage treatment for Ms Smith up until 9 June 2016. On 16 May 2016, Dr Johnson provided a report confirming her previous view that she benefited from massage therapy, noting that it reduced muscle tension and pain. Describing the therapeutic benefits of massage as of a temporary nature, Dr Johnson nonetheless considered massage to be an important component of Ms Smith’s pain management.
Ms Smith’s massage therapist, Ms Sveva Tarsia, authored a report dated 6 June 2016. In it she said that massage therapy was a maintenance treatment for chronic pain through positive effects on soft tissues. She noted that the pain relief benefits of this treatment to Ms Smith lasted for an average of two weeks, a period which had increased since October 2015. On this basis she opined that the period could be extended to 3 weeks.
Ms Smith was assessed by Dr Sandra McBurnie on 18 October 2016 at Comcare’s request. In a report dated 21 October 2016 Dr McBurnie notes:
The prognosis is guarded. She experiences an increase in pain with tasks associated with work, for example, working on a computer for sustained periods of time.
Dr McBurnie obtained a history that Ms Smith had physiotherapy at monthly intervals, after which some relief was obtained for a week or two, and then gradually increased again. If Ms Smith did not have physiotherapy after about four weeks, her symptoms increased to a point where she felt nauseated and ill with pain. She was also obtaining massage treatment, every three to four weeks, usually in a week when she is not having physiotherapy.
Commenting in her 21 October 2016 report on the reasonableness of continued massage and physiotherapy treatment, Dr McBurnie said:
In my opinion active treatment/exercise that she could continue with on a self-directed basis is my recommendation…
6 sessions to confirm Ms Smith has exercises that she can continue to do is suggested…
It will provide Ms Smith with the tools to actively manage her symptoms…
There is little good quality evidence supporting the long term use of passive physiotherapy or massage therapy for chronic pain…
Given the evidence base, [physiotherapy/massage] is not regarded as reasonable long term treatment.
A supplementary report of Dr McBurnie dated 19 June 2017 was also tendered. In this report she commented on the extent to which Ms Smith’s treatment satisfied the criteria in the Clinical Framework. With respect to Principal 4 – Implement goals focused on optimising function, participation and return to work – Dr McBurnie wrote
In Ms Smith’s case there does not appear to have been any issues with setting goals aimed at return to work and she is currently working.
Later in the report, however, she wrote that the treatment does not sufficiently satisfy Principle 4.
Dr McBurnie gave live evidence to the Tribunal. She commented that:
…the claim should be managed by the person themselves doing things that they can do to reduce the pain without having to go regularly to an external or third person to get treatment…
She nominated a series of stretches and exercises as meeting this description. She said that it was uncommon for passive treatment such as physiotherapy and massage to extend over a period of 29 years. Treatment of this duration couldn’t be regarded as effective treatment unless it made a substantial difference to the progress of the condition.
Dr McBurnie said that she thought Ms Smith had become reliant on the treatment. She was asked about the concept of pacing in the Clinical Framework; she says this is a reference to managing tasks so as to take breaks before the tasks begin to cause pain. She said this avoids the boom and bust cycle where you keep going at something until symptoms become excruciating and you need to stop. She suggested that Ms Smith may be in such a cycle.
Mr Maher provided a report to Dr Johnson on 15 December 2016 in which he noted:
The intervention improves her range of motion with less pain and stiffness in all directions and improved range of motion in rotation and side flexion…
In the light of the current research evidence Ms Smith’s case should be handled with a self management programme and an active exercise routine. The evidence would suggest that manual therapy interventions are not appropriate for such a patient. I concur with the evidence however I am of the view that Ms Smith does respond to additional treatment.
As a clinician, I would assess the condition of the patient according to their particular circumstances. Ms Smith has been managed using the most current evidence. She has been treated with manual therapy and exercise from the beginning of her physiotherapeutic intervention. She has a self management programme which includes an exercise routine, work on her posture, work station exercises and a general fitness routine.
Mr Maher noted that Ms Smith’s function was maintained and enhanced by the physiotherapy treatment she received.
Live evidence was also given by Mr Maher. He testified that he and the other physiotherapists at his practice had encouraged Ms Smith to do an active exercise program… and maintain a level of fitness. She was very compliant with the active part of her rehab. The therapy he administered allowed her to continue full-time employment, he said. Under cross-examination, he said that Ms Smith had asked him if there was anything else she could do in relation to the management of her pain, and that they had discussed exercise and general fitness from early days.
