Sommerville and Comcare (Compensation)
[2016] AATA 289
•5 May 2016
Sommerville and Comcare (Compensation) [2016] AATA 289 (5 May 2016)
Division
GENERAL DIVISION
File Number
2014/5928
Re
Catherine Sommerville
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 5 May 2016 Place Adelaide The decision under review is varied so as to provide that as at and from 1 October 2014 to the date of this Decision, the following treatment was reasonable for Ms Sommerville to obtain, pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988:
(a)Physiotherapy treatment, excluding manipulative physiotherapy; and
(b)Supervised hydrotherapy – up to two sessions per week.
........... [Sgd] ........................................................
Deputy President K Bean
CATCHWORDS
COMPENSATION – Liability for physiotherapy and hydrotherapy treatment obtained in relation to accepted back injury – Whether reasonable treatment for applicant to obtain – Decision under review varied.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, subs 16(1)
CASES
Comcare and Watson (1997) 46 ALD 481
Re Chowdhary and Comcare [1998] AATA 448
Re Popovic and Comcare (2000) 64 ALD 171
Re Alamos and Comcare [2014] AATA 629
Re Durham and Comcare [2014] AATA 753REASONS FOR DECISION
Deputy President K Bean
5 May 2016
The applicant, Ms Sommerville, is currently 58 years old. Many years ago, in 1978, she sustained a back injury during the course of her employment with the Commonwealth Bank of Australia, and unfortunately the effects of that injury have continued.
There is no dispute that the respondent, Comcare, remains liable to pay compensation in respect of the injury, being a “strained lumbar disc resulting in L4/5 disc degeneration”. What is in dispute, however, is whether Comcare remains liable to pay compensation to Ms Sommerville for particular types of treatment, namely physiotherapy and hydrotherapy.
On 1 July 2014, following a review by a Clinical Panel consultant, a Comcare delegate determined that compensation would be paid to Ms Sommerville for four physiotherapy sessions over three months to 1 October 2014, and two sessions per week of supervised hydrotherapy over three months, also to 1 October 2014.[1] However, the delegate also stated:
Your treating practitioner has agreed with the Clinical Panel consultant that your physiotherapy and hydrotherapy sessions will not be provided beyond 1 October 2014, and you will be discharged from your physiotherapy and supervised hydrotherapy treatment.
[1] Exhibit 1, T24/68.
On 26 September 2014, a review officer affirmed that determination.[2] In her reasons for decision, the review officer stated “ongoing physiotherapy and hydrotherapy does not meet the Clinical Framework and requirements of the legislation in your case”.
[2] Exhibit 1, T29/77.
On 14 November 2014, Ms Sommerville applied for review of that decision by this Tribunal[3], giving rise to these proceedings.
[3] Exhibit 1, T1/7.
I will first outline the applicable statutory framework and identify the issues with more precision, before addressing those issues by reference to the evidence and the contentions of the parties.
STATUTORY FRAMEWORK
The legislation which is applicable to determining Ms Sommerville’s ongoing compensation entitlements is the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). With respect to compensation for medical expenses, subs 16(1) relevantly provides that:
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.
As I understand the position, Comcare does not contend that the amounts claimed for physiotherapy or hydrotherapy to date are not appropriate to that treatment. Comcare also does not dispute, in the context of this matter, that both physiotherapy and hydrotherapy sessions are appropriately regarded as constituting “medical treatment” within the meaning of the SRC Act, and I am also satisfied that is the case. However, that leaves the issue of:
(a)Whether, after 1 October 2014, physiotherapy and/or hydrotherapy of the kind which had been provided constituted treatment that it was “reasonable” for Ms Sommerville to obtain.
I will first address the reasonableness of further physiotherapy treatment, before turning to the reasonableness of the proposed hydrotherapy treatment.
AS AT AND FROM 1 OCTOBER 2014, WAS IT REASONABLE FOR MS SOMMERVILLE TO OBTAIN PHYSIOTHERAPY TREATMENT?
Evidence and Contentions
In defence of the decision under review, Comcare has pointed out that the cost of physiotherapy and supervised hydrotherapy treatment for Ms Sommerville since 1993 has been in the order of $24,000.00.
