Smith and Comcare (Compensation) - [2017] AATA 1006

Smith and Comcare (Compensation) [2017] AATA 1006 (30 June 2017)
Division:GENERAL DIVISION
File Number(s): 2016/0074
Re:Gordon Smith
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries
Senior Member Linda Kirk

Date:30 June 2017
Place:Canberra

The decision under review is affirmed.
........................[sgd]................................................
Deputy President Gary Humphries
Catchwords
WORKERS COMPENSATION – whether ‘medical treatment’ under relevant provision – whether medical treatment in relation to the accepted condition – whether ongoing medical treatment reasonable – car accident in course of employment – neck and spine conditions – physiotherapy as treatment for compensable conditions – ten years of continual treatment since compensable condition arose – long-term effect of physiotherapy treatment limited – treatment not cured or significantly reduced symptoms – cost to benefit ratio of treatment not reasonable in circumstances - treatment obtained not in relation to injury - treatment not reasonable to continue to obtain.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Alamos and Comcare [2014] AATA 629
Bayani and Australian Postal Corporation [2015] AATA 342
Comcare v Holt [2007] FCA 405
Comcare Australia v Rope (2004) 135 FCR 443
Durham and Comcare [2014] AATA 753
Secondary Materials
Clinical Framework of the Delivery of Health Services
REASONS FOR DECISION
Deputy President Gary Humphries
Senior Member Linda Kirk
30 June 2017

On 27 July 2005, in the course of his employment with the Australian Federal Police, Mr Gordon Smith was involved in a motor vehicle accident in Kingston, ACT. Another vehicle failed to give way to him, and his vehicle T-boned it. Soon afterwards he experienced stiffness in his right shoulder, reduced movement of his neck and pain in his lumbar region. He lodged an application for workers compensation, which was accepted. The accepted injury was described as neck sprain, lumbosacral (joint) (ligament) strain and specified sites of sacroiliac region sprain, with the date of injury being the date of the car accident.
Mr Smith received a variety of treatments for back, shoulder and neck pain over the ensuing decade. Those treatments included chiropracty, massage, a pain management course, a gym membership and – at varying intervals but throughout this period – physiotherapy. These treatments were funded by Comcare. However, one day after the 10^th anniversary of the car accident, Comcare wrote to advise him that it intended to determine that he had no present entitlement to compensation for medical expenses under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
Between 27 July 2005 (the date of the accident) and 17 September 2015 (the date present liability was denied), Mr Smith received compensation from Comcare for 231 physiotherapy sessions as well as massage treatment, a pain management course and a gym membership.
On 17 September 2015 Comcare made a determination to that effect. Mr Smith sought reconsideration of the decision, but on 10 November 2015 it was affirmed by a review officer, although the officer expressed his decision purely in terms of access to physiotherapy treatment. The Tribunal regards the proper construction…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Smith and Comcare (Compensation)

Details

AGLC: Smith and Comcare (Compensation) [2017] AATA 1006
Case: [2017] AATA 1006
Decision Date: 30 June 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr Smith against a decision by Comcare regarding the reasonableness of ongoing physiotherapy treatment. The dispute centred on whether the physiotherapy Mr Smith was receiving constituted "medical treatment" in relation to his accepted compensable condition, which arose from a car accident in the course of his employment in July 2005. The case was heard by Deputy President Gary Humphries.

The primary legal issues before the Tribunal were whether the physiotherapy treatment obtained by Mr Smith from 17 September 2015 was in relation to his accepted compensable condition, and whether it was reasonable for him to continue to obtain such treatment. The Tribunal was required to assess the medical evidence to determine the cause and ongoing impact of Mr Smith's pain, and to consider the cost-benefit ratio of the proposed treatment.

The Tribunal placed significant weight on the medical evidence provided by Drs McDonald and Paul, who testified that Mr Smith's soft tissue injury from the 2005 accident had resolved and that his ongoing pain was unrelated to the accident. While Mr Smith asserted his physiotherapy was for the accident-related pain, the Tribunal found the medical experts' opinions, based on their training and expertise, to be the preferable source of evidence regarding the mechanics of his pain. The Tribunal also considered that continued reliance on manual manipulation therapy was unlikely to improve his condition or assist in self-management. Consequently, the Tribunal concluded that ongoing physiotherapy was not reasonable treatment in the circumstances, as it was not obtained in relation to the injury and did not represent a reasonable cost-benefit analysis.