Mr Maher was asked about a conversation with the physiotherapist from the Clinical Review Panel.[2] He conceded that he had agreed with the physiotherapist’s suggestion that Ms Smith should receive a tapered course of physiotherapy leading to complete self-management. He said:
I was happy to go ahead and try this plan. But then, when I spoke to Ms Smith about it, she felt that it was not reasonable…
He later added:
I suppose I agreed to the plan, because I didn’t think there was any other alternative from Comcare’s point of view.
When he put the plan to Ms Smith:
… she raised the fact that her pain levels would increase and her function would decrease, if she didn’t have some sort of intervention and I was willing to support her on that.
[2] It was referred to in questioning as the panel review in 2015, but it appears from the context that in fact it was the review in 2016 that was being referred to.
He denied the suggestion that Ms Smith was reliant on physiotherapy, observing that:
…she has had no time off. I mean, really, she has been quite extraordinary with the level of pain that she has had, to be able to stay at work and do what she does.
Occupational physician Dr Warren Harrex provided a report dated 13 April 2017. At the hearing, objection was taken to this report by Comcare on the basis that it failed to comply with the Tribunal’s guideline for giving expert and opinion evidence, employed advocacy rather than opinion, used emotive language and made inflammatory comments about the role of Comcare in dealing with Ms Smith’s claim. The Tribunal partly accepted these concerns and admitted only the first 3½ pages of the report into evidence.
Dr Harrex also gave live evidence at the hearing. He told the Tribunal that continuing physiotherapy once every three weeks is not unreasonable treatment of Ms Smith’s condition, and that massage once a month may be appropriate. He added I don’t think it’s harmful. He said that he considered the treatment conformed with the Clinical Framework, based on his application of a particular set of criteria.
Under cross-examination, he noted that the set of criteria he used was of his own creation, and had not been peer-reviewed. He also conceded that he was unaware when he wrote his report that Ms Smith had been having physiotherapy for some 29 years.
Dr Johnson provided an open letter dated 12 January 2017, in which she stated:
I understand that there is no scientific evidence that massage, a passive therapy, is proven to assist chronic pain. However, in Ms Smith’s case, she has shown that without regular massage she requires more analgesics (which can give her stomach cramps and loose bowels).
I understand that there is also a lack of scientific evidence that physiotherapy has ongoing benefit in treatment of chronic pain. However, I am in agreement with physiotherapist Tim Maher, that in Ms Smith’s case there has been evidence that his regular treatments, in association with Ms Smith’s home program of exercises, improves her range of movement and reduces her pain…
The absence of scientific trials proving the efficacy of such treatments should be balanced against the reasonable evidence that in Ms Smith’s case she has functioned at a high level for years only WITH the assistance of these treatments.
Dr Johnson also gave live evidence to the Tribunal. She said that Ms Smith had actively engaged in self-management, and had followed a home exercise program with stretching and strengthening, and had done all that she can to help improve her pain levels, but found over the years that this regime of the therapy is one that helps her remain working and her pain level is manageable. She also said that she had never been contacted by a rehabilitation provider in relation to Ms Smith. Under cross-examination she said that:
… in the time that I’ve been seeing Ms Smith… there was no clear evidence that there would be useful alternative treatment to the ones that she was already following, which were being effective.
Dr Johnson denied that, after 29 years, Ms Smith’s body has become dependent upon physiotherapy or massage.
THE RELEVANT LEGISLATION
An injured employee’s entitlement to medical treatment is determined by s 16 of the Act:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 4(1) defines medical treatment to mean, in part:
(a)…
(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner…
(c)…
(d)therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be…
Section 4(1) also defines therapeutic treatment as including an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
ISSUES
Comcare succinctly summarised the issues before the Tribunal as:
(a)Whether Ms Smith has reasonably required physiotherapy in the period from 7 June 2016 to date, in relation to the Injury?
(b)Whether Ms Smith has reasonably required massage therapy in the period from 26 July 2016 to date, in relation to the Injury?
(c)If so, whether Comcare is liable to pay compensation to Ms Smith in respect of physiotherapy and/or massage therapy reasonably required as a result of the Injury, under s 16 of the Act?