Comcare also relies on a document entitled “Clinical Framework for the Delivery of Health Services”[4] (the Clinical Framework), apparently developed by the Transport Accident Commission of Victoria and WorkSafe Victoria, and subsequently also adopted by Comcare. The Clinical Framework outlines the following guiding principles for the delivery of health services:
(i)measure and demonstrate the effectiveness of treatment;
(ii)adopt a biopsychosocial approach;
(iii)empower the injured person to manage their injury;
(iv)implement goals focused on optimising function, participation and return to work; and
(v)base treatment on the best available research evidence.[5]
[4] Exhibit 2, ST17/96.
[5] Exhibit 2, ST17/101.
In its Statement of Facts and Contentions, Comcare contended that ongoing physiotherapy and supervised hydrotherapy “is unlikely to cure or significantly reduce the effects of the Applicant’s compensable condition, and it does not empower the Applicant to take on a greater role in self-management.” Accordingly, it was contended that further physiotherapy and hydrotherapy treatment did not comply with the principles contained in the Clinical Framework.
Comcare also relied on the contents of the Clinical Panel Review report completed by Mr Harry Papagoras, a qualified Physiotherapist, dated 14 April 2014[6], as well as the oral evidence of Mr Papagoras.
[6] Exhibit 1, T23/63.
In his report, Mr Papagoras recorded a telephone discussion with Ms Sommerville’s treating physiotherapist, Ms Prathyusha Doppalapudi, on 9 April 2014. On that day, Ms Doppalapudi apparently reported that she reviewed Ms Sommerville on 26 February 2014 and that “the injured worker still has ongoing low back problems and that treatment is maintaining her”.[7] Mr Papagoras also recorded the following:
- The injured worker has been attending hydrotherapy 1-2 x weekly and does her exercises independently with little supervision now. She attends the sessions at this pool, and billed as a supervised sessions (sic), as the water in other pools are (sic) colder and that she prefers this pool
- It was discussed and agreed that it may be reasonable for the injured worker to be transitioned into self managed land based exercises, and if she wishes to continue in a pool, then she can self fund as it is no longer considered remedial
- After further discussion, considering the stage of recovery and the Clinical Framework it was agreed that both physiotherapy and supervised hydrotherapy services eventually cease, as outlined in the schedules below, with a discharge to self management
- She felt that the agreed plans were “definitely” reasonable.[8]
[7] Exhibit 1, T23/64.
[8] Exhibit 1, T23/64.
Mr Papagoras’ report also indicated that it was agreed between he and Ms Doppalapudi that Ms Sommerville should have up to four physiotherapy services over three months from 12 May 2014 to 11 August 2014, and that physiotherapy services would then cease by 11 August 2014 “with a discharge to full self management”. His report also indicated that it was agreed supervised hydrotherapy should continue up to twice a week for four weeks from 12 May 2014 to 8 June 2014, and then for supervised hydrotherapy services to cease by 8 June 2014 “with a discharged (sic) to either self managed land based exercises or self funded pool exercises”.[9]
[9] Exhibit 1, T23/65.
In his oral evidence, Mr Papagoras confirmed that while Ms Sommerville may gain temporary benefit from physiotherapy, including increased mobility and improvement of pain, in his view, she would derive no long-term benefit. Given that her injury occurred in 1978, he could see no role for episodic reviews of her condition, and considered that she should be in a position to self-manage both the condition itself and any flare-ups. Mr Papagoras was pressed as to whether there may be any role for physiotherapy in managing a severe flare-up of symptoms, including a nerve irritation such as Ms Sommerville had experienced in the past. He appeared to indicate that there were no circumstances in which physiotherapy would be beneficial in managing an acute flare-up of symptoms, and Ms Sommerville should be able to self-manage her condition.
Comcare also relied on the report of Dr Kevin Angel, Consultant Orthopaedic Surgeon, together with his oral evidence. Dr Angel examined Ms Sommerville on 14 April 2015 and stated in his report of 30 April 2015:
After this length of time, I do not believe that formal physiotherapy would be of significant benefit and in particular she told me that the physiotherapy she had in Melbourne was of a manipulative nature and sometimes only had to see the physiotherapist every year or two. However, I consider with the advanced degenerative changes, she should avoid any manipulative treatment. Equally, I believe hydrotherapy would only be of temporary benefit while she is having that. She has been given self-managed stretches and exercises to do and does them daily and I believe that it should be the mainstay of her treatment along with regular walking.[10]
[10] Exhibit 5, p 4.
Dr Angel confirmed in his oral evidence that he accepted physiotherapy might make Ms Sommerville feel better, but he did not consider it would give her any long-term benefit. He accepted that it might assist to relieve pain on a temporary basis.
