Stitt and Comcare (Compensation)
[2018] AATA 3092
•24 August 2018
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 264Rope 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
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
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
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.
By original determination dated 27 March 2017 a delegate of the Respondent determined that Comcare would not pay for physiotherapy consultations under s 16 of the SRC Act. The delegate in their reasons for refusing the medical treatment stated, “Comcare must be satisfied that the treatment being provided is appropriate and is aimed at resolving the compensable condition rather than just providing temporary relief of symptoms…I am satisfied there is no clinical justification for ongoing physiotherapy treatment” (R2.1, T22, at 98-99).
On 29 March 2017 the Applicant’s lawyers requested a reconsideration of the original determination in [13] on the basis that the physiotherapy is reasonable medical treatment under s 16 of the SRC Act and that the “physiotherapy is required by Ms Stitt as treatment for her accepted condition” (R2.1, T23).
On 28 April 2017 the Respondent affirmed the determination in [13] to deny liability under s 16 of the SRC Act for physiotherapy consultations (R2.1, T25).
The Applicant filed an Application for Review of Decision with the Tribunal on 11 May 2017 for review of the decision in [15] (R2.1, T2). This is application 2017/2763.
On 22 December 2017 the Applicant made a claim for approval and payment for physiotherapy treatment by a proposed physiotherapy treatment plan prepared by Ms Elphick (R2.2, T12) (the 2018 plan). The proposed treatment plan was for the Applicant to attend 104 physiotherapy sessions from 19 December 2017 until 20 December 2018 with the functional goals to (R2.2, T12 at 55):
1.Improve walk tolerance > 20 mins.
2.Improve neural sensitivity BPTT. Bilat.
3.Improve computer work tolerance > 15 min.
By original determination dated 6 February 2018 a delegate of the Respondent determined that Comcare was not liable to pay for physiotherapy pursuant to s 16 of the SRC Act. That determination advised (R2.2, T18 at 65):
A Clinical Panel consultant has reviewed your ongoing request for physiotherapy and determined it is not reasonable to fund ongoing physiotherapy; rather they have recommended a change in treatment. A multidisciplinary pain management program has been recommended as it would be consistent with the Clinical Panel framework and ideally, the goal of such a program would be to further develop and encourage a more self managed approach as a reasonable long term solution.
On 9 February 2018 the Applicant’s lawyers requested a reconsideration of the determination in [18] on the basis that “the treatment is reasonable” and that “[p]hysiotherapy is supported by our client’s general practitioner, physiotherapist, and other medical practitioners” (R2.2, T19).
On 23 February 2018 the Respondent affirmed the determination in [18] to deny liability for physiotherapy under s 16 of the SRC Act (R2.2, T21).
The Applicant filed an Application for Review of Decision with the Tribunal on 27 February 2018 of the decision in [20] (R2.2, T2). This is application 2018/0949.
THE HEARING
The applications were heard by the Tribunal on 22 and 23 May 2018. The Applicant was represented by Mr Bruns, instructed by JDK Legal Services and the Respondent was represented by Mr Hawker of Sparke Helmore Lawyers.
At the hearing the Tribunal heard from the following witnesses:
(a)the Applicant;
(b)Dr Andrew Britto, the Applicant’s general practitioner;
(c)Ms Kate Elphick, physiotherapist;
(d)Dr Evan Jenkins, medico-legal consultant; and
(e)Dr Rosen, consultant neurologist.
The Tribunal admitted into evidence at the hearing the following documents:
(a)the Applicant’s Statement of Facts, Issues and Contentions dated 13 April 2018 (Applicant’s SFIC)(Exhibit A1);
(b)the Applicant’s Supplementary Statement of Facts, Issues and Contentions dated 18 May 2018 (Applicant’s Supplementary SFIC)(Exhibit A1.1);
(c)the Applicant’s Witness Statement dated 13 April 2018 (Exhibit A2);
(d)briefing letter to Ms Elphick from JDK Legal dated 20 April 2018 and Ms Elphick’s response dated 24 April 2018 (Exhibit A3);
(e)supplementary report of Dr Jenkins dated 23 April 2018 (Exhibit A4);
(f)briefing letter to Dr Jenkins from JDK Legal dated 9 November 2017 (Exhibit A6);
(g)report from Dr Jenkins dated 15 November 2017 and a signed letter from Dr Britto dated 15 December 2016 (Exhibit A7);
(h)the Respondent’s Statement of Facts, Issues and Contentions (Respondent’s SFIC) dated 11 May 2016 and including Attachments A – C (Exhibit R1);
(i)the Respondent’s Statement of Issues dated 11 July 2017 (Exhibit R1.1);
(j)section 37 T-Documents for 2017/2763 from T1-T28 (Exhibit R2.1);
(k)section 37 T-Documents for 2018/0949 from T1-T23 (Exhibit R2.2);
(l)section 37 T-Documents for the previous application 2016/0294 received by the Tribunal on 7 May 2018, including (Exhibit R2.3):
(i)T1 – T64 (R2.3, volume 1);
(ii)ST1 – ST110 (R2.3, volume 2); and
(iii)ST111 – ST144 (R2.3, volume 3).