CONSIDERATION
The terms of s 16 require the Tribunal to consider whether the treatment Ms Smith receives in the form of physiotherapy and massage are reasonable for her to obtain in the circumstances. Comcare maintains that treatment of extended duration (in the case of physiotherapy, for 29 years) without substantially affecting or improving her compensable condition cannot be considered reasonable in this sense. It further maintains that she has become dependent on the treatment, and that this dependence prevents her from graduating to effective self-management of the compensable condition.
In terms of the general requirements of s 16, the parties agree that Ms Smith has suffered an injury within the meaning of the section, that physiotherapy and massage falls within the definition of medical treatment, and that physiotherapy and massage have been obtained in relation to that injury. The sole question in contention before the Tribunal is whether the treatment is reasonable… to obtain in the circumstances. As a practical matter, it is up to Comcare to persuade the Tribunal that treatment to which Ms Smith had previously been considered entitled is no longer reasonable to obtain; if it cannot do so on the balance of probabilities, the appropriate outcome is to set aside the reviewable decisions: Comcare v Power [2015] FCA 1502 at [70].
Various criteria have been postulated in previous decisions of courts and the Tribunal as tests of what reasonable… in the circumstances means. Criteria are also set out in the Clinical Framework. However, no one criterion is critical or definitive. The exercise in determining what is reasonable involves appraising the circumstances of a particular injured worker, including their compensable injury, the nature and cost of the treatment claimed and the alternatives, if any, to such treatment. The terms of s 16 import a notion of cost/benefit analysis in assessing how reasonable particular treatment might be regarded in those circumstances. This involves weighing the cost of obtaining the treatment against the benefits conferred. In ComcareAustralia v Rope (2004) 135 FCR 443 Mrs Rope claimed the cost of travel from Canberra to Townsville to obtain a unique form of psychological treatment, one not available where she lived. Stone J commented at [17]:
I accept, however, that the reference in s 16(1) to treatment being “reasonable to obtain in the circumstances” is a clear indication that, in this case, the Tribunal was required to engage in a costs/benefit analysis in relation to PNI treatment. The Tribunal needed, among other things, to weigh the benefit of PNI treatment against the cost of obtaining it (given that the treatment was available only in Townsville), taking into account any other treatment available to Mrs Rope. I am not, however, convinced that the Tribunal neglected to do this… .
The Tribunal had found that the cost of such travel was reasonable vis-a-vis the benefit it conferred on the applicant, and the Federal Court did not disturb that finding of fact.
Reasonableness is thus not measured in absolute or empirical terms, but in terms of the circumstances facing the worker. However, as Gray J observed in Jorgensen and Commonwealth (1990) 23 ALD 321 at [12] in relation to s 16(1):
The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of the applicant for compensation.
Ms Smith contends that the two forms of treatment she has received address different aspects of her injury and do not overlap. The massage treatment is currently directed at reducing muscle tension and pain; the physiotherapy treatment provides her with a greater range of movement, with less pain and stiffness. Each supports self-management of her injury, she says. All the doctors who have examined her since 1995 have determined that a cure for her occupational overuse condition is unlikely, while a majority of them observe that the treatment has enabled her to function effectively and to a high standard in the workplace. She also contends that the treatment has prevented a deterioration in her condition.
Assessing the medical evidence
There is a variety of diagnoses in the medical evidence as to Ms Smith’s condition. For no better reason than that it is the most recent diagnosis by a specialist, I adopt that of Dr Vecchio – a Right Upper Limb Regional Pain Syndrome.
Ms Smith contends that it is reasonable in the circumstances for her to obtain massage therapy and physiotherapy for the ongoing treatment of her injury. She cites the opinions of Drs Johnson, Muirden, Wilkins, Vecchio and Harrex as supportive of the proposition that the treatment she obtains is reasonable in the circumstances.
Putting to one side the evidence of Drs Harrex and McBurnie for the moment, the survey of the medical and allied health evidence does lend much weight to Ms Smith’s contention. The trend of this evidence was that, regardless of the scientific basis for this approach in the medical literature, physiotherapy and massage appeared to be treatments to which she responds well, and which assist her to remain in the workforce. The following extracts from clinical reports are representative in this respect of the views of the practitioner quoted:
·Dr T R Singh, GP (1994): Treatment with physiotherapy and remedial massage therapy is of major therapeutic value and will be required on a 2-4 weekly basis long term.