In her evidence, Ms Sommerville indicated that even she did not consider that she required regular ongoing physiotherapy treatment. However, she explained that her experience had been that, from time to time, she would have an aggravation of her condition. She had found physiotherapy of great benefit in settling these aggravations, both in assisting with mobility and reducing pain and other symptoms. She said based on how she was at the time of the hearing, she would not expect to need more than a couple of physiotherapy sessions per year, however she considered that she required ongoing access to physiotherapy to assist her in managing flare-ups. She stressed that she would only access physiotherapy if she felt she really needed to, and otherwise would self-manage her condition as she had in the past. She explained that if she experienced sciatic symptoms, as she had previously, she would be likely to seek assistance from a physiotherapist to settle these.
For completeness, I note that Ms Sommerville’s evidence as to the benefits of physiotherapy in managing and settling exacerbations of her symptoms was corroborated to some extent by a written report of Ms Barrowcliffe, Physiotherapist, in relation to her treatment of Ms Sommerville in December 2014. In her report of 19 December 2014, Ms Barrowcliffe stated:
Kate presented to us on the 9/12/14 for treatment of an exacerbation of her chronic low back and sciatic pain.
…
On examination Kate demonstrated globally limited lumbar range of movement, reduced straight leg raise on the left side, hypo-mobility and tenderness at the lower lumbar intervertebral and facet joints bilaterally and was tight and tender on palpation of the lumbar soft tissues.
Kate was treated with a combination of soft tissue massage, joint mobilisation and ultrasound, along with reviewing her home lumbar mobilisation exercises and stretches.
Kate would benefit from an additional 3-4 visits on a weekly to fortnightly basis to ensure her symptoms completely settle and her function does not decline. It would then be best for her to continue to self-manage with her hydrotherapy, pilates, home exercises and home management strategies.[11]
[11] Exhibit 2, ST2/2.
Consideration
I note that the bulk of the evidence before me is to the effect that, after 1 October 2014, further physiotherapy treatment could not be expected to result in long-term benefit to Ms Sommerville, although it may well result in the short-term alleviation of her symptoms and improvement in her function. Ms Sommerville’s evidence was that she had found physiotherapy particularly beneficial in the settling of flare-ups or aggravations. It is in this context that Comcare contends that further physiotherapy treatment is not “reasonable”, noting the amount of physiotherapy received by Ms Sommerville in the past, and the cost of ongoing treatment.
It is clear from the applicable case law, that treatment can be “therapeutic”, even if its only effect is the reduction of pain. His Honour Justice Finn observed in Comcare v Watson[12]:
The applicant 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.[13]
[12] (1997) 46 ALD 481.
[13] (1997) 46 ALD 481, at p 484.
There is also case law which supports the proposition that the provision of temporary relief from pain through physiotherapy can qualify as medical treatment which it is reasonable for an employee to obtain. In Re Chowdhary and Comcare[14], the Tribunal observed as follows (at [53]):
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 …
[14] [1998] AATA 448, at [53].
However, there is also case law to the effect that in some circumstances, continuation of passive physiotherapy treatment is not reasonable. In Re Popovic and Comcare[15], the Tribunal stated (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 … 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.
[15] (2000) 64 ALD 171.
Similarly, in Re Alamos and Comcare[16], the Tribunal accepted in the context of a back injury that the applicant obtained relief from the pain she suffered and gained flexibility following each session of physiotherapy treatment. However, the Tribunal also stated that in considering whether particular treatment was reasonable, “it is necessary to consider all of the circumstances” and not only the beneficial effects experienced by the injured employee. The Tribunal went on to state:
[16] [2014] AATA 629.
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.
After referring to the Clinical Framework and other decisions, the Tribunal said:
38.Mrs Alamos has undertaken more than 300 sessions of physiotherapy which her evidence suggests only results in a short-term alleviation of symptoms. In such circumstances, as noted by the Tribunal in Chowdhary and Popovic, it may not be reasonable to obtain ongoing treatment.
39.The medical evidence strongly supports a conclusion that it is not reasonable for Mrs Alamos to obtain ongoing physiotherapy at present. Even taking into account that Dr Lim is Mrs Alamos’ general practitioner and is supportive of indefinite physiotherapy, I prefer the evidence of Dr Pillemer and Mr Papagoras that ongoing physiotherapy is not medically indicated and will not provide long-term improvement in Mrs Alamos’ condition. I also note that Mr Bolla does not believe that weekly physiotherapy sessions should be used as treatment indefinitely.