(m)section 37 T-Documents from application 2016/1434 (Exhibit R2.4);
(n)the Applicant’s original Claim for Rehabilitation and Compensation dated 3 April 1995 (Exhibit R3);
(o)briefing letter to Mr Papagoras dated 2 May 2018 and the supplementary report of Mr Papagoras dated 14 May 2018 (Exhibit R4);
(p)briefing letter to Dr Rosen dated 20 September 2017 (Exhibit R5);
(q)letter from the Respondent’s delegate to Dr Rosen dated 10 February 2016 regarding a medical examination of the Applicant (Exhibit R6); and
(r)pages 63, 90 and 397 of documents produced under summons by Beaumaris Physiotherapy and Grand Prom Medical Centre (Exhibit R7); and
(s)supplementary report of Mr Papagoras dated 20 May 2018 (Exhibit R8).
THE LEGISLATION
Section 16 of the SRC Act relevantly provides:
(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.
Section 4 of the SRC Act defines medical treatment to mean:
(a)medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
(c)dental treatment by, or under the supervision of, a legally qualified dentist; or
(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
(e)an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or
(f)the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
(g)treatment and maintenance as a patient at a hospital; or
(h)nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
(i)any other form of treatment that is prescribed for the purposes of this definition.
[emphasis added]
“Injury” is defined in s 5A(1) of the SRC Act as follows:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
“Disease” is defined in s 5B of the SRC Act as follows:
(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
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.
EVIDENCE
The 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
The Applicant identifies the issue for determination (para 3 of the Applicant’s SFIC) as being “…whether the physiotherapy constitutes reasonable medical treatment within the meaning of s 16 of…” the SRC Act.
In his closing submissions Mr Bruns for the Applicant put it as follows:
…the key issue appears to be simply whether the physiotherapy treatment set out in the 2017 plan and on the 2018 plan is reasonable treatment within the meaning of section 16.
The Respondent states the issues as follows (para 2.2 of the Respondent’s SFIC):
2.2 Specifically, the Tribunal must consider whether the ongoing physiotherapy is:
(a)medical treatment;
(b)obtained in relation to the injury; and
(c)treatment which was reasonable for the Applicant to obtain in the circumstances.
As the issues identified by the Respondent include the single issue identified by the Applicant, the Tribunal will adopt the issues as identified by the Respondent as being the issues the Tribunal must adjudicate.
MEDICAL EVIDENCE
The following medical reports were put into evidence:
Dr Andrew Britto (General Practitioner)
·Report of 16 September 2015 (R2.3 vol 1, T53);
·Report of 15 December 2016 (R2.2, T5); and
·Report of 17 January 2018 (R2.2, T16).
Ms Kate Elphick (Physiotherapist)
·Report of 2 September 2015 (R2.3 vol 1, T51);
·Plan dated 4 January 2017 (R2.1, T16);
·Plan dated 22 December 2017 (R2.2, T12); and
·Report dated 24 April 2018 (in which Ms Elphick made the recommendation to change to one physiotherapy session a week due to continued improvement) (A3).
Dr David Rosen (Neurologist)
·Report of 21 June 2016 (R2.1, T8); and
·Report of 20 October 2017 (R2.2, T8).
Dr Evan Jenkins (General Specialist)
·Report dated 24 March 2016 (R2.1, T4);
·Report dated 15 November 2017 (A7); and
·Report dated 23 April 2018 (A4).
Mr Papagoras (Physiotherapist)
·Clinical Panel Review of 19 October 2015 (R2.3 vol 1, T55);
·Clinical Panel Review of 13 November 2017 (R2.2, T9);
·Report of 14 May 2018 (R4); and
·Report of 20 May 2018 (R8).
On 19 October 2015, Mr Papagoras provided a clinical panel review report (R2.3 vol 1, T55) following a discussion with Ms Elphick. He concluded that at that stage of recovery, “the provision of regular, ongoing, high frequency treatment is not consistent with elements of the Clinical Framework as it is not in accordance with a biopsychosocial approach to the management of pain, does not empower the injured worker to take on a greater role in self management and is not evidence based” (R2.3 vol 1, T55 at 240).
Mr Hawker, on behalf of the Respondent, submitted that the evidence of Dr Rosen, a specialist physician neurologist should be preferred over the evidence of the Applicant’s general practitioner Dr Britto and, presumably, Dr Jenkins. However, given the issues that fall for determination in this matter, the Tribunal does not see this as a matter of a contest between competing medical opinions, one group of which must be preferred over the other. In crucial respects, the medical views are not in conflict.
Looking at the evidence of the doctors, the two “competing” specialist views were, on the one hand that of Dr Jenkins, put forward by the Applicant, and, on the other hand that of Dr Rosen, put forward by the Respondent.
Dr Jenkins’ report of 24 March 2016 (R2.1, T4) relevantly stated:
… Ms Stitt commented, “Without physiotherapy I would be in bed” and she and her husband both said “we dread the times the Physio goes on leave” and Ms Stitt said that she dreaded when the Physiotherapist would have to retire, saying that she felt very dependent on the Physiotherapist because of the relief derived from this treatment.
…
[at page 22]
My diagnoses are:
1. Chronic severe cervical and right upper extremity neuropathic pain syndrome.
1.1 Chronic tension headaches.
2. Chronic Adjustment Disorder with depressed mood.
…
The prognosis is poor. Your client has been incapacitated from all work activities and the greater part of her personal ADLs for the past 20 years or more because of her chronic pain condition. Based on her limited improvement over that time there is no reason to expect that her situation will change appreciably and she is likely to continue to be incapacitated for her ADLs, including significantly her self-care capacity, for the foreseeable future.