·Dr Robert Craven, consultant neurologist (1995): The therapeutic value of her continuing treatment is in controlling symptoms rather than promoting any healing of damaged tissues or in any way being curative. That is, the treatment is palliative or ameliorative. (However, he also thought at that time that the need for this therapy is diminishing…)
·Dr Kenneth Muirden, consultant rheumatologist (2001): Ms Smith attends a physiotherapist for treatment every three weeks and this I consider is appropriate… These treatments will need to continue for as long as she continues to work on her current environment.
·Mr Tim Maher, massage therapist (2004): I believe that continuation of [manual massage therapy and some electrotherapy] will assist Catherine to achieve her goal stay at work on her present capacity.
·Dr Peter Wilkins, consultant occupational physician (2012): …with the physiotherapy and massage treatments, she is able to remain at work full-time… From a purely pragmatic point of view, considering the relative cost benefits of her effective employment and absences from the workplace versus expenses on physiotherapy and massage, it appears to be preferable that she should be supplied with these services and thus remain at work.
·Dr Phillip Vecchio, consultant rheumatologist (2015): In my opinion, the treatments have been effective and continue to sustain Ms Smith in the full-time workforce… This is reasonable treatment.
·Ms Sveva Tarsia, remedial massage therapist (2016): Massage therapy is, in this case, a maintenance treatment for pain management through its positive effects on soft tissues.
·Dr Nina Johnson, GP (2016): The therapeutic benefit of Ms Smith’s treatment has been to enable her to manage her chronic pain and continue working full-time… I can thus not envisage when massage will no longer be required. It is an important component of Ms Smith’s pain management.
The Tribunal notes that the reports of Drs Muirden, Wilkins and Vecchio were all commissioned by Comcare.
Dr Harrex supported the use of massage and physiotherapy to manage Ms Smith’s condition. Comcare submitted that the evidence of Dr Harrex should be given little or no weight. He used his own decision-making matrix which is not peer-reviewed, and he appeared unaware that Ms Smith had used physiotherapy for 29 years, and unaware of the tasks she performed on a daily basis. Much of his report of 13 April 2017 had to be excluded from the evidence, in any case, partly because it strayed into advocacy and invective. For these reasons I regard the report, and his evidence generally, as being unsatisfactory, and I have determined that they should be given no weight in making my decision.
In one sense, the evidence of Dr McBurnie is the outlier of the medical evidence before the Tribunal. She alone considered that Ms Smith could develop tools to manage the symptoms without passive interventions. Yet, in describing Ms Smith as being reliant on physiotherapy and massage, Dr McBurnie conceded that being reliant was clinically undesirable only to the extent that alternative strategies to manage the condition were not being pursued or adopted. She suggested in general terms that Ms Smith could pursue a series of stretches and exercises to reduce her reliance on physiotherapy and massage, but did not specify precisely what those stretches and exercises might consist of, nor could she explain (understandably) why the exercise programs of this description already prescribed for her by her GP and therapists and adopted by her had not produced a lessening of reliance on passive therapies.
Dr McBurnie observed that Ms Smith appeared to operate in a boom bust cycle, working very hard and then needing to obtain passive treatment to overcome the build-up of painful symptoms that pattern had led to. Counsel for Comcare told the Tribunal this evidence confirms that her self-management regime is not reflective of an effective way to manage that chronic pain.
The Tribunal accepts the submission that Ms Smith is a very driven person, whose patterns of work probably do give rise to the need for treatment at the frequency she now claims. But Comcare must take workers as they find them: Ms Smith has a job which, by its nature, is heavily keyboard-oriented. She evidently also works long hours. The appropriateness of her entitlement to treatment under s 16 must be considered in that context. The corollary of Comcare’s argument – that she should eschew this work pattern in favour of something less intense – seems to be that Ms Smith may indeed thus reduce her need for compensable treatment under s 16, but would almost certainly accrue eligibility for incapacity payments under s 19 by doing so. This would be a strange outcome. Given her substantial earning incapacity, the cost to Comcare of s 19 compensation would appear to be much greater than s 16 compensation.
Comcare submitted that a claim under s 19 was not before the Tribunal, and the possible implications of such a claim should not be considered as part of its deliberations around entitlements under s 16. However, it is difficult to see how one can be divorced from the other. I make the observation that, on the facts presently before the Tribunal, Ms Smith would most likely comfortably fall within the provisions of s 19 should her productivity fall with the withdrawal of physiotherapy and massage, and Comcare’s likely obligation to her in that eventuality would increase commensurately. The absurdity of that proposition assists the Tribunal to reject the idea that Ms Smith should reduce her need for compensable treatment by working less hard.