The Tribunal affirmed the decision under review, finding that the claimed physiotherapy did not meet the requirements of section 16 of the relevant Act, as it was neither treatment obtained in relation to the injury nor treatment reasonable to continue to obtain.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the present case, Mr Smith contends that his reliance on physiotherapy in future will be limited to approximately every three months, or four times per year, and therefore the cost involved is not substantial. However, the medical evidence before the Tribunal, as outlined in the paragraphs above, is that Mr Smith is best advised to take steps to increase his self-management of his symptoms, including flare ups, and that continued reliance on manual manipulation therapy is not likely to either improve his condition nor assist him in the goal of complete independence in the management of his symptoms. Accordingly, the Tribunal finds that in these circumstances a cost benefit analysis supports a finding that ongoing physiotherapy treatment is not reasonable.Conclusion Accordingly, the Tribunal finds that ongoing physiotherapy does not constitute treatment that is reasonable for Mr Smith to obtain in the circumstances, pursuant to s 16(1). The Tribunal therefore agrees with the Respondent’s contentions to the effect that, for the requirements of section 16 of the Act, the claimed physiotherapy:(i)is not treatment obtained in relation to the injury; and(ii)is not treatment that is reasonable for Mr Smith to continue to obtain in the circumstances. The Tribunal therefore affirms the decision under review.

Ratio Decidendi

Legal Principle Established

The Tribunal received a report of Dr Bills, dated 8 September 2016, and the report of Dr Jain dated 25 February 2016. It also received a report from his physiotherapist, Mr Bjarne Kragh, dated 23 November 2015. All three reports asserted (or at least assumed) that Mr Smith continues to suffer pain attributable to his 2005 car accident. Mr Smith chose not to call these practitioners, or indeed any medical or allied health witnesses, apparently on the basis that the cost of doing so may have exceeded the financial benefit conferred by a favourable decision. As the evidence of the uncalled practitioners appeared to contradict that of Drs McDonald and Paul, and they were not available to be cross examined, the Tribunal attaches little weight to their opinion. Consideration The initial task before the Tribunal is to determine whether, on the balance of probabilities, the physiotherapy Mr Smith was obtaining from 17 September 2015 was treatment in relation to his accepted compensable condition. Clearly Mr Smith suffered from a condition or conditions affecting his shoulder, neck and back well prior to the car accident he suffered in the course of his employment in July 2005. He undertook a variety of treatments for shoulder, neck and back pain over the ensuing decade, but the evidence is far from clear as to whether these treatments were for the condition arising from the 2005 car accident or for other conditions. Against the background of this uncertainty, the medical evidence provided to the Tribunal during the hearing trends very strongly in one direction. Dr Paul’s evidence was that the soft tissue injury Mr Smith had sustained in July 2005 had resolved, and that episodic pain in his lumbar and cervical spine, which had become more constant, was unrelated to the accident. Dr McDonald’s evidence, though initially more guarded, came down essentially in the same way by the time of the hearing. In relation to the genesis, course and prognosis of internal injuries, a decisionmaker is particularly reliant on medical evidence. That evidence is crucial in informing the decisionmaker as to the impact of a trauma on the complex internal mechanisms of the human body, and assisting him or her to reach sound decisions relating to such matters as causation and the likely future incidence of pain and suffering. Unlike, say, the loss of a limb in a workplace accident – where an employee’s evidence of the cause of his or her injury could be regarded as equally reliable as that of doctor – the origin and development of musculoskeletal pain, particularly where more than one factor may be contending as the cause, are matters particularly within the realm of medical experts. Mr Smith told the Tribunal that he was quite sure his present use of physiotherapy was to address the pain arising from his 2005 car accident; he contended that the degree of pain has certainly increased considerably since 2005. The medical witnesses who appeared before the Tribunal took a different view. Given the training and expertise which informs the latter, the Tribunal considers them the preferable source of evidence as to the mechanics of Mr Smith’s pain.