…
[at page 26]
10. Do you believe that our client has an ongoing requirement for physiotherapy and pilates [sic]? If yes, please outline the frequencies necessary for which she would attend each [sic]?
Yes. In my opinion Ms Stitt does require physiotherapy for the remainder of her life. She described increasing incapacity without physiotherapy and a period of up to two days of good relief from symptoms with increased mobility and independence following physiotherapy treatment which she prefers to have three times per week.
…
It should be noted that physiotherapy in this situation is not given in the hope of improving or resolving a patient’s condition, rather it is a long-term symptomatic treatment, similar to a medication without the potentially deleterious effects of medication.
…
[at page 27]
In my opinion it would be deleterious to your client’s health if she were to cease physiotherapy through lack of funding or for any other reason.
…
Your client requires General Practitioner review with four visits per year costing $400.00 per annum for the foreseeable future. At an average life expectancy this would be required for more than the next 30 years…
Your client is currently taking five medications regularly at an estimated cost of $200.00 per month…
In my opinion your client requires physiotherapy two to three times a week for the remainder of her life. Given the frequency of this treatment it is likely that a suitable arrangement will be possible with her Physiotherapist, with such treatment costing an estimated $600.00 a month or $7,200.00 per annum for an estimated 30 years.
[at page 28]
[emphasis added]
On 21 June 2016 Dr Rosen produced a report following a medical examination of the Applicant on 23 May 2016 (R2.1, T8). Relevantly, Dr Rosen stated (at pages 51-52):
Ms Stitt told me that sometimes physiotherapy movements and exercises performed by and during physiotherapy treatment aggravate her symptoms for which reason she declined to demonstrate them to me today. She said that she booked an appointment for her physiotherapist this afternoon in anticipation of an exacerbation of her symptoms as a consequence of this assessment because in the past medical assessments lead to exacerbation of her symptoms.
…
Ms Stitt summarised the benefits to her of physiotherapy as providing temporary partial relief of pain after an initial aggravation of pain. She said that the process is demanding and painful. She said that she becomes “fretful” at the thought of missing physiotherapy for instance when the physiotherapist is away.
…
Ms Stitt said that she feels that she is clearly gaining some benefit. Not only does the treatment provide symptomatic relief but also has a preventative role because without treatment the field of pain seems to increase in its extent to involve the chest wall. She agreed that physiotherapy does not provide sustained improvement and that her rehabilitation and function plateaued many years ago.
The letter of instruction to Dr Rosen from the Respondent’s lawyers also set out a summary of the treatment that the Applicant had received, including between May 1995 and December 2015 some 1100 physiotherapy and pilates sessions, between May 1995 and November 2015, 475 household help sessions, and 13 pain management sessions between August 1995 and March 2000. A list of the Applicant’s medication since January 2010 was also provided. Dr Rosen was asked:
Can you clarify whether these forms of treatment are beneficial to Ms Stitt’s rehabilitation or whether there are forms of active treatment aligning with the Principles of the Clinical Framework which may provide improvement in her symptoms?
The Clinical Framework is a reference to the Clinical Framework for the Delivery of Health Services (the Clinical Framework) (Attachment C to the Respondent’s SFIC). The Clinical Framework is a document created under the auspices of a number of Commonwealth and State Government departments and other bodies and under the direction of the Transport Accident Commission and WorkSafe Victoria. It describes itself as reflecting:
…the most contemporary approach to treatment and incorporates recent developments in evidence based practice and use of objective outcome measurement in clinical practice.
[Clinical Framework, page 1]
In answer to the question at [41] Dr Rosen responded (R2.1, T8 at 63):
To some extent these treatments have been beneficial to Ms Stitt’s rehabilitation but strictly speaking these treatments cannot be now classified as rehabilitative in nature but are symptomatic, i.e. they provide for the most part temporary and partial symptom relief.
This is true of the analgesic medication and the ongoing therapy that she has. That is not to say however that these treatments are not preventing a worsening of symptoms or at some level relieving her distress and this is exactly how Ms Stitt described the beneficial effects of these treatments.
In my opinion there may be other forms of active treatment that could provide some benefit.
Dr Rosen then went on to provide comments based on the principles outlined in the Clinical Framework. These comments included (R2.1, T8 at 64):
You have set out in detail the extent of her treatment to date. In particular the amount of physiotherapy that she had appears not to have resulted in ongoing rehabilitation effect as judged by the failure for [sic] her function to improve… I have no doubt that after so many years of regular physiotherapy she has developed some degree of psychological dependence on this treatment. I also feel that the abrupt cessation of the physiotherapy would at least in the short-term be detrimental to her well-being and cause unnecessary distress unless it is done in the context of an overall therapeutic plan.
In my opinion management of withdrawal of physiotherapy should be in the context of treatment under the care of a multidisciplinary pain management unit whereby integrated and multidisciplinary care and ongoing management of her symptoms may, according to evidence based medicine, offer her the best chance of improving her function and reducing levels of distress and dysfunctional behaviour.