The medical evidence taken as a whole strongly suggests that physiotherapy and massage alleviate the symptoms of Ms Smith’s injury and, in conjunction with other strategies, deliver functional performance, particularly in the context of her work as a consultant.
The caselaw and the Clinical Framework
A number of decisions, both of the Tribunal and the Federal Court, provide guidance as to whether particular kinds of treatment can be considered reasonable in the sense that term is used in s 16. In Popovic and Comcare (2000) 64 ALD 171 the applicant claimed for physiotherapy which provided short-term relief of his symptoms, including affording better sleep making him less depressed and less irritable on the succeeding day. The Tribunal found at [28]:
In relation to the applicant's claim for physiotherapy treatment expenses, in our view there is no role for passive physiotherapy in the applicant's current treatment regime. The physiotherapy he was having could not improve him in the long term, has limited, if any, short term benefit, and may in fact be contra-indicated. Any therapeutic benefit he received was small and short-lived. We accept that pain relief, even short-term relief or reduction in pain, can be therapeutic: Comcare v Watson (1997) 73 FCR 273 at 276 ; 46 ALD 481 at 484 ; 154 ALR 173 at 176 per Finn J. However, in this case any benefit is outweighed by the counter-productive effect of it leading the applicant to a dependent state, inhibiting his ability to learn to cope, and to embark on pain management programs to assist him with that object. Taking into account the whole of the evidence before us, we consider that in the applicant's case it was not in his best interest for passive physiotherapy modalities to have continued beyond 16 September 1997: Re Jorgenson and Commonwealth (1990) 23 ALD 321.
In Chowdhary and Comcare [1998] AATA 448 the Tribunal commented at [53], with respect to a claim for physiotherapy treatment under s 16:
In particular, there is no evidence of any plan to have the physiotherapy treatment accompanied by a course of physical exercise such that the applicant might become re-conditioned and better able to cope with pain and manage a return to work. While provision of temporary relief from pain through physiotherapy will in many circumstances qualify as medical treatment which it is reasonable for an employee to obtain, there will in some cases come a point where it is no longer reasonable unless it is part of a plan for permanent improvement in the health of the employee.
In Bayani and Australian Postal Corporation [2015] AATA 342 the Tribunal considered the principles found in the Clinical Framework. Senior Member Handley concluded at [55]:
I think because there has been no real benefit to the applicant by the prolonged physiotherapy treatment that she has undertaken, there is considerable benefit in her taking responsibility for self-management of her symptoms, consistent with the Framework. I fear that the applicant has become dependent on physiotherapists who have provided her with symptomatic relief only. For her to undertake self-management will require a refocus of responsibility and a willingness to be instructed and subsequently practice and implement appropriate strategies as determined by a competent physiotherapist.
In Alamos and Comcare [2014] AATA 629 the Tribunal rejected a claim for physiotherapy on the basis that short-term alleviation of the applicant’s symptoms, is not medically indicated and will not provide long-term improvement in [the applicant’s] condition (at [39]). In Topping and Comcare [2015] AATA 525 the Tribunal at [47] rejected Ms Topping’s claim for massage and osteopathy under s 16, finding that:
…the therapies have become a ritual, fostering a dependence on her part to them which could be inhibiting her ability to self manage her condition and foster future self-reliance.
By contrast to cases such as Topping, Alamos and Popovic, the Tribunal in Anand and Comcare [2016] AATA 766 found that weekly massage assisted the applicant with managing his pain, undertaking most daily activities and maintaining employment. Senior Member Poljak held at [34]:
I am of the view that in light of there being no chance that Dr Anand’s injury will spontaneously repair, significant improvement and management of Dr Anand’s symptoms weighs against the ongoing cost of the weekly massage treatments. The measurable improvement experienced by Dr Anand is plain on the evidence before me.Similarly in Sommerville and Comcare [2016] AATA 289 Deputy President Bean found that occasional physiotherapy and regular hydrotherapy were reasonable treatments within s 16; access to the former was supported with a view to alleviating and reducing the effects of exacerbations of her condition, including reducing pain and restoring function (at [29]). Likewise the Tribunal in Yeats and Comcare [2017] AATA 80 regarded ongoing access to physiotherapy on an as-required basis as reasonable treatment.
