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

1. 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.

2. 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).

3. 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.

4. 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 of this decision – the reviewable decision for which merits review is now sought – to be a decision to refuse Mr Smith entitlement under s 16 to physiotherapy treatment from 17 September 2015.

   ISSUES BEFORE THE TRIBUNAL

5. An injured employee’s entitlements to compensation for the cost of 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.

6. Plainly, there are three tests of eligibility for compensation contained in s 16:

   ·Is the treatment in question medical treatment?

   ·Is the treatment obtained in relation to the accepted condition? and

   ·Is it reasonable, in the circumstances, for the employee to obtain the treatments?

7. Section 4(1) defines medical treatment to mean, in part:

   (a)…

   (b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or

   (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; or

   …

8. The same section 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.

9. In relation to Mr Smith’s claims, the parties agreed that, since the physiotherapy had been obtained at the direction of his doctor and was provided by a registered physiotherapist, it met the definition of medical treatment in s 4(1); it was therapeutic treatment because it alleviated his pain (see Alamos and Comcare [2014] AATA 629 at [17]-[20]).

10. The parties were divided, however, on the other two tests posed by s 16, namely:

    ·Was physiotherapy from 17 September 2015 treatment obtained in relation to Mr Smith’s accepted condition? and

    ·Was physiotherapy reasonable for him to obtain, in the circumstances?

11. Having considered all the evidence, the Tribunal has decided that the answer to both questions is No.

    WAS PHYSIOTHERAPY TREATMENT OBTAINED IN RELATION TO MR SMITH’S ACCEPTED CONDITION?

    The medical evidence

12. The evidence before the Tribunal indicated that Mr Smith had consulted his GP, Dr Ross Bills, on a number of occasions in relation to shoulder, neck and back pain prior to his July 2005 car accident. On 29 July 1994 he consulted Dr Bills, who recorded in his clinical notes:

    Recently began training

    
    

    R shoulder pain on flexion/abduction 2/7

13. On 29 June 1999 he again consulted Dr Bills, who recorded:

    Neck and back pain from Friday, no respiratory symnptoimns, some nabdominal pain. Some abdominal tenderness, spasm and pain mainly left poarascapular muscles, ICE/Heat, NSAID’s, add in Zantac for 10/7, review three days, rest.

    
    
    

    Musculoligamentous Injury, off three days

    And again, on 31 May 2000, Dr Bills entered this in Mr Smith’s clinical record:

    neck pains, on and off, conmsider Cervical film,s. In snow sunday, jarred neck, same on Sunday, pains intyerspinous ligament and headaches. Vibramycin, NSAID’s, hot and copld packs, review with films

14. A radiology report of the same date notes the following in relation to Mr Smith’s cervical spine:

    There is no intervertebral disc narrowing or bony pathology and the neural foramina and facet joints appear normal

15. On 28 October 2002 Mr Smith consulted Dr Bills, who recorded:

    Impingement syndrome, right sahoulder, Brifen, relative rest, if no better X-Ray, consider –physiotherapy

16. On 28 March 2003 Dr Bills noted:

    Repeat cervical Plain films with functional views. ,

    
    

    senbsory changes into shoulders bilateral but worse on right side, some clumsiness. Massage, chriopractic etc. no benefiot. Power tone normal, no wasting. Conbsider CT

17. Dr Bills referred Mr Smith to a physiotherapist on 6 April 2004. The referral letter stated treatment was required for Back fitness and flexibility program for his back and neck, and ongoing program for use at work.

18. Dr Bills saw Mr Smith soon after his car accident on 27 July 2005. His notes make this record of that consultation:

    28/7/05 MVA yesterday, 1100 hrs, Canberra, vehicle came through give way, impact (T-boned him) 60 km/h

    Seat belt on. Injuries at time: hit shoulder (right), car rotated, sore neck and lower back pain.

    Today some stiffness shoulder (right), neck ROM reduced, back ROM normal but pain lumbar area

19. On 12 October 2005 Mr Smith saw Dr Bills, who recorded:

    Back flared up, tenderness left SI jointm sciatiuca into buttock, old films last year clear, CT if not settling. Physio, NSAId, analgesia, May be related to MVA, Phydsio fiorst and think abvout CT

    On the same day he referred Mr Smith to a physiotherapist, with this referral:

    Thanks for seeing him. Low back pain left SI area, sciatica. Note injury June 04 settled, and MVA 8/05 with some aggravation. May be related to that. No clear diagnosis at this time – musculoligamentous strain?