Dr Rosen provided a supplementary report on 20 October 2017 (R2.2, T8). Dr Rosen, amongst other comments, opined that:
In my opinion some form of treatment for Ms Stitt’s chronic pain is indicated and will be medically necessary for the foreseeable future. Whether it is physiotherapy, self-directed exercise therapy (with regular physiotherapy “top ups” for a few sessions once or twice a year), pharmacological treatment, psychological counselling or a combination of these is not clear and for Ms Stitt’s benefit should be clarified before any realistic long-term plan can be formulated.
…
However, since at present it is not possible to identify which combination of treatments will benefit which patients, and since Ms Stitt has a most recalcitrant chronic pain problem, her condition would be best managed in the context of a multidisciplinary pain management program since the alternatives have to date proven insufficient.
[page 35]
In answer to the question:
Could you please consider and comment on whether the physiotherapy treatment to date is providing a perceived benefit or is more likely to be an aggravating factor to the Applicant’s pain?
Dr Rosen responded:
According to Ms Stitt her self-reported description of the effects of physiotherapy includes contradictory statements about perceived beneficial and adverse outcomes.
…
In Ms Stitt’s case, a trial of cessation of physiotherapy is the only way to determine the extent (if any) to which it is an aggravating factor to Ms Stitt’s pain. I have already advised that a trial of cessation of physiotherapy in Ms Stitt’s case should be conducted in the context of a multidisciplinary pain management program.
[page 36]
Dr Rosen also expressed the view that:
It is still my opinion that if Ms Stitt is to receive optimal treatment for her condition she should attend a multidisciplinary pain management unit where she can be offered not only first line chronic pain pharmacotherapy for neuropathic pain…but also a range of other treatments the combination of which has been shown to be more effective than unimodal treatments.
…
[at page 36]
It may well be that in the context of multidisciplinary pain management physiotherapy continues to be of use, in which case I would endorse ongoing physiotherapy in that context. ….The medical literature provides good evidence for benefits of multidisciplinary pain management treatment for chronic pain…
[at page 40]
[footnotes omitted]
Dr Jenkins in his report dated 15 November 2017 (A7) responded to Dr Rosen’s reports. Dr Jenkins, commenting on Dr Rosen’s report of 21 June 2016, stated:
Dr Rosen’s comment on page 24 of his report “In my opinion there are several treatment modalities that have yet to be fully explored with her” is a reasonable proposition.
He then states “I think that over time her reliance on physiotherapy can be lessened or can be reduced and more appropriate [sic] therapies can be introduced with the help of experienced practitioners in the specialised pain management units …”.
There is nothing “inappropriate” about Ms Stitt’s long term physiotherapy treatment. Dr Rosen seems to be assuming the conclusion, or is begging the question as to whether it is desirable, necessary or indeed “appropriate” to reduce Ms Stitt’s physiotherapy. Ms Stitt has had over 22 years of physiotherapy which he agrees she has found to be symptomatically beneficial….
While I agree that the approach to management of chronic neuropathic pain has changed considerably over the past 20 years, and a multidisciplinary approach has been proven across a population to be more effective than medication and/or physiotherapy alone, it is important that any attempted change to Ms Stitt’s treatment regimen is made in a careful and collaborative manner.
I would not oppose Dr Rosen’s suggestion that an attempt be made to improve Ms Stitt’s chronic pain management plan, but it would be inappropriate and potentially harmful to attempt to reduce her longstanding physiotherapy treatment before any measures introduced did measurably improve her condition and she was then possibly able to gradually reduce her longstanding physiotherapy.
…
Dr Jenkins then cites the passages from Dr Rosen’s report of 20 October 2017 quoted at [45] above and says:
I am in agreement with this. After 22 years of treatment with regular physiotherapy and multiple opioid and pain modulatory medications, it may well be worthwhile for Ms Stitt to attempt multidisciplinary pain service treatment. It appears that she has nothing to lose given the severity of her chronic upper limb neuropathic pain condition. It is essential, however, that any such change to her treatment, including her longstanding physiotherapy regimen is made solely with the goal of improving her level of symptoms and functioning rather than simply with the overt intention of withdrawing her longstanding physiotherapy to save money.
Dr Jenkins prepared a further report dated 23 April 2018 responding to specific questions posed by the Applicant’s lawyers as follows (see A4):
Do you consider the 2017 and the 2018 plans to be reasonable treatment for Ms Stitts [sic] condition of aggravated thoracic outlet syndrome?
Yes. This is based on my familiarity with Ms Stitt’s case, noting that Ms Stitt has derived significant symptomatic relief from physiotherapy treatment over more than the past 22 years and continues to do so.
Do you consider the Framework to be an appropriate and/or applicable tool for assessing whether or not a patient is entitled to recommended treatment of any kind?
In general – yes, as it outlines the broad principles based on a reasonable evidence base which should be considered when assessing and formulating management for injured workers and patients in general.
[emphasis added]
Dr Britto also prepared a report dated 17 January 2018 (R2.2, T16) dealing with the Applicant’s failure to attend a multidisciplinary pain management unit as she had previously agreed to do. That report relevantly advised as follows:
…I was prepared to refer her if she wished but my opinion was that I thought this would be unlikely to produce significant benefit to her given her previous history of similar attempts at this type of treatment.