Senior Member Handley in Maalouf and Australian Postal Corporation [2015] AATA 461 found as follows (at [75]):
I agree with the evidence heard that physiotherapy treatment will not cure the applicant’s bilateral shoulder injuries, but physiotherapy treatment was never intended to repair or cause a reunion of each torn tendon. However, the physiotherapy treatment to date and the proposed physiotherapy treatment regime to which all the doctors gave consideration in this review, has given and will give the applicant pain relief, mobility and maintained muscle strength. Those outcomes have largely permitted him to continue at work and given him some quality of life which he probably may not have enjoyed were it not for the benefit of the physiotherapy treatment.I note in addition that Topping, Bayani, Alamos, Chowdhary and Popovic can be distinguished from the factual situation facing the Tribunal here on one significant basis; each of these decisions appear to concern a worker who was no longer in full-time employment, or employment at all, and in no case did the treatment in question purport to facilitate a return to work or an increase in hours worked. By contrast, the treatment here has facilitated full-time participation in the workforce for some 29 years.
In Rope and Comcare [2018] AATA 42 (Rope No3) I observed that, although the principles applied in some of the above cases occasionally appear to be pulling in slightly different directions, some broad observations can be distilled from them regarding what will or will not be considered reasonable treatment pursuant to s 16. Generally speaking, treatment is more likely to be considered reasonable where:
·its benefits are substantial and its cost is low;
·it is effective, i.e. achieves measurable benefits;
·it is active and promotes self-management of the compensable condition;
·it is consistent with the principles in the Framework; and
·it is of limited duration.
Conversely, treatment is less likely to be considered reasonable where:
·its benefits are insubstantial and its cost is high;
·it is passive and promotes dependence on itself; and
·it is ongoing and indeterminate.
The Clinical Framework was created as a collaboration between the Victorian Transport Accident Commission and WorkSafe Victoria. It comprises five principles for the delivery of allied health services to injured workers. Since the publication of the Framework in 2004 and its revision in 2012 it has been endorsed by WorkCover entities in Queensland, Tasmania, New South Wales, South Australia and Western Australia. It has also been endorsed by the Department of Veterans Affairs, the ACT Government, the South Australian Government and many medical associations such as the Australian Osteopathic Association, Physiotherapy Association, Psychological Society and Occupational Therapy Australia. Comcare has used the Framework to evaluate the treatment injured workers receive since the revision of the document in 2012. Whilst not binding upon the Tribunal, the Clinical Framework has nevertheless, on several occasions, been accepted by the Tribunal as providing relevant guidance in determining whether claimed treatment is reasonable to obtain in the circumstances.
The five principles enunciated by the Clinical Framework are:
1.Measure and demonstrate the effectiveness of treatment
2.Adopt a biopsychosocial approach
3.Empower the injured person to manage the injury
4.Implement goals focused on optimising function, participation and return to work
5.Base treatment on the best available research evidence
Comcare submitted that the physiotherapy and massage being sought by Ms Smith generally failed to meet these principles.
It must be conceded that Ms Smith’s treatment does not meet some of the tests in the Clinical Framework. For example, the Tribunal accepts the evidence of Dr McBurnie that there is little good quality evidence in the medical literature supporting the long term use of passive therapies such as physiotherapy or massage to treat chronic pain – and as such the therapies do not satisfy Principle 5. Ironically, however, the weight of the evidence before the Tribunal suggests that this treatment was nonetheless demonstrably effective in managing the symptoms of the condition and affording a high level of functionality. It also seems reasonably clear that the treatment empowers Ms Smith to manage her injury. Her exercise regime is the product of collaboration between herself, her doctor and her therapists and does appear to assist in making the therapy more effective and sustainable for longer periods between occasions of service.
I consider that her treatment comfortably satisfies other principles in the Clinical Framework. Most particularly, the treatment amply meets Principal 4 – Implement goals focused on optimising function, participation and return to work. Principal 4 is evidently framed with a view to assessing the effectiveness of treatment to allow an injured worker to return to work; in Ms Smith’s case, this goal was achieved from the very outset of the treatment. It’s tempting to conclude that treatment which facilitates complete functionality in the context of employment (subject to its cost being proportionate to the benefit) must constitute complete satisfaction of the objective of the Clinical Framework – and indeed of s 16. Put another way, it is difficult to see what more could be sought of any treatment than that it affordably allows an injured worker to be fully operative in the workplace.
Without impermissibly elevating this principle above the others in the Framework, it nonetheless seems absurd to set aside treatment which achieves this outcome on the basis that it does not achieve, or only partially achieves, other principles – such as fitting within a paradigm of clinical best practice.