40.Comcare has compensated Mrs Alamos for over 300 sessions of physiotherapy. I do not have evidence of the actual cost of these sessions but it would be significant. In my view the benefit to be gained by Mrs Alamos from continuing such treatment is outweighed by the cost which would be incurred and the possible benefits of alternative treatment.
41.In the circumstances, ongoing physiotherapy is not a form of treatment which has been reasonable for Mrs Alamos to obtain at any time since 6 May 2014. I accept the evidence that the home-based exercise plan is a reasonable form of treatment for Mrs Alamos’ condition at this stage. It may be that sometime in the future it may be reasonable for Mrs Alamos to seek a review of her exercise program by a physiotherapist, but it is beyond the jurisdiction of the Tribunal to make findings as to compensation payable in the future.
A similar decision was reached by the Tribunal in Re Durham and Comcare.[17] Again, this case involved a back injury which had occurred some 17 years previously. Prior to Comcare’s decision not to pay for further physiotherapy, the applicant was obtaining two sessions of physiotherapy per week. In light of the evidence, previous cases and the Clinical Framework, the Tribunal concluded:
62.I am satisfied from the evidence of the Applicant himself, and all the doctors whose evidence was before me, that there has been no consistent progressive improvement in Mr Durham’s back over the last 17 years. He has become habituated to the physiotherapy, even though he has managed with one session or less a week since December 2013. In considering the application of the case law (Re Popovic and Comcare and Comcare v Rope and Comcare v Holt), and the cost benefit argument, I find that long term physiotherapy such as Mr Durham has had has no place. The ‘Clinical Framework for the Delivery of Health Services’ deals with independence and self management, which has been hampered by Mr Durham’s dependence upon twice weekly Commonwealth funded physiotherapy. I am satisfied that the correct or preferable decision is to affirm the decision of the Respondent of 14 August 2013.
[17] [2014] AATA 753.
However, a significant point of distinction between those cases and this one is that in this matter, Ms Sommerville is not seeking regular ongoing physiotherapy treatment. Rather, her position is that she requires access to physiotherapy as needed, in particular to manage the effects of flare-ups of her condition. I note that Ms Sommerville’s expectation is that she is likely to need in the order of one or two sessions of physiotherapy per year. Although I have limited information before me as to the respective costs of each individual session of physiotherapy, I understand that this would be in the vicinity of $60 per session.[18] I also note that the records produced by Comcare verify that Ms Sommerville has made infrequent claims for physiotherapy treatment in recent years.
[18] Exhibit 2, ST7/19.
In these circumstances, I have ultimately concluded that it is not unreasonable for Ms Sommerville to obtain occasional physiotherapy treatment, with a view to alleviating and reducing the effects of exacerbations of her condition, including reducing pain and restoring function. In my view, the expected cost of such treatment is not unreasonable having regard to the likely benefit to Ms Sommerville. Accordingly, to the extent that the reconsideration delegate purported to determine that Comcare was not liable to pay for physiotherapy treatment after 1 October 2014, I regard that decision as incorrect.
As to whether that was the effect of the determination on 1 July 2014 and the reconsideration decision of 26 September 2014, that is a difficult question. On one view, what those decisions did was to accept liability for treatment up until 1 October 2014, and record an expectation that treatment would not continue after that date. Of course, noting that treatment is expected to cease is quite different from making a decision that compensation will not be paid for further treatment. On balance, I consider that their legal effect was probably to accept liability only up until 1 October 2014, rather than to cease liability for expenses submitted after that date. In either event however, I consider that I have jurisdiction in the context of the current application to consider whether and to what extent the relevant forms of treatment were reasonable as at 1 October 2014, and from that date until the date of my Decision.
I have accordingly concluded that I should vary the decision under review so as to provide that physiotherapy was reasonable treatment for Ms Sommerville as at and from 1 October 2014, although, noting Dr Angel’s comments about manipulative treatments being potentially harmful, I will exclude treatment of that kind.
AS AT AND FROM 1 OCTOBER 2014, WAS IT REASONABLE FOR MS SOMMERVILLE TO OBTAIN HYDROTHERAPY TREATMENT?
Evidence
With respect to this aspect of the application, I note that Comcare also relies on the evidence of Mr Papagoras to the effect that by October 2014, supervised hydrotherapy sessions were no longer necessary or considered “remedial” in Ms Sommerville’s case. He also indicated in the course of his oral evidence that there was no evidence that hydrotherapy was more beneficial than land-based exercise in the context of chronic low back pain.