Dr Britto was cross-examined on his decision not to provide a referral for the Applicant to attend the multidisciplinary pain management unit. In relation to his comment about the Applicant’s “previous history of similar attempts at this type of treatment”, Dr Britto conceded that this history included referrals to pain specialists. These were not, as Dr Britto conceded, referrals to a multidisciplinary pain unit. His evidence was (Transcript, pages 40-41):
DR BRITTO: … And so I think when she was referred to the previous pain specialists they didn’t have a multidisciplinary pain sort of setup. But she did see other people within those - I think within those practices. I’m trying to remember the name, it might have been Geoffrey Gee. Definitely saw a psychologist back then, I just don’t have those notes. But when I was considering all of this my belief was that she’d had similar types. I know it’s not the same as a clinic, I don’t think they existed back then.
…
MR HAWKER: So because your understanding is that we’re referring to that period of time in the late ‘90s when she last attended the pain specialist?
DR BRITTO: Yes, yes.
MR HAWKER: And are you aware of the programs or have had any involvement with those multidisciplinary pain management units at the Royal Perth Hospital?
DR BRITTO: Yes, referring other patients, yes.
MR HAWKER: And the Sir Charles Gairdner Hospital?
DR BRITTO: Yes.
MR HAWKER: You’ve had experience referring patients did you say?
DR BRITTO: Yes, look, I’ve referred patients to them and I’ve had patients come back to me having seen them, yes.
MR HAWKER: And do you agree that, well, I think I know your answer but obviously the applicant in this instance Ms Stitt hasn’t attended either of those particular pain management units at either of those hospitals to date?
DR BRITTO: No, she hasn’t.
The other medical evidence that was in “competition” was that of the Applicant’s treating physiotherapist, Ms Elphick, on the one hand, and that of Mr Papagoras, physiotherapist and clinical adviser on the other. The material difference in the respective views of these two physiotherapists can be summarised as follows:
(a)Ms Elphick’s primary concern was the treatment of the Applicant’s symptoms with some mechanical and functional improvements over time; and
(b)Mr Papagoras’ primary concern was long-term, permanent functional improvement in terms of the Clinical Framework.
In his report dated 14 May 2018 (R4) Mr Papagoras said (at page 9 of his report):
I agree that Ms Stitt reportedly obtains symptomatic relief with physiotherapy treatment, however, the relief appears to be short term and its significance is not clearly demonstrated.
…
… As such, when considering the Clinical Framework principles, as detailed earlier in this report, I disagree with Dr Jenkins opinion that the 2017 and 2018 treatment plans are reasonable treatment for the condition of aggravated thoracic outlet syndrome.
The difference between the two sets of medical opinions, those of Dr Britto, Dr Jenkins and Ms Elphick on the one hand, and those of Dr Rosen and Mr Papagoras on the other hand, seems to be in part, at least, the appropriateness or status of the Clinical Framework and the principles set out therein. The Respondent’s medical evidence points to the physiotherapy treatment proposed by Ms Elphick in the 2017 and 2018 physiotherapy plans as not being aligned with the Clinical Framework because of the lack of measurable functional goals and its failure to adopt a biopsychosocial or multidisciplinary approach. The Respondent concedes that historically the physiotherapy which the Applicant has received has provided symptomatic relief, however, in the context of the Clinical Framework, that is not sufficient for the 2017 and 2018 plans to be considered reasonable treatment in the circumstances given that better, multidisciplinary pain treatment is available which is more in line with modern theories of treatment as reflected in the Clinical Framework.
The Applicant argues that there has been improvement in the Applicant’s range of movement over the period of her physiotherapy treatment and that the plans that have previously been used by Ms Elphick and the 2017 and 2018 plans, do have measurable goals relating to function. That is conceded by the Respondent (Respondent’s SFIC paras 4.8 and 4.11). The main benefit of the physiotherapy treatment is relief from pain and a level of functionality that would not be enjoyed by the Applicant without the physiotherapy treatment.
ISSUE 1 - Is the proposed physiotherapy medical treatment?
Subsection 4(1)(b) and (d) of the SRC Act are in the following terms (as previously defined in [26]):
medical treatment means:
…
(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner…
(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…
The Respondent notes (Respondent’s SFIC para 5.5) the statement of Finn J in Comcare v Watson (1997) 46 ALD 481 at 484 that:
A course of treatment designed to, or aimed at, alleviating the pain caused by an injury or disease is, in my view, properly to be regarded as therapeutic treatment.
And that Madgwick J in Bashar v Comcare Australia (2002) 69 ALD 784; [2002] FCA 837 at [9] agreed with Finn J as follows:
It is perfectly clear from what Finn J said and, with respect, I agree with his Honour, that the purpose of the treatment must be therapeutic. Further, it is perfectly clear that his Honour was saying, and again, with respect, I agree with him, that the notion of therapeutic treatment includes merely palliative treatment, what his Honour referred to as, “the alleviation of the pain of an injury”.
The Respondent also notes (Respondent’s SFIC para 5.7) the comments of the Tribunal in Rope and Comcare [2013] AATA 280 at [31]:
31. These cases amply demonstrate the proper conception of “treatment” within the meaning of “medical treatment” and “therapeutic treatment” under s 4(1). In respect of therapeutic treatment, there is no requirement that the treatment must be provided or supervised by a medical practitioner, although it must be obtained at the direction of a legally qualified medical practitioner. Treatment is a purposeful activity designed, or aimed at, curing or alleviating an injury in which, as Nimmo J said, a person does something in the exercise of his or her skill which is designed to alleviate an injury.