20. On 23 October 2005 Dr Bills wrote to Comcare advising that he had seen Mr Smith on 28 July 2005 following the accident in which he sustained mainly soft tissue injuries which did include back pain. He had seen him again on 12 October 2005 as his back pain had flared up for no good reason and on this occasion reported that his pain had been niggling since the accident. Dr Bills noted there was no history of low back problems, although Mr Smith had problems with his neck in 2003 and his mid lumbar spine in 2004. He distinguished this earlier episode of back pain as being geographically separate to his current problem, which was principally located at and around the left sacroiliac joint. He concluded that Mr Smith was suffering from a sacroiliac strain, classically resulting from as twisting injury, of the nature of the motor vehicle accident of 27/7/05.

21. Two scans were conducted on Mr Smith’s spine on 17 March 2006. The scan of his lumbar spine indicated that he had mild degenerative facet joint changes at the L5/S1 level with no other significant facet joint abnormality. There was no significant disc pathology, central canal or foraminal stenosis or evidence of nerve root impingement. The scan of his cervical spine identified that there was no significant bone, joint or disc abnormality…no central canal or foraminal stenosis…no evidence of nerve root impingement.

22. On 7 November 2006 Dr Bills referred Mr Smith to Dr Geoffrey Speldewinde, a consultant in rehabilitation, pain and musculoskeletal medicine. The referral letter stated:

    Thanks for seeing him. We have been muddling along for over twelve months now with no real progress. His degree of disability is mild. He remains at work with some restrictions. he is involved in a gym program for flexibility and strengthening...

    In this MVA he seemed primarily to have problems around the left sacroiliac joint, separate to the previous injury.

    Management since has comprised physiotherapy, analgesia, and NSAID;’s, and imaging studies which have. While symptoms subsided they continued to niggle after the accident, and he made further complaint of pain in October 2005.

23. Dr Speldewinde, following a referral, reported to Dr Bills on 1 June 2007:

    Many thanks for your referral of this 42 year old public servant with his persisting although mainly manageable right lateral angle neck pain, but more intrusive central and right-sided lumbosacral pain with stabbing aggravations which date primarily from the car accident of 2005. These have aggravated what may have been pre-existing but minor niggles in the cervical and lumbar spine, for which he generally sought quarterly chiropractic treatment over many years (car accident in 1985 or 1986)…

    I would be happy to review him again as necessary, but hopefully a program of only three months will leave him appropriately and fully self-managing these chronic complaints

24. A treatment request form dated 29 June 2007 noted that Mr Smith has received Chiropractic treatment in the past and continues to receive Physiotherapy at present, although he finds neither particularly beneficial.

25. Orthopaedic surgeon Dr William Coyle assessed Mr Smith at Comcare’s request and provided a report dated 18 July 2007. Dr Coyle found that Mr Smith:

    …sustained soft tissue or musculoligamentous strains in a motor vehicle accident at work on 27 July 2005. There is no clinical or imaging evidence to suggest he has any more serious injury but symptomatic recovery is very slow despite standard conservative treatment which provides minimal and transient relief of symptoms…

    His symptoms have failed to resolve which is surprising and it is possible that there is now a functional element involved perhaps related to emotional tension…

26. On 29 July 2010 Dr Bills referred Mr Smith to a physiotherapist. The referral letter stated:

    He sustained a left SI strain on the weekend lifting some sleepers. Hasn’t settled so may benefit from physio. Ibuprofen and analgesia at present. Secondly it is in addition to his work related injuries, but if you can help a one stop shop might be easier?

27. On 2 August 2010 Dr Speldewinde provided a report to Mr Smith’s former solicitors in which he noted:

    It is more probable than not that Mr Smith’s injuries became intrusively persistent as a result of the motor vehicle accident of 2005. However he did have a pre-existing long term neck pain for some 20 years following a previous motor vehicle accident and ??? pain 12 months prior to the motor vehicle accident, though to not anywhere near the extent of severity or as disabling that it subsequently became following the accident…

28. On 10 April 2012 Mr Smith’s physiotherapist recorded that he had had a mild MVA 14/2 hit from B-Hind… In a letter dated 24 October 2012 Dr Bills noted that Mr Smith had recently suffered an expected aggravation (aggravation due to minimal trauma) which was slowly resolving.

29. Comcare sought a report from Dr John McDonald, an orthopaedic surgeon. In that report, dated 25 March 2015, Dr McDonald stated:

    The condition that Mr Smith currently suffers from is impossible to be precise about on the information to hand, but I am prepared to accept that the type of injury described could well be material in the development of neck discomfort considering his car was written off…

    I believe that the condition is related to his employment as a security officer and not to factors unrelated to work, however, a pre-existing or underlying condition could be present to a degree and the natural progression of that underlying condition which was causing a degree of cervical and lumbar discomfort could be material.