It was somewhat mystifying to read Dr McBurnie’s opinion that Ms Smith’s treatment does not sufficiently satisfy Principle 4. The opinion seems to be contradicted by what is said elsewhere in her report – it may therefore that this comment, featuring in a list of principles not satisfied, was in fact a typographical error.
The conclusion can be comfortably reached that Ms Smith’s treatment is generally in conformity with the principles enunciated in Rope No3 and in the Clinical Framework. Its benefits are substantial, it does promote a regime of self-management and it is, above all, effective. That the treatment is passive and of extended duration are observations which do not detract from the reality that the treatment is effective.
Other submissions of Comcare
Comcare observed that the physiotherapy and massage therapy Ms Smith has received to date has not cured her condition. Nor, in Comcare’s submission, has it made any meaningful difference to the overall course Ms Smith’s condition has taken. In this respect it cited Topping and Comcare [2015] AATA 525, where the Tribunal observed at [38]:
Naturally, this equation of fact vs benefit entails consideration of how much good is actually delivered to an applicant, and it is obvious that there must be an element of objectivity in this to weigh against the cost of that good. This will be a particularly critical analysis where, as is conceded in this case, the treatment obtained and being obtained by Ms Topping has not, and probably will not, ameliorate the course of her underlying psychological condition.
This submission is misconceived. In Rope and Comcare [2013] AATA 280 Member Webb commented at [51]:
The proposition that a plan for the permanent improvement of an injury is required in order to find that a particular form of medical treatment is reasonable for an injured employee to obtain lacks merit. Medical treatment and therapeutic treatment, for the purposes of the 1988 Act, consistent with the definition of those terms in s 4(1), may include treatment to alleviate the symptoms of an injury and palliative or preventative treatments (Bashar v ComcareAustralia [2002] FCA 837 at [9]). Treatments of that kind are unlikely to appear in a plan for the permanent improvement of an injury. Some injuries cannot be permanently improved, and I do not accept that it would not be reasonable for a permanently injured employee to obtain palliative or preventative medical treatment on the basis that the treatment was not part of a plan for permanent improvement.
Similarly, in Comcare v Watson 46 ALD 481 Finn J observed at 484:
A course of treatment designed to, or aimed at, alleviating the pain caused by an injury or disease is, in my view, properly to be regarded as therapeutic treatment.
The applicant [Comcare] has submitted that a treatment can only be "therapeutic" if its object is to cure a disease or injury. Though some dictionary definitions do emphasise the "healing or curative" connotation of the words "therapy" and "therapeutic": see eg Shorter OED, 3rd Ed; the latter's use in this context encompasses the alleviation of the pain of an injury. This view is consistent with the s 4 definition of "therapeutic treatment" which includes "treatment given for the purpose of alleviating an injury": (emphasis added). The Shorter OED, for example, defines "alleviation" as "the action of lightening ... pain". That usage is an appropriate one to apply here given the s 4 definition itself. And it permits a construction which accords with the beneficial purposes of the legislation: see Thiele's case, 380- 381.
Given the uncontradicted evidence of Ms Smith that no doctor had been able to suggest treatment that was curative of her condition, that condition would seem to fall within Member Webb’s definition of an injury that cannot be permanently improved.
Comcare referred the Tribunal to Alamos and other decisions where the cost of ongoing treatment was said to be a relevant consideration to be measured against the benefit it conferred. Indeed, it is a relevant consideration, but in this case the cost of treatment must be said to be particularly modest compared with the benefit it conferred. Accepting Ms Smith’s estimate, the total annual cost of her physiotherapy and massage is less than the amount Ms Smith is able to earn in a single day.[3] It is patently cost-effective treatment.
[3] At one point during the hearing counsel for Comcare said that the fact Ms Smith could evidently afford to pay for the treatment herself was a factor the Tribunal should take into account. This argument was – quite appropriately, in my view – abandoned.
Comcare further contended that Ms Smith has become dependent upon passive therapies for short term pain relief, to the detriment of embracing a more active, self-managed exercise program. In all the circumstances, it submitted, the factors relating to maintaining Ms Smith’s functional work capacity do not outweigh the deleterious effects of dependency upon continued passive manual therapies. This contention should be rejected for two reasons.