The Respondent’s argument as to why the proposed physiotherapy is not medical treatment is not clear. Having cited the above authorities, all of which would, in the Tribunal’s view, indicate that physiotherapy, even for the relief of pain, is medical treatment for the purposes of s 16 of the SRC Act, the Respondent in subparagraphs 5.8(a) to (e) of its SFIC cites extracts from certain medical reports. Those extracts seem to go to the fact that in some reports there is reference to there sometimes being pain associated with some of the physiotherapy, that the treatments (in Dr Rosen’s view) could now be classified as symptomatic rather than rehabilitative, although he even in making that statement concedes that the treatment may prevent a worsening of the symptoms, and that the improvement in her rehabilitation and function may have plateaued. Even if the disputed statement made in the extracts cited by the Respondent were accepted as correct, nothing identified by the Respondent supports the proposition that the proposed physiotherapy is not medical treatment for the purposes of s 16 of the SRC Act. On the contrary Dr Rosen’s reports consistently concede that there is, or is likely to be, symptom relief delivered by the physiotherapy.
Further, insofar as the Respondent relies on Dr Rosen’s comment, cited at paragraph 5.8(e) of the Respondent’s SFIC, that “based on his own clinical experience and to an extent ‘common sense’… such physiotherapy cannot be described as medically necessary or indicated”, whether they are “medically necessary or indicated” is not relevant in determining whether treatment is “medical treatment” for the purposes of s 16 of the SRC Act.
The Tribunal finds that the proposed physiotherapy treatment included in the 2017 and the 2018 plans is “medical treatment” for the purposes of s 16 of the SRC Act.
ISSUE 2 - Is the proposed physiotherapy in relation to the injury?
At paragraph 5.9 of the Respondent’s SFIC the Respondent concedes that:
…there is no evidence to indicate that the 2017 physiotherapy plan and the 2018 physiotherapy plan are not obtained in relation to the injury.
The Tribunal is satisfied that the 2017 and 2018 plans are in relation to the injury that has been accepted by the Respondent.
ISSUE 3 – Is the proposed treatment reasonable for the Applicant to obtain in the circumstances?
The issue of whether long-term physiotherapy is reasonable treatment in the relevant circumstances for the purposes of s 16 of the SRC Act has been considered in numerous cases before the AAT and elsewhere.
The tribunal noted in Pethes and Comcare [2018] AATA 483, a decision of the tribunal handed down in March 2018, that:
37. Section 16, and the tests it imposes, does not require reasonableness to be considered in absolute terms but in view of the circumstances the particular employee faces – what may be considered as reasonable treatment in the circumstances of one person suffering a certain injury may not be reasonable treatment in the circumstances of another person suffering the same injury. Gray J in Jorgensen and Commonwealth (1990) 23 ALD 321 at [12] said, in relation to s 16(1):
The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of the applicant for compensation.
The Respondent’s SFIC refers to a number of other tribunal decisions that have considered reasonableness of physiotherapy treatment in the context of s 16 of the SRC Act. The Respondent refers to Alamos and Comcare [2014] AATA 629 (Alamos) wherein Deputy President Constance found:
23. However the requirement of subsection 16(1) is that for compensation to be payable in respect of the cost of medical treatment obtained in relation to an injury, the treatment must [sic] “reasonable for the employee to obtain in the circumstances ...”. In considering this requirement, it is necessary to consider all of the circumstances, and not only the beneficial effects experienced by Mrs Alamos.
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.
25. There is significant evidence that the provision of long-term physiotherapy is not in the best interest of Mrs Alamos.
The Respondent points out that in that case, in affirming Comcare’s decision to deny liability for physiotherapy, the tribunal placed weight on the Clinical Framework. The applicant had had around 300 physiotherapy treatments. In that case, as in the present matter, Mr Papagoras had apparently undertaken a clinical panel review on behalf of Comcare and had rejected the continuation of physiotherapy on the basis, amongst others, that it was not in accordance with the Clinical Framework. At [28] of his decision Deputy President Constance cites an extract from the clinical panel review by Mr Papagoras which was as follows:
At this stage of recovery, the provision of regular, ongoing treatment is not consistent with the elements of the Clinical Framework as treatment is not resulting in sustainable improvement, it is not in accordance with a biopsychosocial approach to the management of pain, does not empower the injured worker to take on a greater role in self-management, does not appear to have functional goals and is not evidence-based.
The language used by Mr Papagoras in his clinical panel review of the Applicant’s case on 13 November 2017 (R2.2, T9 at 44) is, with only a few changed words to reflect the particulars of the case, exactly the same as cited above.
The Respondent notes the reference by Deputy President Constance in Alamos to the Clinical Framework at [33] of that decision wherein the Deputy President said:
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.
[footnotes omitted]
The Respondent also referred to Durham and Comcare [2014] AATA 753 (Durham). In that case the applicant, who had injured his back some 17 years earlier, conceded that (at [19] of that decision):
…that physiotherapy was not curative in this case, but noted that the benefit of it was that it kept Mr Durham working. Mr Anforth urged upon me a wait and see approach, submitting that a decision to continue with physiotherapy which could be reviewed at any time, was appropriate.
