Smith and Comcare (Compensation)

Case [2018] AATA 2901

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 80

Secondary 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

  1. Ms Catherine Smith is a former senior Commonwealth public servant who now works as a consultant. She is 56 years of age.

  2. 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.

  3. 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.

  4. 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…

Continue reading Smith and Comcare (Compensation)

Sign in free to access the full text

Details
AGLC
Smith and Comcare (Compensation) [2018] AATA 2901
Case
[2018] AATA 2901
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Smith against decisions made by Comcare regarding the reasonableness of physiotherapy and massage therapy treatments. The dispute centred on whether these ongoing treatments, which Ms Smith had been receiving for approximately 29 years, were reasonable to obtain in the circumstances under section 16 of the relevant Act. The case was heard by Deputy President Gary Humphries P.

The legal issues before the Tribunal were whether Ms Smith had reasonably required physiotherapy and massage therapy from specific dates, and if so, whether Comcare was liable to pay compensation for these treatments under section 16. Comcare contended that long-term treatment without substantial improvement or cure could not be considered reasonable and that Ms Smith had become dependent on the treatment, hindering her ability to self-manage. The parties agreed that Ms Smith had suffered an injury and that physiotherapy and massage fell within the definition of medical treatment related to that injury, leaving the reasonableness of the treatment as the sole point of contention.

The Tribunal considered that the determination of reasonableness under section 16 involved a cost-benefit analysis, weighing the cost of treatment against the benefits conferred, and appraising the specific circumstances of the injured worker. While acknowledging the general principle that long-term passive treatment is often not considered reasonable, the Tribunal found Ms Smith's circumstances to be an exception. The evidence indicated that the physiotherapy and massage treatments, though passive and long-term, had been conspicuously effective in facilitating her continued participation in the workforce at a modest cost. The Tribunal concluded that treatments achieving the Act's objectives, such as the rehabilitation of an injured worker, should be given a premium.

Consequently, the Tribunal set aside Comcare's reviewable decisions and determined that Ms Smith was entitled to compensation for ongoing physiotherapy and massage therapy. The Tribunal also directed that Comcare pay Ms Smith's costs of the proceedings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.