However, Dr Angel indicated during his oral evidence that he supported Ms Sommerville continuing to exercise in a warm hydrotherapy type pool. He accepted that it would be easier for her to exercise in this type of environment, and considered this form of exercise would be beneficial to her, although he did not see a need for her to attend supervised hydrotherapy sessions, so long as she had access to an appropriate pool in which she could exercise.
I have also had the benefit of evidence from Ms Sommerville’s Pilates Instructor, Ms Pearson, together with a report prepared by her dated 30 June 2015. In her report, Ms Pearson stated:
I firmly believe that Kate also needs to continue with her movements in a water (hydro) environment, as this assists uniquely with a more weightless range of motion. Kate needs regular articulation of her joints, un-weighted muscle movement and stimulated lymphatic movement; all essential to her visceral (organ) function which I feel is now deteriorating from reduced spinal movement.[19]
[19] Exhibit 4.
In her oral evidence, Ms Pearson also explained that the comparative benefit of a heated pool was that Ms Sommerville was more likely to experience stiffness after exercising in a standard temperature indoor pool, due to cooling of her body and shortening of her muscles and ligaments.
The evidence before me also includes a report from Ms Sommerville’s treating Rheumatologist, Dr Black, dated 3 March 2015.[20] In that report, Dr Black stated:
I am however in full support of continuing hydrotherapy which is beneficial in the setting of mechanical or inflammatory back pain.
[20] Exhibit 2, ST4/4.
I also note that in the course of her oral evidence, Ms Sommerville reported receiving significant benefit from hydrotherapy, such that she had made significant efforts to access this treatment. She also explained that, although she was familiar with the exercises, she saw ongoing benefit in attending supervised sessions, which would ensure that she was performing the relevant exercises correctly. In addition, it was my understanding of her evidence that she did not have access to an appropriately heated hydrotherapy pool, other than the supervised hydrotherapy pool she had been attending. In other words, her evidence was that she did not have access to a hydrotherapy pool which she could use unsupervised. She explained that there was no other suitable pool accessible to her within a reasonable distance of where she lived.
For completeness, I also note that Ms Sommerville’s General Practitioner, Dr K Haslam, provided a medical certificate dated 8 November 2013, in which he recommended that Ms Sommerville continue to undergo two sessions of hydrotherapy per week to maintain mobility.[21]
[21] Exhibit 1, T19/51.
Consideration
Having regard to this evidence, and in particular the evidence of Dr Angel and Dr Black, together with Ms Sommerville’s evidence as to her inability to access an unsupervised hydrotherapy pool, I have ultimately concluded that as at and from 1 October 2014, it was reasonable for Ms Sommerville to continue to attend supervised hydrotherapy sessions twice per week, in the absence of access to an appropriately heated pool in which she could exercise independently. I accept that, if such a pool could be identified, it would be open to Comcare, and not inconsistent with my Decision, to restrict ongoing liability to the cost of access to a pool heated to the same temperature as a hydrotherapy pool, which Ms Sommerville could access on an unsupervised basis.
With respect to liability for hydrotherapy, the determination and reconsideration decisions each suffer from the same ambiguity as that I have already referred to. In other words, it is unclear from the decisions as to whether they are purporting to determine that there is no liability after 1 October 2014, or simply noting that treatment is expected to cease from 1 October 2014, and determining that payments will continue to be made until then.
In any event, for the reasons I have given, I have determined that as at and from 1 October 2014, it was appropriate for Ms Sommerville to continue to access twice weekly sessions of supervised hydrotherapy.
CONCLUSION
In light of my conclusions, I have decided to vary the decision under review so as to provide that as at and from 1 October 2014 to the date of this Decision, it was reasonable for Ms Sommerville to obtain physiotherapy treatment as required (excluding manipulative physiotherapy), and undertake up to two sessions per week of supervised hydrotherapy.
DECISION
The decision under review is varied so as to provide that as at and from 1 October 2014 to the date of this Decision, the following treatment was reasonable for Ms Sommerville to obtain pursuant to s 16 of the SRC Act:
(a)Physiotherapy treatment, excluding manipulative physiotherapy; and
(b)Supervised hydrotherapy – up to two sessions per week.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ....... [Sgd] .............................................
Associate
Dated 5 May 2016
Date of hearing 23 November 2015 Applicant In person Counsel for the Respondent Ms G Walker Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Remedies
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Statutory Construction
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Causation
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