The tribunal in Durham found (at [62] of that decision):
… 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.
In the case of Popovic and Comcare [2000] AATA 264 (Popovic), to which the tribunal in Durham referred and which was also cited by the Respondent in its SFIC, the applicant had had a total of 362 visits to the physiotherapist over a nine year period, the tribunal found:
[28]…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).
…
[30]… However, Mr Maher continued the applicant’s treatment for some 7 years. In these circumstances the cost of the physiotherapy must also be taken into account where, in a case like this, its expense far outweighs any benefit to the applicant’s physical condition. It is not reasonable for the purposes of the Act for the respondent to be liable for its cost when other treatments (including visits to the general practitioner and medication) are required in any event, and for which Comcare is liable to pay. We said as much in the matter of Sait and Comcare [1999] AATA 984. The applicant’s case is one in which, while temporary relief can be reasonable treatment, it has become unreasonable (Chowdhary and Comcare (AAT 13003, 22 June 1998)). In any event, as indicated above, we are not persuaded that, by September 1997, it was of any therapeutic effect.
In the case of Chowdhary and Comcare [1998] AATA 448 (Chowdhary), referred to by the Tribunal in Popovic and also cited in the Respondent’s SFIC, while that application was determined by the tribunal finding that it did not have jurisdiction, the tribunal did make the observation that:
[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.
The facts in Chowdhary are distinguishable from the present case, as in that case the tribunal emphasised that the plan did not include any accompanying 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”, whereas it appears to this Tribunal that Ms Elphick’s plans do take a more holistic approach. The Tribunal notes the general observation that over time what is to be considered as reasonable in the circumstances may change. In this regard, the fact that in the circumstances applying over the preceding 20 years physiotherapy of the type proposed in the 2017 and 2018 plans was reasonable, does not mean that that will always be the case. The circumstances may change and the same treatment may no longer be considered to be reasonable.
The Respondent also referred the Tribunal to the case of Napier and Comcare [2017] AATA 1452 (Napier). In that case Senior Member Tavoularis, citing the passage from the decision in Popovic quoted at [72] above and went on to observe at [17]:
In making these assessments, it is often of great assistance to the Tribunal to make reference to the Clinical Framework for the Delivery of Health Services (“the Clinical Framework”). Although this document was neither compiled by the Commonwealth Government, nor representative of Commonwealth policy, it provides useful guiding principles for the delivery of health services. I note that the Respondent referenced this in its Statement of Facts, Issues and Contentions (“SFIC”), as did Dr Philip Vecchio in his final report.
[footnotes omitted]
In Napier, the facts of which were similar to the present case, the Tribunal found:
27. It is, to my mind, telling that the Applicant’s condition has not improved, even though she has received some 840 sessions of physiotherapy. While I have no doubt that her physiotherapists were bona fide trying to help her, their treatment models all had themselves – her physiotherapists – at their centre. Even when they recognised that they could have no rehabilitative effect on her conditions, they nevertheless endorsed courses of treatment that relied more on recurring visits on the physiotherapists than on promoting independence in the Applicant. Physiotherapy has thus become for the Applicant a form of reactive, passive treatment. As noted by Mr Papagoras, “[t]he provision of regular, ongoing passive treatment or regular, ongoing supervised exercises can undermine the consideration that self management can be a reasonable long term solution to manage chronic pain and flare ups.” Particularly in light of the long-term nature of the treatment and the Applicant’s mental state, I am inclined to agree with Mr Papagoras – I find that physiotherapy has undermined the Applicant’s self-management of her conditions.
28. I therefore consider that any benefit the Applicant may gain from short-term pain relief or a reduction in the likelihood that her conditions will deteriorate is outweighed by the severe detrimental impact her physiotherapy has had on her self-management of her injury, and the costs it imposes on Comcare. I therefore find that the Applicant’s claimed physiotherapy is not reasonable in her circumstances. Comcare is not liable for it.
Finally, the Respondent referred the Tribunal to another of Senior Member Tavoularis’ decisions, namely, that in Blackwell and Comcare [2017] AATA 1357 in which the Senior Member, again relying on the Clinical Framework for guidance, observed:
18. I also consider that “in the circumstances”, though indicative of a subjective test, does not connote that a decision-maker should assess what is reasonable treatment as being fixed in time. The point of this test being subjective is that decision-makers should take into account changes in the circumstances surrounding the injury – particularly if the treatment is effective. What was initially reasonable treatment may become unreasonable long-term treatment. This long-term perspective is particularly important when one considers the potential long-term dependency of applicants upon treatments that were only ever meant to be temporary, as the Tribunal noted in Popovic and Comcare.
The Senior Member noted that the notion of shifting reasonableness is supported by the tribunal’s decision in Chowdhary as cited above, and that in making an assessment of what was reasonable in the circumstances, “…it is often of great assistance to the Tribunal to make reference to the Clinical Framework…” citing the passage from Napier quoted at [75] above.
