Stitt and Comcare (Compensation)

Case [2018] AATA 3092

Stitt and Comcare (Compensation) [2018] AATA 3092 (24 August 2018)

Division:GENERAL DIVISION

File Number:           2017/2763

2018/0949

Re:Sharon Stitt

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President S Boyle

Date:24 August 2018

Place:Perth

The decisions under review are affirmed.

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

Deputy President S Boyle

CATCHWORDS

COMPENSATION – medical treatment – treatment which was reasonable for the Applicant to obtain in the circumstances – whether physiotherapy is reasonable treatment in the circumstances – decisions under review are affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 4, s 5A, s 5B, s 14(1), s 16

CASES

Alamos and Comcare [2014] AATA 629
Bashar v Comcare Australia (2002) 69 ALD 784; [2002] FCA 837
Blackwell and Comcare [2017] AATA 1357
Chowdhary and Comcare [1998] AATA 448
Comcare v Watson (1997) 46 ALD 481
Durham and Comcare [2014] AATA 753
Napier and Comcare [2017] AATA 1452
Pethes and Comcare [2018] AATA 483
Popovic and Comcare (2000) 64 ALD 171; [2000] AATA 264

Rope and Comcare [2013] AATA 280

SECONDARY MATERIALS

Clinical Framework for the Delivery of Health Services

REASONS FOR DECISION

Deputy President S Boyle

24 August 2018

THE APPLICATIONS

  1. The Applicant seeks review of two decisions made by delegates of the Respondent. Two separate applications were made and were heard together. They are:

    1. Application 2017/2763

  2. A decision dated 28 April 2017 which affirmed the original determination dated 27 March 2017 made by a delegate of the Respondent that the Respondent was not liable to pay compensation for medical treatment under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).

    2. Application 2018/0949

  3. A decision dated 23 February 2018 which affirmed the original determination dated 6 February 2018 made by a delegate of the Respondent that the Respondent was not liable to pay compensation for medical treatment under s 16 of the SRC Act.

    BACKGROUND

  4. The Applicant was employed by the Department of Human Services as a clerk until 1995 when she was prevented from continuing to work by her thoracic outlet syndrome.

  5. The Applicant has an accepted workers’ compensation claim in respect of aggravation of thoracic outlet syndrome (the accepted injury). The date of injury was 29 March 1995.

  6. The Respondent has accepted liability between 1995 and 2015 for various forms of treatment in relation to the accepted injury.

  7. In September 2011, the Applicant started seeing her current physiotherapist, Ms Elphick (R2.3 vol 1, T51).

  8. According to the Respondent’s records the Applicant underwent 1190 sessions of physiotherapy between 1 May 1996 and 12 December 2016 (R2.2, T22).

  9. On 25 November 2016, by agreement of the parties, the Administrative Appeals Tribunal (Tribunal) set aside a decision of a delegate of the Respondent dated 3 March 2016 and in substitution it was decided that (R2.1, T12):

    Pursuant to subsection 42C(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the reviewable decision of the Respondent dated 3 March and, in substitution therefor, decides that, in…

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Details
AGLC
Stitt and Comcare (Compensation) [2018] AATA 3092
Case
[2018] AATA 3092
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, Ms Stitt, against a decision by Comcare that it was not liable to pay compensation for medical treatment under section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The Applicant suffered from an accepted workers' compensation claim for aggravation of thoracic outlet syndrome, with the date of injury being 29 March 1995. Comcare had previously accepted liability for various treatments between 1995 and 2015. The dispute centred on the reasonableness of physiotherapy treatment proposed in treatment plans for 2017 and 2018, following an earlier Administrative Appeals Tribunal (Tribunal) decision that had affirmed liability for two physiotherapy sessions per week between February and December 2016.

The core legal issue before the Tribunal was whether the physiotherapy treatment proposed in the 2017 and 2018 treatment plans constituted "reasonable treatment" for the Applicant's accepted injury under section 16 of the *SRC Act*. This required the Tribunal to assess the necessity and efficacy of the proposed physiotherapy in managing the Applicant's ongoing pain and functional limitations, particularly in light of her extensive history of physiotherapy and other pain management interventions.

The Tribunal reasoned that while the Applicant's evidence indicated that physiotherapy provided some pain relief and helped maintain her functional capacity, it did not demonstrate that the specific treatment proposed in the 2017 and 2018 plans was reasonable in the circumstances. The Tribunal noted that the Applicant had undergone a significant number of physiotherapy sessions over many years and had also explored other pain management strategies, including multidisciplinary pain management programs and consultations with various specialists, without sustained significant benefit. The Tribunal concluded that the evidence did not establish that the proposed physiotherapy was likely to achieve the functional goals outlined in the treatment plans or that it represented a reasonable course of treatment given the Applicant's overall clinical picture and treatment history.