First, the evidence does not support the view that Ms Smith has eschewed alternatives to physiotherapy and massage. On the contrary, the evidence suggests that her daily exercise regime and use of medication follows an effective self-management regime, calibrated against the advice of her GP and therapists. Both the passive therapies and the active exercise regime contribute to her continuing high-performance as a worker. She exhibits flexibility and an eagerness to adapt in that process. For example, she gave evidence that, on the advice of Ms Tarsia, her masseuse, she had extended the time between her massage treatments to 3 weekly intervals. Similar adjustments had been made to her physiotherapy treatments. Secondly, the contention fails to distinguish between reliance which forestalls or retards the deployment of alternatives and reliance of necessity, in the way, for instance, a diabetic may be reliant upon insulin. Dr McBurnie understood that distinction when she suggested that reliance on a form of treatment was only harmful if it prevented the exploration of less passive alternatives. In Ms Smith’s case, her reliance on the therapy is not such as to prevent her reaching an optimal outcome, but in fact is a reliance which delivers an optimal outcome – that is, remaining in the workforce.
Counsel for Comcare attempted to rebut the view that she remained flexible about alternatives to passive therapy by referring to the evidence of Mr Maher, her physiotherapist. Counsel maintained that the Clinical Panel had made efforts to transition Ms Smith to such a self-management program, with Mr Maher concurring with such a strategy, but Ms Smith vetoed the idea.
I consider that this submission overstates the evidence. I accept that Ms Smith would have been sensitive to decisions to take away the therapies – this was not, after all, the first occasion when Comcare had attempted this – but she was entitled to be hesitant when she had already explored alternatives and the detail of what would replace the therapy had not been spelt out. Mr Maher himself testified that he supported her in this decision.
Evidence was also given about the extent to which Ms Smith communicated with either her employer or Comcare with a view to changing her treatment regime to achieve less reliance on physiotherapy and massage. At several points during the hearing it appeared that Comcare was mounting the argument that she had failed to take up opportunities to reduce that reliance. This included an argument that she had failed to pursue a so-called Fit to Manage program, to make contact with rehabilitation providers or to consider the use of an exercise physiologist. However, in final submissions Comcare appeared to vacate this position. For the record, the Tribunal was left with the impression that both Comcare and her employer took a remarkably lackadaisical approach to the management of her workplace injury, and the evidence of any active intervention on their part to suggest alternatives to physiotherapy and massage is scant. It appears that when suggestions for better management of her condition were put to her, she took them up.
The only exceptions to this observation were several attempts by Clinical Panel Reviews to engineer less reliance on the passive treatments she was receiving. However, Ms Smith’s evidence was that the findings of the earlier reviews were never directly communicated to her or her GP, and so she had no clear basis for acting on them. The Tribunal accepts this evidence.
CONCLUSION
Medical opinion strongly tends to the view that the long term use of passive treatment cannot generally be viewed as reasonable treatment of a worker’s injury. I have come to that view myself in other cases with this factual background: see for example Topping and Pethes and Comcare [2018] AATA 483. However, there are exceptions to this generalisation.
Ms Smith’s circumstances are such an exception. The treatment for which she seeks compensation is undoubtedly passive and is of very long duration – nearly 30 years. However, in its favour is the undeniable truth that the treatment has been conspicuously effective in facilitating her participation in the workforce, and at a modest cost. In balancing the considerations set out in the relevant authorities, a premium should be placed on treatments and strategies which achieve the objectives of the Act – in this case, the rehabilitation of an injured worker.
The reviewable decisions of 21 April 2016 and 16 September 2016 will be set aside, and in their place the Tribunal determines that Ms Smith is entitled, under s 16, to compensation for:
(a)ongoing physiotherapy treatment from 7 June 2016 at approximately 3 weekly intervals; and
(b)ongoing massage therapy from 26 July 2016 at approximately 2-3 weekly interval
The Tribunal further directs that either party may, within 14 days of today, make an application with respect to the costs of these proceedings, but in the absence of such an application Comcare is to pay costs of the proceedings incurred by Ms Smith pursuant to s 67 of the Act.
I certify that the preceding 101 (one-hundred and one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
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Associate
Dated: 15 August 2018
Date(s) of hearing: 23 April 2018, 24 April 2018 and 22 June 2018 Date final submissions received: 22 June 2018 Counsel for Ms Smith: Mr Karl Pattenden Solicitors for Ms Smith: Mr W McCarthy, Bradley Allen Love Lawyers Counsel for Comcare: Ms Katrina Musgrove Solicitors for Comcare: Mr L Woolley, Sparke Helmore
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