30. On 24 September 2015 Dr Bills referred Mr Smith to Dr Romil Jain, a pain specialist. The referral letter stated:

    Now, he has a long history of neck problems, mainly cervical spondylosis, aggravated by MVA in 2005…

    Dr Jain provided a report to Dr Bills dated 25 February 2016, in which he stated:

    I believe Gordan [sic] has mainly nociceptive cervical and lumbosacral pain with likely contribution from his facet joint inflammation. Central sensitisation is likely to play a key role here. His major issue at this stage remains stress associated with recent cessation of his physiotherapy by WorkCover. His last investigations have been quite a long time back.

31. Dr Matthew Paul (an occupational physician) assessed Mr Smith on Comcare’s behalf and provided a medical report dated 21 July 2016. Dr Paul stated:

    He has a history of episodic lumbar spine pain and cervical spine pain leading up to the incident of 2005. As a result of the incident of 2005 he sustained a soft tissue injury to the right shoulder which resolved. He has continued to have episodic pain in the lumbar spine and cervical spine which had become more constant but is not related to the subject accident…

    I do not believe his ongoing symptoms are related to any injury sustained in the subject accident…

    He requires no treatment in relation to the injury sustained in the accident. Any ongoing treatment is related to his pre-existing painful conditions and chronic pain.

32. Dr McDonald gave evidence to the Tribunal by telephone from New Zealand. He was asked to explain a section of his report of 25 March 2015 where he wrote:

    …a pre-existing or underlying condition could be present to a degree and the natural progression of that underlying condition which was causing a degree of cervical and lumbar discomfort could be material.

    He indicated that, giving Mr Smith the benefit of some considerable doubt, he believed at the time he wrote the report that the condition he identified may have been related to the 2005 car accident. However, he also referred to further medical reports he had received shortly before the hearing, which led him to the view that Mr Smith had considerable episodes of neck and back pain prior to the… accident. He cited the views of other doctors, and the fact that Mr Smith had undertaken three separate x-rays of his spine in relation to his back in the five years prior to the accident, as supporting a revised view that, on the balance of probabilities, the car accident is essentially not contributing to his ongoing disability.

33. Dr Paul’s evidence to the Tribunal was more emphatic. He affirmed the view stated in his report of 21 July 2016 that Mr Smith’s ongoing symptoms are not related to any injury he sustained in the accident in 2005. He said he had asked Mr Smith in July 2016 if he had experienced any pain in his back or neck prior to the 2005 accident, and that Mr Smith had said he had not. He said that this history was not …reliable in terms of assessing causation, in light of the other medical reports of his injury history. He also considered that the 2005 accident did not constitute an aggravation of his pre-existing condition.

34. 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

35. 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.

36. 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.

37. 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.

1. 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.

2. The Tribunal finds that the physiotherapy treatment Mr Smith obtained after 17 September 2015 was not treatment in relation to his accepted condition.

3. It follows that consideration of the second question, whether the recent physiotherapy treatment obtained by Mr Smith was reasonable, is unnecessary to determine since such treatment does not relate to his compensable injury. For completeness, however, the Tribunal will comment on the evidence in this respect.

   WAS PHYSIOTHERAPY REASONABLE FOR MR SMITH TO OBTAIN, IN THE CIRCUMSTANCES?

4. As noted in paragraph 3 above, 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. The question of whether the physiotherapy treatment provided in relation to Mr Smith’s condition is reasonable treatment for that condition in the circumstances is to be determined having regard to the factors previously set out in decisions of the Tribunal and in the Clinical Framework of the Delivery of Health Services (the Framework).

5. In Alamos Deputy President Constance considered the appropriateness of a program of some 300 physiotherapy sessions supplied to Mrs Alamos over eight years. He noted that the medical evidence suggested the physiotherapy was not medically indicated (notwithstanding support from her GP for the treatment) and provided no long-term improvement in her condition. He observed (at [24]):

   Without intending the list to be exhaustive, some of the factors which may be relevant considerations in the circumstances are:

   ·         the benefit of the treatment to the injured worker;

   ·         the long-term effect of the treatment;

   ·         whether the treatment is likely to cure the injury or significantly reduce its effects;

   ·         whether the treatment maintains the status quo;

   ·         the cost of ongoing treatment.