Consequently, the Tribunal affirmed the decisions under review, finding that the treatment set out in the 2017 and 2018 plans was not reasonable treatment in the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

A decision dated 23 February 2018 which affirmed the original determination dated 6 February 2018 made by a delegate of the Respondent that the Respondent was not liable to pay compensation for medical treatment under s 16 of the SRC Act. BACKGROUND The Applicant was employed by the Department of Human Services as a clerk until 1995 when she was prevented from continuing to work by her thoracic outlet syndrome. The Applicant has an accepted workers’ compensation claim in respect of aggravation of thoracic outlet syndrome (the accepted injury). The date of injury was 29 March 1995. The Respondent has accepted liability between 1995 and 2015 for various forms of treatment in relation to the accepted injury. In September 2011, the Applicant started seeing her current physiotherapist, Ms Elphick (R2.3 vol 1, T51). According to the Respondent’s records the Applicant underwent 1190 sessions of physiotherapy between 1 May 1996 and 12 December 2016 (R2.2, T22). On 25 November 2016, by agreement of the parties, the Administrative Appeals Tribunal (Tribunal) set aside a decision of a delegate of the Respondent dated 3 March 2016 and in substitution it was decided that (R2.1, T12):Pursuant to subsection 42C(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the reviewable decision of the Respondent dated 3 March and, in substitution therefor, decides that, in relation to the Applicant’s accepted claim for ‘‘aggravation of thoracic outlet syndrome’’ with date of injury deemed to be 29 March 1995 under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), the Applicant is entitled to compensation under the SRC Act for 2 physiotherapy sessions per week from 3 February 2016 to 18 December 2016. As part of the agreement pursuant to which the above decision was made by consent, the Applicant agreed that she would attend her general practitioner’s office to organise a referral to attend a multidisciplinary pain management program (MDPMP) and the Respondent agreed that it would be liable under s 16 of the SRC Act for the reasonable costs of a MDPMP (Attachment A to R1 and R2.1, T15 at 83). The Applicant saw Dr Andrew Britto, her general practitioner, on 13 December 2016 for a referral to attend a MDPMP. Dr Britto advised that in his opinion “there was some question as to the benefit of such a referral given that she has already been referred to pain management specialists” although he “would be happy to do so if she wished” (R2.2 T4, T5 and T16). The Applicant did not obtain the referral to attend a MDPMP. On 9 January 2017 Ms Kate Elphick, the treating physiotherapist, sent a treatment management plan dated 4 January 2017 to Comcare (R2.1, T16) (the 2017 plan). The proposed treatment plan requested continued treatment of two physiotherapy sessions over 52 weeks from 19 December 2016 until 19 December 2017 with the functional goals to:(a)improve exercise tolerance > 10min;(b)improve neuro-provocation tests;(c)improve computer work tolerance > 10 min; and (d)improve walking > 15 mins.

Evidence

Evidence Before The Court

Comcare’s general liability to pay compensation is set out in s 14 of the SRC Act. Subsection 14(1) provides: Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.EVIDENCEThe Applicant’s Evidence The Applicant in her statement of 13 April 2018 advised as follows:(a)her treatment has been the same for the last six to eight years and is focussed on pain relief and increasing her capacity to perform her daily routines (A2, para 8); (b)she experiences pain that is “a burning kind of pain, which varies between feeling like tingling and stabbing – but there is always the feeling of a dull ache” (A2, para 9);(c)she takes a range of medications to help with her condition, currently including: Cymbalta (one per day), Panadeine Forte (four per day), Nurofen, Phenergan, Diazepam and Mersyndol as required (A2, para 13); (d)sometimes her pain is so bad that she cannot get out of bed. This happens on average two days per week (A2, para 11);(e)she has physiotherapy twice a week, and she is currently being treated by Ms Elphick. She undertakes supervised exercise under Ms Elphick. She does exercises as structured by Ms Elphick at home every day (A2, paras 17, 19);(f)she sees her general practitioner regularly (A2, para 15);(g)she has been to several pain management practitioners, including a psychologist who taught her pain management techniques (A2, para 16);(h)physiotherapy that she had between 3 February 2016 and 18 December 2016 led to a reduction in her pain (A2, para 22);(i)when she misses a physiotherapy session her pain increases (A2, para 23) and she has to increase her daily medications in order to counteract the increase in pain (A2, para 24);(j)she continued to have physiotherapy with Ms Elphick twice a week through 2017 (the 2017 plan) (A2, paras 25 and 26) and has continued to have physiotherapy with Ms Elphick now (the 2018 plan). The 2018 plan runs up to December 2018 (A2, paras 31 and 32). The Applicant is paying for the 2018 plan and paid for the 2017 plan (A2, para 36); (k)she would prefer to treat her symptoms without medication because of the side effects of medication (drowsiness and constipation) (A2, para 40);(l)the physiotherapy provides her with pain relief (A2, para 38). The 2017 and 2018 plans generally improve her pain symptoms (A2, para 42);(m)sometimes when the physiotherapist tries a new exercise it hurts (A2, para 43) but if that happens she tells the physiotherapist and she uses a different method (A2, para 44) and she does not mind the discomfort because she knows that the physiotherapist is using her expertise to help her (A2, para 45);(n)the physiotherapy helps to keep the pain (which is constant and unrelenting) focused around her neck and shoulder, it helps relieve some of the tightness and stiffness in her neck and shoulder (A2, para 46) and if she does not go to physiotherapy, the pain spreads to other parts of her upper body (A2, para 47); (o)she has tried different kinds of exercise but all activity seems to aggravate her condition (A2, para 52) and she has seen several pain specialists including Dr Graziotti, Dr Salmon and Dr Gee and clinical psychologist Annette Allman. None of their treatments, including injections, exercise programs and psychological pain management have helped alleviate the pain (A2, para 53); and(p)she has difficulty driving more than 10 minutes (A2, para 57).THE ISSUES

Decision

Reasons for decision

The Tribunal accordingly finds that the treatment set out in the 2017 plan and the 2018 plan are not reasonable treatment in the circumstances.DECISION The Tribunal affirms the decisions under review.

Ratio Decidendi

Legal Principle Established

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