Applying the principles emerging from these cases, what are the circumstances that make the treatment proposed by the 2017 and 2018 physiotherapy plans “reasonable” or not? Given that for around 20 years physiotherapy treatment and exercises to relieve pain and to improve function was accepted as reasonable, what, if anything, has changed to make that treatment no longer reasonable? The obvious change is the emergence of the view that the Applicant would be better treated under a multidisciplinary pain management regime coupled with the fact that it seems apparent now that the Applicant’s underlying condition will not improve with continued physiotherapy alone.
As quoted at [48] above, Doctor Jenkins’ evidence was that:
While I agree that the approach to management of chronic neuropathic pain has changed considerably over the past 20 years, and a multidisciplinary approach has been proven across a population to be more effective than medication and/or physiotherapy alone, it is important that any attempted change to Ms Stitt’s treatment regimen is made in a careful and collaborative manner.
I would not oppose Dr Rosen’s suggestion that an attempt be made to improve Ms Stitt’s chronic pain management plan, but it would be inappropriate and potentially harmful to attempt to reduce her longstanding physiotherapy treatment before any measures introduced did measurably improve her condition and she was then possibly able to gradually reduce her longstanding physiotherapy.
While Dr Jenkin’s view was that the Clinical Framework “…is not accepted or widely known tool within the broader medical community of Western Australia…” (A4, answer 3) he did concede that it was, in general “an appropriate and/or applicable tool for assessing whether or not a patient is entitled to recommended treatment of any kind” (A4, question 2).
The Tribunal also notes that Dr Britto’s evidence was that while he considered that the referral of the Applicant to a multidisciplinary pain unit would be “…unlikely to produce significant benefit…given her previous history of similar attempts…” (R2.2, T16), in fact similar attempts had not been made in the past and that the only previous referrals had been to pain specialists and a psychologist sometime in the late 1990s (Transcript, pages 40-41).
It is also not clear from Dr Britto’s evidence whether, when he discussed with the Applicant on 13 December 2016 the referral to the multidisciplinary pain management unit, he was aware that, as part of an agreement pursuant to which the Respondent agreed to pay for two physiotherapy sessions per week from 3 February 2016 to 18 December 2016 (R2.1, T12), the Applicant had agreed to obtain a referral to a multidisciplinary pain management unit and that the Respondent had agreed to pay the reasonable costs of a multidisciplinary pain management program. If Dr Britto was aware of such an agreement, based on his reports and clinical notes, there does not seem to have been any consideration given to the Applicant complying with that agreement.
While the Tribunal is mindful of the comments of Gray J in Jorgensen and Commonwealth (1990) 23 ALD 321 cited at [65] above about the circumstances for the purposes of s 16 of the SRC Act being circumstances relating to the nature of the injury and the proposed treatment, and not to details of the personal life of the Applicant, the Tribunal does consider a relevant circumstance in assessing whether the treatment sought is “reasonable in the circumstances” that the Applicant had previously agreed to obtain a referral to a multidisciplinary pain management unit, had received the benefit of that agreement and had, in effect, failed to follow through with her side of that agreement.
The Tribunal does not accept the Applicant’s excuse for not proceeding with obtaining that referral as agreed, namely that Dr Britto told her that “I don’t feel that it will be of benefit to you, in fact I think that it may well be detrimental” (Transcript, page 25). Dr Britto’s evidence was not consistent with the Applicant’s recollection of that conversation. His evidence was (Transcript page 39):
MR HAWKER: What’s your understanding as to why Ms Stitt, well, do you understand that Ms Stitt’s position to be that she doesn’t wish to attend the multidisciplinary pain management unit?
DR BRITTO: No. No, that’s not what I understand. But the discussion I had with her I think in a consultation is that I don’t know if this will work but you could try it, if you want to. And I really thought that was important to frame it in that way to her to give her the option of doing that. And, look, I think there’s a possibility that referral to a multidisciplinary pain program of the type that’s being suggested here I think there’s a possibility it might not work. I did say that to her, it might not work, it might work, it might not work.
While the Tribunal does not consider that the Applicant’s previous agreement to undertake treatment under a multidisciplinary pain management unit, and the Respondent’s previous agreement to meet the reasonable costs of such a program, to be determinative, or even a significant factor, it is a circumstance to be taken into account in considering whether the treatment proposed by the Applicant is reasonable in the circumstances.
As the authorities cited above establish, what was once accepted as reasonable treatment may, over time and as circumstances change and new treatments become available, no longer be reasonable. The Tribunal accepts, as other tribunals have, that the Clinical Framework is an appropriate tool to be used in assessing whether treatment is reasonable in the circumstances. In the present case the treatment proposed in the 2017 plan and the 2018 plan do not align with the Clinical Framework. The Applicant has now been receiving physiotherapy for some 20 years and her improvement has plateaued. While that physiotherapy may give the Applicant some temporary relief from pain, that, in the Tribunal’s view, is not sufficient to make the proposed physiotherapy treatment reasonable in light of the fact that there is an apparently better treatment path available, a treatment path which the Applicant had previously agreed to go down and the cost of which the Respondent had agreed to meet.
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.
I certify that the preceding 89 (eighty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle
................[sgd]..................................................
Associate
Dated: 24 August 2018
Dates of hearing: 22 and 23 May 2018 Counsel for the Applicant: Mr Bruns Solicitors for the Applicant: JDK Legal Services Counsel for the Respondent: Mr Hawker Solicitors for the Respondent: Sparke Helmore Lawyers
3
10
0