6. In relation to the second limb of the test in s 16, the Tribunal may have regard to the Framework: Alamos at [31], Durham and Comcare [2014] AATA 753 at [42]. In broad terms the principles in the Framework for assessing the reasonableness of treatment reflect the decided cases, and in particular the factors set out in Alamos and Durham. The Tribunal in Alamos reflected on both the Framework and other decisions of the Tribunal in relation to physiotherapy (at [33]-[36]):

   33. One of the stated principles in the Clinical Framework is to “empower the injured person to manage their injury.” It says in part:

   The key measure of treatment effectiveness is the ability of the injured person to manage their condition as independently as possible and participate in activities at home, in the community and at work. Independence does not mean being symptom-free, but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependency on treatment, which reinforces illness behaviour and can lead to persistent pain or long-term disability.

   34. This is consistent with previous decisions of this Tribunal. In Re Popovic andComcare, the Tribunal said:

   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. However in this case any benefit is outweighed by the counter-productive effect with leading the applicant to a dependent state, inhibiting his ability to learn to cope, and embark on pain management programs to assist him with that object. [Authorities omitted].

   35. Furthermore, in Chowdhary andComcare, the Tribunal held that:

   ... there is no evidence of any plan to have 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.

   36. The Tribunal has found on a number of occasions that regular physiotherapy or chiropractic treatment was not reasonably obtained. In Smith and Telstra Corporation Limited, the Tribunal considered long-term physiotherapy for a back condition which included cumulative soft tissue damage that contributed to disc and facet joint degeneration. The Tribunal found that the physiotherapy was palliative but not reasonable for the employee to have obtained. [references omitted]

7. In light of these principles, the Tribunal came to the view that it was not reasonable for Mrs Alamos to obtain ongoing physiotherapy treatment.

8. In Durham the Tribunal was required to consider whether it was reasonable to continue twice-weekly physiotherapy which had been provided to Mr Durham by Comcare for a back condition over some 17 years. Mr Durham contended that the physiotherapy could not cure his condition but would maintain him at a level where he could continue to function and to work. Evidence before the Tribunal suggested that the treatment was primarily passive, did not improve the condition for which he suffered and did not empower him to take a greater role in self-management of his condition. The Tribunal upheld the decision to curtail his entitlement to physiotherapy, finding that there had been no consistent progressive improvement to his back condition over the period he had received physiotherapy; rather, he had become habituated to the treatment.

9. The factors set out in these previous Tribunal decisions together with the Principles in the Framework, particularly Principles 1 and 3, offer a useful checklist against which to assess the reasonableness in the circumstances of ongoing physiotherapy for Mr Smith’s condition.

   The long-term effect of the treatment, and its benefit to the worker

10. Mr Smith’s evidence to the Tribunal was that he requires physiotherapy treatment consisting of manual manipulation when he has a flare up which he describes as when his neck and/or back becomes locked.  He concedes that his need for this treatment has reduced over the years since the injury, and particularly after he increased his self-management techniques from August 2015.  He currently only requires the intervention of physiotherapy treatment approximately once every three months. In the intervening periods he is able to self-manage his symptoms through the use of various self-mobilisation techniques, taking a range of medication and using equipment such as blocks and balls.  The physiotherapy, he says, is a necessary supplement to the self-management techniques that he uses on a daily basis to manage his condition.   

11. Comcare submits that the physiotherapy treatment is not necessary for the management of Mr Smith’s condition, and that continued physiotherapy may stall if not hinder his long term recovery.  The evidence submitted to the Tribunal by Mr Smith in the format of an Excel spreadsheet detailing his daily progress in managing his symptoms including flare ups indicates that on five of the seven occasions during the relevant period the flare up was resolved without the intervention of manual manipulation by this physiotherapist of the aggravated area.  Comcare submits and the Tribunal accepts that this indicates that Mr Smith’s recovery has progressed to the stage where physiotherapy is not necessary for him to recover from a flare up and that the passage of time and his own self-management techniques are sufficient for these to resolve themselves.

12. The evidence before the Tribunal supports the submission of Comcare that Mr Smith has developed an “unhealthy dependence” on physiotherapy to manage his flare ups.  Mr Smith conceded that he seeks out physiotherapy treatment when he is unable to self-manage his symptoms, and that he believes that this intervention is the only way that a flare up can be resolved.  The evidence of Dr McDonald at the hearing was that joints do not become locked, and that a patient should be able to self-mobilise to relieve such symptoms. He told the Tribunal that there is no good scientific evidence for beneficial outcomes from prolonged manual manipulation physiotherapy treatment for cervical and lumbar injuries. Whereas this treatment is appropriate in an acute context, it is not beneficial for prolonged treatment of an ongoing condition. In his view, a patient who feels their back or neck is locked should be able to mobilise themselves through stretching and pilates type activities and the use of equipment such as bricks and balls.

13. The evidence before the Tribunal supports the contention of Comcare that Mr Smith’s physiotherapist, Mr Kragh, may have led him to believe that the only effective treatment for his severe symptoms, particularly flare ups, is manual manipulation.  At the hearing, the Tribunal heard evidence from Mr Harry Papagoras, a physiotherapist, who conducted a Clinical Panel Review in January 2014 into Mr Kragh’s treatment of the applicant.  His evidence was that it was mutually agreed between him and Mr Kragh at this time that Mr Smith’s treatment should be gradually steered away from manual manipulation.  However, despite this, Mr Smith’s physiotherapy treatment continued with little change until late 2015.  According to Mr Smith’s own evidence it was the intervention of his psychologist, Ms Kerrianne Abbott, who he started to see in April 2016, that resulted in him reducing his reliance on physiotherapy and increasing his self-management techniques. 

14. The medical evidence supports Comcare’s submission about the benefit of Mr Smith receiving ongoing physiotherapy treatment, particularly manual manipulation. Mr Papagoras told the Tribunal that manual manipulation including the thrust technique is not considered best practice amongst practitioners, and that he has not used this on a patient’s neck for a decade.  The current approach is to teach patients to use methods of self-treatment or mobilisation which achieve the same results as physical manipulation and encourages the patient to be less dependent on the clinician to achieve relief from their symptoms. 

15. On the basis of the medical evidence, which is consistent with the Principles of the Framework which are designed to ensure that individuals be empowered to self-manage their injury, the Tribunal finds that the long-term effect of physiotherapy treatment and its benefit to Mr Smith is limited, if not detrimental, and that it is therefore not reasonable.

    Whether the treatment is likely to cure the injury or significantly reduce its effects

16. This criterion is reflected in Principle 1 of the Framework. It should be viewed as the converse of the criterion whether the treatment maintains the status quo.

17. The evidence before the Tribunal is that the physiotherapy treatment that Mr Smith has received over more than a decade has not cured, or even significantly reduced his symptoms, other than the short-term relief he says it provides him when he experiences occasional flare ups. 

18. It would be an overstatement to say that all treatment for an injury must be curative for it to be considered reasonable to undertake pursuant to s 16: see, for example, ComcareAustralia v Rope (2004) 135 FCR 443. However, in the present circumstances the benefits in the temporary relief of pain must be weighed against the detriment (if any) of the treatment, among which should be included the delay it has occasioned in Mr Smith’s transition to complete self-management of his condition. In Durham the Tribunal rejected the argument that physiotherapy should be provided where its principal benefit was merely facilitating the injured worker’s day-to-day functionality. Similarly in Bayani and Australian Postal Corporation [2015] AATA 342 the Tribunal considered the relevance of Principle 1 of the Framework to the situation of an injured worker who had become dependent on physiotherapy, and found (at [48]):

    I am satisfied that had this principle been observed, it would have been obvious that the physiotherapy treatment was not providing a measurable benefit, the applicant’s health status had not changed, and functional goals, if ever established, were not being achieved. (Emphasis in original)

19. The Tribunal there 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.

20. On the basis of the above and the evidence before the Tribunal outlined in the paragraphs above, the Tribunal finds that ongoing physiotherapy treatment is not likely to cure Mr Smith’s injury or significantly reduce its effects, and that it is therefore not reasonable.

    The cost of ongoing treatment

21. Deputy President Constance’s reference to the cost of treatment in Alamos underscores a line of decisions where a cost benefit analysis has been undertaken to assess the reasonableness of particular treatment. In Comcare v Holt [2007] FCA 405, for example, Mansfield J concluded that a cost/benefit analysis ought to be undertaken. His Honour decided that there may be circumstances where therapeutic treatment will be unreasonable if alternative treatment is available for potentially similar benefit at a lower cost, and he decided that the extent to which such treatment has been undertaken in the past and the degree of its success may also be relevant (at [26]). His Honour added, however, that:

    There may be cases… where treatment …which in the past has had some therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of past experience…

22. 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

23. 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).

24. 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.

25. The Tribunal therefore affirms the decision under review.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

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

Associate

Dated: 30 June 2017

Date(s) of hearing:	21/22 March 2017
Applicant:	In person
Counsel for the Respondent:	Kate Slack
Solicitors for the Respondent:	Sparke Helmore